Man to be retrialled on rape charge
A GLADSTONE man convicted of rape will restand trial as a result of inadequate directions handed down by a trial judge.
The Court of Appeal has set aside the conviction of rape against 38-year-old Scott Anthony Rutherford.
Mr Rutherford was sentenced to five years prison in the Gladstone District Court on July 30 after being found guilty of raping a woman on November 13, 2003.
The local cleaner was acquitted of a further two counts of raping the 29-year-old woman at a Toolooa Street address.
An appeal was recently heard in relation to the conviction with a unanimous judgement ordering Mr Rutherford be retried on the charge.
Mr Rutherford had appealed against his conviction on four grounds.
Three of the arguments were rejected by the Court of Appeal. In its findings, however, the court found Judge O'Brien should have directed the jury on the use it could make of evidence about the woman's troubled mood after the third incident.
In delivering the decision, Justice John Jerrard said that on retrial the prosecution would need to consider the way in which it handled evidence of a previous relationship between the defendant and complainant.
Justice Jerrard further stated that no matter what defence was advanced in the retrial, the judge would have to direct the jury that the prosecution must exclude Mr Rutherford was exploiting a vulnerable woman.
The two are believed to have met through a mutual friend. In evidence, Mr Rutherford denied raping the woman, stating any sexual activity was consensual.
An appeal on the ruling had been hinted at by defence counsel Jack Farrell, who told the Gladstone District Court on July 30 he was considering an appeal.
Mr Farrell pointed to the fact the woman had made no complaint until after the third encounter.