R v Lothian - [2018] QCA 207

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lothian [2018] QCA 207

PARTIES:

R
v
LOTHIAN, Adam Keith Borge
(appellant/applicant)

FILE NO/S:

CA No 36 of 2018
DC No 1837 of 2017

DIVISION:

Court of Appeal

PROCEEDINGS:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 2 February 2018; Date of Sentence: 9 February 2018 (Jones DCJ)

DELIVERED ON:

Date of Orders: 10 May 2018
Date of Publication of Reasons: 4 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2018

JUDGES:

Sofronoff P and Morrison and Philippides JJA

ORDERS:

Date of Orders: 10 May 2018

1. Appeal against conviction and sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the appellant/applicant was convicted after a trial of one count of sexual assault and one count of assault occasioning bodily harm – where the complainant and the appellant/applicant had previously been in a relationship and happened to attend the same nightclub one night by pure coincidence – where the complainant gave evidence that the appellant/applicant lifted her dress on two occasions that night and grabbed her on the vagina – where after the complainant left the nightclub the appellant/applicant approached her and pushed her sideways into a taxi – where it was submitted that CCTV camera footage contradicted the complainant’s account and rendered it virtually impossible that the offences could have occurred – whether the verdicts were unreasonable or cannot be supported having regard to the whole of the evidence

APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant/applicant was sentenced to concurrent periods of 12 months’ imprisonment – where on count 1 that was suspended after four months, with an operational period of 12 months, and on count 2 a fixed parole release date was set after serving four months – where when the appeal was heard the appellant/applicant had served three months – where it was submitted by the appellant/applicant that the sentence ought to have reflected the marginal evidence justifying the case – where it was submitted by the Crown that the offending occurred against the background of persistent harassment of the complainant – whether the sentence was manifestly excessive

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
R v AQ[2003] QCA 479, considered
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
R v Bradford[2007] QCA 293, considered
R v Mazza[2017] QCA 136, cited
R v Murray[2005] QCA 188, considered
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, followed

COUNSEL:

J S Shepley for the appellant/applicant
T A Fuller QC for the respondent

SOLICITORS:

O’Sullivans Law Firm for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I am of the view that, for the reasons given by Morrison JA, the…

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 Lothian

Details

AGLC: R v Lothian [2018] QCA 207
Case: [2018] QCA 207
Decision Date: 4 September 2018

CaseChat Overview and Summary

The appellant was convicted of sexual assault and assault occasioning bodily harm and was sentenced to concurrent terms of imprisonment, with one term suspended after four months. The appellant appealed both his conviction and sentence, arguing that the verdict was unreasonable and the sentence was manifestly excessive. The court was required to determine whether the verdicts were unreasonable or could not be supported having regard to the whole of the evidence, and whether the sentence was manifestly excessive. The court found that the verdicts were open to the jury and could be supported on the evidence, and that the sentence was not manifestly excessive. The appeal against conviction and sentence was dismissed.

The appellant submitted that the CCTV footage contradicted the complainant's account and made it virtually impossible that the offences could have occurred. The court noted that the footage was of limited quality and did not capture the relevant events. The court found that the complainant's evidence was credible and reliable, and that the jury was entitled to accept it. The court also noted that the appellant had a history of harassing the complainant, which was relevant to the assessment of the credibility of her evidence. The court found that the verdicts were open to the jury and could be supported on the evidence.

The appellant also submitted that the sentence was manifestly excessive, given the marginal evidence justifying the case. The court noted that the offences were serious and involved violence against the complainant. The court also noted that the appellant had a history of harassing the complainant, which was relevant to the assessment of the appropriate sentence. The court found that the sentence was not manifestly excessive, and that it reflected the seriousness of the offences and the need to deter the appellant and others from engaging in similar conduct. The appeal against conviction and sentence was dismissed.

