R v Jones

[1997] QCA 133

[1997] QCA 133

COURT OF APPEAL
FITZGERALD P
DAVIES JA

McPHERSON JA

CA No 54 of 1997
THE QUEEN
v.

BRENDAN NOEL JONES	Appellant
BRISBANE ..DATE 23/04/97
JUDGMENT
230497 T13/JAP/20 M/T COA 71/97

McPHERSON JA: The appellant was convicted of two counts of rape committed upon a 47-year-old woman on the night of the 23rd, or the early morning of the 24th, January 1996. They had met in the company of others at a tavern where they were drinking. Afterwards, the appellant, the complainant and another woman companion hired a taxi to go home.

On arriving at the block of units where the complainant lived the appellant got out of the taxi with her, and she let him into her flat where, according to her account of it, sexual intercourse took place against her will. The appellant claimed there had been three acts of sexual intercourse and one of anal penetration, which she denied.

The only issue for the jury was whether the sexual intercourse took place with her consent. She said she had been forced to submit to it by the use of violence upon her by the appellant. There was some strong independent evidence tending to confirm her testimony to that effect. She had abrasions and marks on her skull consistent with having been pulled by the hair. She had a bruise on her shoulder, very dark bruises under both arms, tender and bruised inner thighs, a split behind the vaginal area, bruising and abrasions on her back, a bruised shin and a weeping abrasion on her outer wrist. In addition, her midnight screams for help had been heard by an occupant of a nearby unit.

The appellant's explanation was that the marks on her body and the screams were all part of what is described as "vigorous" and "urgent" sexual intercourse, and so could not be used to confirm

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her evidence. Whether or not that was a plausible explanation of what happened, and was one that was sufficient to raise a reasonable doubt, were essentially matters for the jury, on which they are entitled to bring to bear their combined experience and common sense.

The verdicts that they returned demonstrate that they were satisfied beyond a doubt of the appellant's guilt. Their conclusion was one which was fairly and reasonably open to them on the evidence. The appellant was, in my opinion, rightly convicted of the counts of rape and the additional count of deprivation of liberty which was joined with those two charges.

The appeal should, in my view, be dismissed. There was some question about whether the appellant was applying for leave to appeal against sentence. The sentence imposed was six years. I would say, with respect to that, that having regard to his not inconsiderable record of convictions, and to the character of the offence and the circumstances of it in this particular case, that he might perhaps count himself fortunate in having received a sentence as moderate as that.

The appeal should, I think, be dismissed and, if there is an application for leave to appeal against sentence, it should be refused.

THE PRESIDENT: I agree. No separate argument was directed to the conviction of the appellant for deprivation of liberty and although there were criticisms which could properly be levelled against the testimony of the complainant the matters were fit

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matters for the jury's decision and no ground has been shown
upon which this Court should or could interfere.

I agree that the appeal should be dismissed and that if there is an application for leave to appeal against sentence it should be refused.

DAVIES JA: I also agree.

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