The Queen v Edwards[1997] QCA 472

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 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 again held her in a way in which she said he was trying to choke her.

At this point, she was again screaming and crying out and he then said to her "I am going to break your jaw."  It is not surprising that one of the children again woke up and came to where they were. She then managed to escape him and went to the telephone and started to call the police. He took that from her and he then said to her "Either you give it to me, or I will hurt you."

She then went into her son's room and attempted to get into bed with him. The appellant demanded that she get out of bed and she then went into the lounge room and he threw her onto a settee in that room. She was again crying and screaming. He covered her mouth with his hand to stop her crying and again threatened her, saying, "I will break your jaw" or "I will wreck your pretty face."

He slapped her across the face. Again one of the children came into the lounge room and he, the appellant, called out to him to "Go away."  She then again managed to escape his grasp and tried to telephone the police. He then again overpowered her and forcefully had intercourse with her. After the completion of that intercourse, he wiped his penis on her dressing gown and said "There is more where that came from."

He then left the house and she telephoned the police. The police officer who took the call noticed that she was distressed. He, the husband, returned to the house. He must have by this time known that she had rung the police, because he accused her of that. She had in fact taken the house key from his key ring and locked the house so he could not get in.

When the police constable arrived he noticed that she was upset and she then went to speak to the police officer. The appellant was examined by a doctor. It was observed that he had those marks on his neck and he said, when asked, that he had no idea where they came from. The dressing gown of the complainant was examined. Semen stains, consistent with those of the appellant, were found and some epithelial cells, consistent with having come from her vagina were also found there.

Semen consistent with the appellant was found on the complainant's underpants and there was also a blood stain. It was not disputed at the trial, so it is accepted that intercourse took place that night, the question being whether in fact it was with his wife's consent. He denied committing the offence, but he did not give or call evidence at his trial.

He was charged with rape on 23 December and early in January he approached the complainant to, as she put it, drop the charges. She spoke to a police officer having, after a lot of persuasion, agreed to do so and the police officer, not unsurprisingly, told her there might be some difficulty about that. The appellant was then allowed out on bail, but a domestic violence order was also made against him.

Nevertheless, it seems the complainant was willing to see the appellant from time to time for the purpose of allowing him to see his children and as it appears from what I am about to say, with a view to exchanging the family car. On the night of 15 January he, the appellant, returned to the house to make arrangements for exchange of the car. At that point, the complainant gave him a bag with his belongings in it.

During the course of their conversation, he took a screwdriver out of the bag, made a threatening motion with it to her and said, "I could get 10 years for stabbing you."  Whilst holding the screwdriver in a threatening manner, he demanded again intercourse from her. He told her to take off her clothes. She told him that she had her period.

He said, "I do not care. Either I stab you, or you fuck me."  He demanded that she remove the tampon which she did. He then got on top of her and had intercourse with her. He asked her if she was going to complain to the police and she said, "No" and the reason she later gave was that she was afraid of him. Nevertheless, she telephoned the police. Again, it was noted that she was distressed. 

Shortly after that her clothes were again examined. A handkerchief into which the appellant had ejaculated was also obtained and unsurprisingly, semen consistent with his was found in the handkerchief and blood consistent with the complainant's was found.

The appellant has appealed to this Court against his conviction and also seeks leave to appeal against the sentences which were imposed. The grounds of his appeal against his conviction are four in number and he appeals against his sentence on the ground that it was manifestly excessive.

The first ground of his appeal against conviction is that the trial Judge failed to direct the jury properly on corroboration. That supported the complainant's testimony. In fact there was, as appears from what I already said, quite a deal of evidence which supported the complainant's testimony and the learned trial Judge directed the jury about that. He quite properly thought it was unnecessary to direct specifically with respect to corroboration. Now, as I have said, he directed them with respect to evidence which supported the complainant's evidence. In my view there is no substance in that ground.

The second ground of appeal is that the Judge allowed the Crown to lead evidence which deprived the defence of proper cross-examination. That was evidence of consensual intercourse two days before the alleged rape. That is the intercourse to which I have already referred.

The only basis upon which it seems to have been suggested that evidence of that should have been excluded was that it deprived the defence of what may have seemed to have been a potentially damaging line of cross-examination. Plainly it was relevant to the relationship between the parties and the period immediately before the incident and, in my view, that evidence was properly admitted.

The third ground of appeal was that the trial Judge failed to properly direct the jury on evidence of good character. That appears to be factually incorrect. There was evidence at the trial that the appellant had no criminal convictions and the trial Judge directed the jury that they could take that into account as evidence of good character in determining whether or not he was guilty.

The fourth ground of appeal is that the Judge failed to give an appropriate warning. It is not at all clear what that warning was supposed to be but reference appears in the transcript of evidence to a suggestion that something should have been said about the fact that it was a husband and wife situation. In my view, there was nothing which the learned trial Judge should have said in this respect that he did not say. It follows from what I have said so far that each of the grounds of conviction should fail and that, in my view, the appeal against conviction should be dismissed.

The application for leave to appeal against sentence is, of course, substantially against the sentence of seven years imprisonment imposed in respect of the second defence.

No complaint could properly be made in respect of the sentence of three years imposed on the first offence.

There were a number of serious aspects of the second offence. In the first place it was committed whilst the appellant was already on bail in respect of an offence of rape against the same complainant and although this appears to be of lesser importance because of the circumstances in which contact was permitted between the parties by the complainant, there was a domestic violence order against him.

As to the actual circumstances of the rape it appears, from what I have already said, that it was a rape committed under a threat of what could have been quite serious injury with a screwdriver. That is actually a threat of stabbing the complainant with a screwdriver. It was a rape committed in the home in circumstances in which children were present. In addition to that, the appellant has, at no stage, shown any remorse for his actions. In fact it appears from his apparent defence below and his persistence with this appeal that he continues to assert that the intercourse on each of these occasions took place with consent. The sentence which was imposed of seven years may, in fact, seem a little high but, in my view, it was not such as could satisfy me that it was manifestly excessive. I would therefore refuse the application for leave to appeal against sentence.

THE CHIEF JUSTICE:  I agree.

DOWSETT J:  I also agree.

THE CHIEF JUSTICE:  The orders of the Court are then as Mr Justice Davies has indicated. You understand what we have done?  Your appeal against conviction is dismissed and the application to appeal against sentence has been refused.

APPELLANT:  Yes.

THE CHIEF JUSTICE:  All right, then.