Orders

Orders of the court

Date of Orders: 10 May 2018

1. Appeal against conviction and sentence dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The complainant left the nightclub in the company of a male friend. Whilst they were talking outside the nightclub the appellant approached them, causing her to run towards the nearby taxi rank. The appellant followed her and pushed her sideways into a taxi, causing her to fall to the roadway. He then ran off as others came to the complainant’s aid. That formed the basis of count 2, the assault occasioning bodily harm. The defence case was that the appellant did not cause the complainant to fall.The complainant’s evidence The complainant met the appellant in February 2015 and they dated until August 2015. During that time they were in a proper relationship, but after that they contacted each other only on occasions, and were not together anymore. Until March 2016 that contact consisted of phone calls or texts, the sending of some explicit photographs from one to the other, and on occasions seeing one another.[2][2]Appeal Book (AB) 47. In March 2016 the complainant broke it off saying that she did not want to see or talk with him anymore. At first he agreed, but then continued to contact her.[3][3]AB 47 l 45. On 27 March 2016 she went to a nightclub where she saw the appellant. She ignored him and went to the opposite side of the room. He tried to initiate a conversation, but she declined, asking to be left alone. At a later point he initiated contact again and pushed her. She pushed him back and slapped him, asking to be left alone. As she walked away he threw a drink on the back of her dress.[4][4]AB 48 l 30 to AB 49 l 2. Some time later, in the area near the toilets, the appellant came up to her and “he grabs my vagina very hard – squeeze it very hard and – to hurt me”.[5] The complainant said he did it two times, that time and then another time later. As well, he was lifting her dress, which she characterised as being to shame her or mock her.[6][5]AB 49 l 14.[6]AB 49 ll 19-29. The complainant said that some time later she was talking to another person when the appellant came up and showed that person a picture of her vagina. It was a picture she had sent a couple of days before. She decided she had had enough, so she went to the bouncers and told them and eventually they kicked him out.[7][7]AB 50 ll 19-26. The complainant said she left the club at about 2.00 am. She left with a male friend called Andrew. As they were outside the appellant approached Andrew and “then he shows him my picture of my vagina again, saying that that’s me”.[8] She described the appellant as being “really aggressive”. She started to run to the taxi rank “because I … was scared so I thought I had better take advantage of this and run, so I just ran and I went to the cab rank and I was nearly going to get into the cab”.[9] She said that the appellant chased her and then pushed her hard against the taxi. He then ran off.[10][8]AB 51 l 17.[9]AB 51 ll 30-33.[10]AB 51 ll 34-45. Photographs of her injuries that night were admitted as exhibit 1. The complainant was shown CCTV footage and identified various people in it, including herself and the appellant.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Lothian [2018] QCA 207
PARTIES:	R v LOTHIAN, Adam Keith Borge (appellant/applicant)
FILE NO/S:	CA No 36 of 2018 DC No 1837 of 2017
DIVISION:	Court of Appeal
PROCEEDINGS:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 2 February 2018; Date of Sentence: 9 February 2018 (Jones DCJ)
DELIVERED ON:	Date of Orders: 10 May 2018 Date of Publication of Reasons: 4 September 2018
DELIVERED AT:	Brisbane
HEARING DATE:	10 May 2018
JUDGES:	Sofronoff P and Morrison and Philippides JJA
ORDERS:	Date of Orders: 10 May 2018 1. Appeal against conviction and sentence dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the appellant/applicant was convicted after a trial of one count of sexual assault and one count of assault occasioning bodily harm – where the complainant and the appellant/applicant had previously been in a relationship and happened to attend the same nightclub one night by pure coincidence – where the complainant gave evidence that the appellant/applicant lifted her dress on two occasions that night and grabbed her on the vagina – where after the complainant left the nightclub the appellant/applicant approached her and pushed her sideways into a taxi – where it was submitted that CCTV camera footage contradicted the complainant’s account and rendered it virtually impossible that the offences could have occurred – whether the verdicts were unreasonable or cannot be supported having regard to the whole of the evidence APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant/applicant was sentenced to concurrent periods of 12 months’ imprisonment – where on count 1 that was suspended after four months, with an operational period of 12 months, and on count 2 a fixed parole release date was set after serving four months – where when the appeal was heard the appellant/applicant had served three months – where it was submitted by the appellant/applicant that the sentence ought to have reflected the marginal evidence justifying the case – where it was submitted by the Crown that the offending occurred against the background of persistent harassment of the complainant – whether the sentence was manifestly excessive M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited R v AQ[2003] QCA 479, considered R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited R v Bradford[2007] QCA 293, considered R v Mazza[2017] QCA 136, cited R v Murray[2005] QCA 188, considered SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, followed
COUNSEL:	J S Shepley for the appellant/applicant T A Fuller QC for the respondent
SOLICITORS:	O’Sullivans Law Firm for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent