R v Barclay - [1999] QCA 457

SUPREME COURT OF QUEENSLAND

CITATION: R v Barclay [1999] QCA 457
PARTIES: R
v
BARCLAY, Peter William John
(Applicant/appellant)
FILE NO/S: CA No 272 of 1999 DC No 224 of 1998
DIVISION: Court of Appeal
PROCEEDING: Appeal against conviction; sentence application
ORIGINATING
COURT: District Court at Rockhampton
DELIVERED ON: 3 December 1999
DELIVERED AT: Brisbane
HEARING DATE: 1 November 1999, 4 November 1999
JUDGES: Davies and Thomas JJA and Atkinson J
Judgment of the Court
ORDER: Appeal against conviction dismissed. Application for
leave to appeal against sentence refused.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IRREGULARITIES IN RELATION TO JURY – PARTIALITY
Appellant convicted of rape, indecent assault, assault occasioning bodily harm – whether trial miscarried as foreman of jury was previously known to appellant and prejudiced against him – whether court should require appellant to provide evidence of his allegations before dismissal
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAIINST THE PERSON – SEXUAL OFFENCES
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT
Applicant convicted of rape, indecent assault, assault occasioning bodily harm – sentenced to 15 years with declaration of being a serious violent offender – prior conviction for rape, pleaded not guilty, very serious example of offence of rape, lack of remorse – application refused
COUNSEL: The applicant/appellant appeared on his own behalf
Mrs L Clare for the respondent
SOLICITORS: The applicant/appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the
respondent

THE COURT: This is an appeal against conviction and sentence in respect of two convictions of rape, one of indecent assault and one of assault occasioning bodily harm. The notice of appeal contained two grounds, as follows:

1. The trial judge erred in failing to uphold an application by defence counsel to abort the trial and discharge the jury as a result of evidence given by Valmai Enid Bryan, such evidence having been earlier ruled by the trial judge to be inadmissible.
2. The sentence imposed was manifestly excessive.

In his written outline however the appellant went considerably beyond the notice of appeal and stated the following "grounds":

"1. A complete lack of forensic evidence to substantiate the
indecent assault or the rape.
2. Illegally obtained evidence.
3. Inadmissible evidence was presented by the prosecution.

4.

A conflict of statements by witnesses for the prosecution. This is especially evident when statements made at the committal hearing are compared to evidence presented at the trial.
5. Fabrication of evidence.

6.

Evidence presented by the prosecution which was inflammatory extraneous material designed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Barclay

Details

AGLC: R v Barclay [1999] QCA 457
Case: [1999] QCA 457
Decision Date: 3/12/1999

CaseChat Overview and Summary

In the matter of R v Barclay, the High Court of Australia considered an appeal against conviction and a separate application for leave to appeal against sentence. The appellant was convicted of various offences, including assault occasioning bodily harm, indecent assault, and rape, committed against a 35-year-old woman who had been squatting under a house. The complainant alleged that the appellant entered her makeshift accommodation while she slept, severely bashed her, and then committed various sexual offences. The appellant pleaded guilty to the assault occasioning bodily harm but contested the complainant’s claims of sexual activity. The central legal issues involved whether the evidence was sufficient to support the appellant’s convictions and whether procedural errors occurred that warranted a new trial or appeal against the sentence.

The court meticulously reviewed the evidence presented, noting the complainant’s detailed account of the assault and the subsequent sexual offences. The complainant described a brutal attack, corroborated by medical evidence of severe injuries. The court considered the credibility of the complainant’s testimony and the lack of any counter-evidence from the appellant. The court concluded that the evidence was compelling and sufficient to support the jury’s findings of guilt on all charges. The court also examined the procedural fairness of the trial, finding no grounds for a new trial or appeal against the sentence.

In light of the comprehensive review, the court dismissed the appeal against conviction and refused the application for leave to appeal against sentence. The detailed examination of the evidence and procedural integrity affirmed the conviction, and the court found no basis to interfere with the sentence imposed. The final orders of the court were to uphold the conviction and deny the application for leave to appeal against the sentence.

