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[1993] QCA 459
Court of Appeal (Qld)
1993-11-16
Mr P, Demack J, McPherson J
Original judgment source is linked above.
The application for leave to appeal against the sentence for rape necessarily falls by the way. However, the sentence in respect of the extortion letter needs to be considered. His Honour's sentencing remarks were (p 242):-
I consider the offence of extortion to be a very serious one. It is clear that you intended to use the film, the fruits of your rape, to further threaten and intimidate the complainant, enabling you to subject her to further sexual humiliation and further rape. Finally, she was mature enough to realise that the only way to be rid of you was to report your conduct. She had the strength of character to face the disruption to the family her exposure of you would cause. She had the fortitude to face the humiliation which she would inevitably feel in order to free herself of your dominance.
I consider that the extortion can not be looked upon as part of the rape. It is a distinct and separate offence from the rape. It substantially aggravates the rape. I give you credit for your early plea of guilty to the offence of extortion, but it requires a cumulative penalty. I sentence you to imprisonment for one year.
While His Honour describes the film as "the fruits of your rape", it does not follow that this has meant that he has increased the penalty because of this. The case is a plain one of blackmail. Even if the sexual acts depicted in the video recording were freely consensual , the threat to disclose the recording was a contemptible act deserving of a sentence of one year's imprisonment. Indeed, standing alone, that would be a light sentence. The application for leave to appeal against the sentence for extortion should be refused.
R
Shaw [1993] QCA 459
IN THE COURT OF APPEAL [1993] QCA 459
The more significant matter is whether there should be an order made for a new trial. Since the verdict is to be set aside, it becomes a matter for this Court, in the exercise of its discretion, to decide whether an order should be made for a new trial: see Director of Public Prosecutions for Nauru v. Fowler [1984] HCA 48; (1984) 154 C.L.R. 627 at 630. I have to decide whether the interests of justice require a new trial and this involves, amongst other things, looking at the cogency of the admissible evidence at the original trial.
Mr Campbell, in his cross examination of the appellant, had not clearly suggested to him that he had recently invented this evidence about the cold sore and the reluctance to face the video camera. Consequently, the stage was not clearly set to allow the tender of the appellant's statement: The Nominal Defendant v. Clements [1960] HCA 39; (1960) 104 C.L.R. 476, particularly per Windeyer J, at p 495. Whatever may have been the better course to have followed at the trial, the situation is now clear, that a significant part of the defence case was presented to the jury in a way that prejudiced the appellant. It is not possible to say that he had a fair trial in respect of this matter.