R v Edwards - [1997] QCA 472

[1997] QCA 472

COURT OF APPEAL
MACROSSAN CJ
DAVIES JA

DOWSETT J

CA No 370 of 1997
THE QUEEN
v.

KENNETH JOHN EDWARDS

Appellant/

Applicant

BRISBANE

..DATE 25/11/97

JUDGMENT
251197 T5/JJD24 M/T COA272/97

THE CHIEF JUSTICE: I shall ask Justice Davies to deliver his reasons first.

DAVIES JA: The appellant was convicted on two counts of rape on 5 September this year after a trial by jury. He was sentenced to three years imprisonment on the first of those counts and seven years imprisonment on the second. The complainant, on each count, was his wife. They were separated at the time of each of the offences. They had been married in 1991 and they separated in December 1996.

The appellant then went to live in Newcastle. Shortly afterwards he returned to the matrimonial home, promising the complainant (in her words) that "He would not hassle me"; that he would be good and that he would stop his gambling. She agreed to have him back, in her words, "Just to be a father to the boys." She told him, amongst other things, that she did not want to resume sexual relations with him and presumably he returned, on her evidence, on that basis.

Nevertheless, on one occasion after his return, they did have intercourse. This was on 21 December after the family had been to a Carols by Candlelight concert. The complainant said about the incident that she did not feel like it, but she allowed it to happen. The appellant on the following night, however, again sought to have intercourse with her and she refused.

He persisted, she left the bedroom and went into the lounge room. She had a cigarette there and she later came back to the bedroom. There was a further verbal exchange between them

2 JUDGMENT

251197 T5/JJD24 M/T COA272/97

during the course of which he said he was going to kill himself.
She then got into bed and he then held her arms, apparently

with a view to attempting to have intercourse with her. She

started to cry and in fact screamed out.

He then asked her once again if they could have intercourse and she said "No." She then pushed him away as he attempted to undress her. He managed to partially undress her, during the course of which she scratched him near the ear. I should mention in respect of those scratches that at a later point of time when he was being interviewed by a police officer, the police officer referred to those scratches and asked him how he got them and he said he did not know.

Returning to this episode, during the course of this episode, one of the children woke up and came to where they were, no doubt attracted by her calling out and on one occasion screaming. He then told the child to go back to bed. The complainant went back to the kitchen and, on her version, attempted to dress herself again. He came in and…

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 Edwards

Details

AGLC: R v Edwards [1997] QCA 472
Case: [1997] QCA 472
Decision Date: 25/11/1997

CaseChat Overview and Summary

The case of R v Edwards involved an appeal against the conviction and sentence of Kenneth John Edwards, who was found guilty of two counts of rape against his estranged wife. The Court of Appeal, comprising Macrossan CJ, Davies JA, and Dowsett J, heard the appeal on 25 November 1997. The central legal issues revolved around whether the trial judge had correctly directed the jury on matters such as corroboration, the admissibility of evidence concerning consensual intercourse prior to the alleged rape, and the propriety of the jury's consideration of the appellant's good character. Additionally, the court assessed whether the sentence imposed was manifestly excessive.

The court found that the trial judge had adequately directed the jury on the evidence supporting the complainant's testimony, and there was no requirement for a specific direction on corroboration. The evidence of consensual intercourse two days before the alleged rape was deemed relevant to the relationship and circumstances surrounding the incident, thus properly admitted. The court also determined that the trial judge had correctly informed the jury about the appellant's good character. Finally, the court concluded that no additional warning was necessary regarding the marital relationship between the parties. Therefore, the appeal against conviction was dismissed as each ground lacked merit.

Regarding the sentence, the court acknowledged that the imposed seven-year imprisonment for the second offence, committed under a threat of serious injury with a screwdriver and in the presence of children, was severe. However, the court found that the sentence was not manifestly excessive, and thus the application for leave to appeal against the sentence was refused. The final orders of the court dismissed the appeal against conviction and refused the application to appeal against the sentence.

Orders