Orders

Orders of the court

Appeal against conviction dismissed. Application for

leave to appeal against sentence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

As some of the grounds allege inadequacy of the evidence it will be necessary to present a short review of the evidence that was called. The evidence The complainant was a 35 year old woman who had been squatting in a makeshift area under a house for about a week. It was enclosed by battens. She had a recent and only passing acquaintance with the appellant who lived in the same street. The Crown case was that the appellant entered her accommodation whilst she slept in the early hours of 4 April 1998 and severely bashed her before performing various indecencies and then raping her. He restrained her for a period of time and raped her again in the morning before going to work. He pleaded guilty to assault occasioning bodily harm at the commencement of the trial and the complainant's account in respect of that assault was not contested. It was her claim of sexual activity that was challenged in cross-examination. The appellant neither gave nor called evidence. The witnesses called by the Crown gave evidence to the following effect. The complainant said that she went to bed at about 9.00 pm and awoke some time later to find the appellant standing over her bed hitting her. He was aggressive and loud, accusing her of sexually assaulting someone's niece and that she had ripped off "Auntie Val's" money. He kept saying "I'll kill you, you bitch". He punched her in the chest and face until she could barely see. He sat on her back and drove her head into the cement floor. He pulled her jaws apart, bending her neck back. When she struggled he hit her harder. He forced his fingers up her nose and bit hard on her ears and back of her head. Still sitting on her he squeezed his hands tightly around her throat. She was unable to breathe and blood ran from an ear. She felt herself losing consciousness. He gouged her eyes and forced a finger into the hollow of her throat. The sexual offences began with his thrusting his tongue in and out of her vagina. He tipped water on her genitals and pushed his fingers into her causing her further pain. Then he pinned her down and effected penile penetration. She said it felt like a knife inside her. Her whole body ached. He finished by saying "I've blown". The appellant remained beside her keeping hold of her in the darkness. He told her that he had to leave for work at 6.00 am and that she should wake him in time for him to go to work. Shortly before 6.00 am she told him the time. He then again performed cunnilingus, chewed on her breasts and again raped her. She said she felt bruised internally. He told her not to go to the police and to wait for his return from work. The complainant lost consciousness for a time but by 8.00 am had dressed and walked to the police station. She made a complaint. At that time her facial injuries appeared "severe" and she was limping, crying and pleading for help. Medical evidence was called which confirmed that shortly after midday she had bruised lips which were swollen on both the inside and outside; a lacerated right ear and a left ear which was red and swollen with dried blood; the area behind the left ear was swollen and tender. The nose was swollen and bruised; the maxillary region was swollen and tender; the throat was bruised and swollen; two fingers were swollen and tender; the left wrist contained a bite mark; the thighs and right hip were bruised and the left buttock was tender. A dental expert identified bite marks on the forehead, right ear and possibly forearm.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Barclay [1999] QCA 457
PARTIES:	R v BARCLAY, Peter William John (Applicant/appellant)
FILE NO/S:	CA No 272 of 1999 DC No 224 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction; sentence application
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	3 December 1999
DELIVERED AT:	Brisbane
HEARING DATE:	1 November 1999, 4 November 1999
JUDGES:	Davies and Thomas JJA and Atkinson J Judgment of the Court
ORDER:	Appeal against conviction dismissed. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IRREGULARITIES IN RELATION TO JURY – PARTIALITY
Appellant convicted of rape, indecent assault, assault occasioning bodily harm – whether trial miscarried as foreman of jury was previously known to appellant and prejudiced against him – whether court should require appellant to provide evidence of his allegations before dismissal
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAIINST THE PERSON – SEXUAL OFFENCES
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT
Applicant convicted of rape, indecent assault, assault occasioning bodily harm – sentenced to 15 years with declaration of being a serious violent offender – prior conviction for rape, pleaded not guilty, very serious example of offence of rape, lack of remorse – application refused
COUNSEL:	The applicant/appellant appeared on his own behalf Mrs L Clare for the respondent
SOLICITORS:	The applicant/appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

"1.	A complete lack of forensic evidence to substantiate the indecent assault or the rape.
2.	Illegally obtained evidence.
3.	Inadmissible evidence was presented by the prosecution.
4.	A conflict of statements by witnesses for the prosecution. This is especially evident when statements made at the committal hearing are compared to evidence presented at the trial.
5.	Fabrication of evidence.
6.	Evidence presented by the prosecution which was inflammatory extraneous material designed…