R v Clarke

[2017] QCA 226

SUPREME COURT OF QUEENSLAND

CITATION:

R v Clarke [2017] QCA 226

PARTIES:

R
v
CLARKE, Aaron David
(appellant/applicant)

FILE NO/S:

CA No 309 of 2016
DC No 113 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 18 July 2016, Date of Sentence: 11 November 2016 (Baulch SC DCJ)

DELIVERED ON:

10 October 2017

DELIVERED AT:

Brisbane

HEARING DATE:

16 May 2017

JUDGES:

Morrison and Philippides JJA and Brown J

ORDERS:

1.   The appeal against conviction is dismissed.

2.   The application for leave to appeal against the sentence is refused.

3.   In relation to the offence of Rape on Indictment No 113 of 2015, the Registrar of the District Court is directed to amend the Verdict and Judgment Record to reflect that a total period of 326 days was declared as pre-sentence custody, being time already served under the sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of rape – where the appellant appeals the conviction on three grounds: that there was a miscarriage of justice because the learned trial judge gave a direction based on an erroneous view of the evidence, that the appellant was denied a fair trial because he was cross-examined by the trial judge and that the learned trial judge misdirected the jury as to particular evidence – where there was evidence of consensual and non-consensual sexual activity – where the complainant suffered injuries consistent with sexual activity – where the bed on which the rape occurred had a stain – where the trial judge prompted the jury to consider what they thought of the stain – whether the trial judge directed the jury to consider that the stain was blood – where the trial judge asked the appellant a number of direct questions – where the trial judge is not precluded from asking questions but must not do so where to ask questions would cause prejudicial effect – whether the questions had a legitimate basis – whether the trial judge’s conduct has caused a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of rape – where the complainant sent a text message saying that the activity was consensual – where the complainant’s evidence as a whole suggested that some activity was consensual, but not the digital penetration subject of the rape count – whether the text message rendered the complainant’s evidence so unconvincing that the jury could not have been satisfied beyond reasonable doubt that the appellant was guilty of rape – whether it was open to the jury to convict the appellant of rape

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was sentenced for rape and…