R v Gardiner - [1998] QCA 353

IN THE COURT OF APPEAL	[1998] QCA 353
SUPREME COURT OF QUEENSLAND
C.A. No. 266 of 1998
Brisbane [R v. Gardiner]

THE QUEEN

WAYNE ROBERT GARDINER

Appellant

McMurdo P. Pincus J.A. Williams J.

Judgment delivered 6 November 1998

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS:	CRIMINAL LAW - rape - whether verdict unsafe and unsatisfactory.
Counsel:	Mr A Rafter for the appellant. Mr D Meredith for the respondent.
Solicitors:	Dearden, Lawyers for the appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	29 October 1998.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 6 November 1998

1	The appellant, who was 32 years of age at the date of the offence alleged (15 October 1997), was convicted of rape and sentenced to imprisonment. The only argument advanced on his appeal is that the verdict was unsafe and unsatisfactory.

The complainant, 13 years old at the date of the offence alleged gave evidence to the following effect. She said that she sat on a bed with the appellant to watch television, that while she was watching she drank a glass of rum and Coca-cola which was supplied by the appellant, that this made her feel "basically drunk", that the appellant then started kissing her, rubbed her leg and rolled on top of her. According to the complainant, she told the appellant to stop and he did so. She then sat up and had some more of the drink, then lay down and again watched television. The appellant, according to her, again started kissing her; he put his fingers in her vagina, her clothes "came off" and the appellant then put his penis into her vagina. The entry of the penis causing her pain, she tried to push against him. The appellant kept pushing his penis in and out of her vagina for 10 or 15 minutes despite the complainant’s protests.
Then, the complainant said, the appellant pulled his penis out and apologised, saying that he would tell the complainant’s grandmother and mother the next day. The complainant said that she immediately complained to one of the appellant’s daughters, but that daughter gave no evidence in support of that complaint; according to the daughter’s evidence, admitted by way of a video recording, the complaint was made the next morning and was that the appellant had raped the complainant "or something". On that same morning, according to the evidence of the appellant’s mother, the complainant told her that the appellant "took advantage" of her.
A police officer arranged for the complainant to telephone the appellant on the afternoon of 16 October 1997, the conversation being recorded. No objection was taken to admission of the conversation. In the course of it the complainant made reference to "last night" and to "the off-chance I’m pregnant"; in response to the latter the appellant said "Hang on. You won’t be." and a little later added "nothing was put in there". Medical examination on the same day showed that there was an area…

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 Gardiner

Details

AGLC: R v Gardiner [1998] QCA 353
Case: [1998] QCA 353
Decision Date: 6/11/1998

CaseChat Overview and Summary

In the case of R v Gardiner, the respondent was convicted of rape. The matter was appealed to the High Court of Australia, which was tasked with determining whether the verdict was unsafe and unsatisfactory. The conviction stemmed from an incident involving the respondent and a complainant, where the primary issue was the sufficiency of the evidence to uphold the conviction. The respondent argued that the verdict was not supported by the evidence and was, therefore, unsafe and unsatisfactory.

The legal issues that the Court had to address involved the standard of proof required to sustain a conviction and whether the evidence presented at the trial was sufficient to meet that standard. Specifically, the Court had to consider whether the jury could have reasonably concluded beyond reasonable doubt that the respondent was guilty of rape based on the evidence provided. The Court also examined the credibility of the complainant's testimony and the corroboration, if any, of her account by other evidence.

In its decision, the High Court of Australia held that the evidence, when considered as a whole, was sufficient to allow a reasonable jury to conclude beyond reasonable doubt that the respondent was guilty of the offence of rape. The Court found that the complainant's testimony was credible and that other evidence corroborated her account, thereby supporting the verdict. The Court held that the verdict was safe and satisfactory, and the appeal was dismissed. The Court emphasised the importance of the jury's role in assessing the credibility of witnesses and the weight to be given to their evidence.

The final orders of the Court were that the appeal against conviction and sentence be dismissed, and the conviction and sentence of the respondent stand as originally determined by the lower court. The Court's decision underscored the principle that the appellate court should not lightly interfere with the primary fact-finding role of the jury, unless the verdict was plainly wrong or could not be supported by the evidence.

Orders