R v Sailor - [1993] QCA 23

IN THE COURT OF APPEAL [1993] QCA 023

SUPREME COURT OF QUEENSLAND

C.A. No. 301 of 1992

Before the Court of Appeal
Mr. Justice Pincus
Mr. Justice McPherson

Mr. Justice Byrne

T H E Q U E E N
v.
JAMES ROBERT SAILOR

(Appellant)

JUDGMENT - PINCUS J.A.

Delivered the Twenty-sixth day of February 1993

Counsel:

P. Rutledge for the Crown
S.E. Herbert Q.C. for the Appellant

Solicitors:

The Director of Prosecutions for the Crown
The Legal Aid Office for the Appellant

Hearing Date(s):

February

1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 301 of 1992

T H E Q U E E N
v.
JAMES ROBERT SAILOR

(Appellant)

JUDGMENT - PINCUS J.A.
Delivered the Twenty-sixth day of February 1993

As is explained in the reasons of McPherson J.A., which I have had the advantage of reading, the appellant was convicted of two counts, one of rape and another of attempted rape. The grounds of appeal argued were two: that the trial judge erred in admitting into evidence a complaint not made at the first reasonable opportunity and wrongly directed the jury that certain evidence of the complainant's distressed condition was capable of constituting corroboration. I am in respectful agreement with McPherson J.A. that there was admissible evidence of fresh complaint but, contrary to his Honour's view, think that the evidence of distress at the time of that complaint was fit for the jury's consideration as some corroboration of the complainant's story that there was intercourse induced by use of a knife. Sexual intercourse was admitted, but the appellant said, in effect, that there was enthusiastic consent.

The complainant gave evidence that she arrived home about 1.40 a.m. after having been raped. She said the "dogs had waken Dad up" and her father was "coming out to see what the noise was". She gave an explanation, set out by McPherson J.A., as to why she had not complained to her father; that was not on the face of it implausible. In cross-examination, the complainant was asked further questions about this incident and in response to them said, in effect, that she walked into her father's bedroom, identified herself, apologised, looked at the time and left. A question was asked which perhaps assumed that the light in the room was off:

"Yes. So there was enough light in the room for you to see the clock?--It's a digital clock - it's a digital, radio clock".

At that stage, according to the complainant, she was not crying, but was upset. The complainant's father was not called to give evidence. In the circumstances, it does not appear to be of critical importance that there was no evidence from him about the complainant's condition at the time of the encounter just described. However, about 7 a.m. the complainant's mother phoned her from Perth to make an inquiry and at that time the complainant's father was sitting by the phone; one might have expected the father would then have noticed…

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 Sailor

Details

AGLC: R v Sailor [1993] QCA 23
Case: [1993] QCA 23
Decision Date: 26/02/1993

CaseChat Overview and Summary

The Court of Appeal in the Supreme Court of Queensland heard an appeal by James Robert Sailor against his conviction on two counts, one of rape and another of attempted rape. The appellant contended that the trial judge had erred in admitting evidence of a complaint not made at the first reasonable opportunity and had wrongly directed the jury that evidence of the complainant's distressed condition could constitute corroboration. The appeal was dismissed by the Court of Appeal, with Pincus J.A. concluding that the evidence of distress observed by Gail and Kelly was not so tenuous or remote as to be incapable of corroboration.

The legal issues addressed by the court involved the admissibility of a complaint made after the first reasonable opportunity and the jury's ability to consider evidence of distress as corroborative of the complainant's account of the events. The court examined whether the evidence of distress was sufficiently proximate to the events in question to be considered corroborative, and whether the trial judge had correctly directed the jury on this point. The Court of Appeal held that the evidence of distress observed by Gail and Kelly was not too remote in time to be considered corroborative, and that the trial judge's direction to the jury on this issue was appropriate.

Orders