R v MLX - [2020] QDC 234

DISTRICT COURT OF QUEENSLAND

CITATION:

R v MLX [2020] QDC 234

PARTIES:

THE QUEEN

v

MLX

(accused)

FILE NO/S:

Indictment No 1537 of 2019

DIVISION:

PROCEEDING:

Judge Alone Trial

ORIGINATING COURT:

Brisbane

DELIVERED ON:

18 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

29 June 2020; 30 June 2020 and 1 July 2020

JUDGE:

Jarro DCJ

ORDER:

The defendant is acquitted on each count.

CATCHWORDS:
CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – GENERAL – where the defendant was granted leave to be tried by a judge sitting without a jury – where the accused is charged with two counts of rape – whether the accused is guilty or not guilty of two counts of rape

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – CONSENT – GENERALLY – where the defendant is charged with two counts of rape – where the defendant conceded that an act of sexual intercourse occurred – where the defendant said such intercourse was consensual – whether the complainant did not consent to sexual intercourse

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – IGNORANCE AND MISTAKE OF FACT – AVAILABILITY OF DEFENCE OF HONEST AND REASONABLE MISTAKE – GENERALLY – where the defendant relies on, in the alternative, the defence of mistake of fact – where the defendant argues that the defence has been raised – whether the defendant has raised this defence to the requisite standard outlined in Makary - whether the crown has disproved this defence

Criminal Code Act 1899, s 24, s 349

R v FAX [2020] QCA 139, applied.

R v Makary [2019] 2 Qd R 528, cited.

R v Oliver [2020] QCA 76, applied.

COUNSEL:
R J Hood for the Crown

A J Kimmins for the defendant

SOLICITORS:
Director of Public Prosecutions (Qld) for the Crown

Jasper Fogerty Lawyers for the defendant

Introduction

The defendant is charged with two counts of rape alleged to have occurred on 3 August 2018 at Redcliffe. The offences are said to have taken place in his vehicle, a Honda Odyssey. Count 1 is alleged to have occurred when the defendant penetrated the complainant’s vagina with his penis in the front passenger seat of his vehicle, without the complainant’s consent. Count 2 is alleged to have occurred in the rear of the vehicle after the complainant initially fell asleep beside the defendant.
For the defendant to be found guilty on any count, it must be proven by the Crown beyond reasonable doubt that the defendant had carnal knowledge with the complainant, without her consent.
The defendant does not dispute that an act of sexual intercourse occurred on one occasion. However the principal issues in dispute relate largely to the matters of consent and the operation of s 24 of the Criminal Code 1899, being the defence of mistake of fact. It is therefore for the Crown to prove, beyond reasonable doubt, that the two…

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 MLX

Details

AGLC: R v MLX [2020] QDC 234
Case: [2020] QDC 234
Decision Date: 18 September 2020

CaseChat Overview and Summary

The matter before the court involved the defendant, MLX, who was charged with two counts of rape. MLX was granted leave to be tried by a judge sitting without a jury. The primary issue before the court was whether MLX was guilty or not guilty of the two counts of rape. This involved determining whether the complainant had consented to the sexual intercourse or if MLX had an honest and reasonable belief that the complainant had consented.

The court considered the defence of honest and reasonable mistake of fact, as raised by MLX, and whether this defence had been proven to the requisite standard. MLX conceded that sexual intercourse had occurred but claimed it was consensual. The court needed to determine if the defence of honest and reasonable mistake was sufficiently raised and whether the prosecution had disproved this defence beyond reasonable doubt. The court concluded that the prosecution had not disproved the defence of honest and reasonable mistake of fact.

As a result, the court found MLX not guilty on each count of rape. The reasoning was based on the failure of the prosecution to prove beyond reasonable doubt that MLX did not honestly and reasonably believe that the complainant had consented to the sexual intercourse. The court acquitted MLX on both counts.

Orders

Orders of the court

The defendant is acquitted on each count.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

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 MLX [2020] QDC 234
PARTIES:	THE QUEEN v MLX (accused)
FILE NO/S:	Indictment No 1537 of 2019
DIVISION:
PROCEEDING:	Judge Alone Trial
ORIGINATING COURT:	Brisbane
DELIVERED ON:	18 September 2020
DELIVERED AT:	Brisbane
HEARING DATE:	29 June 2020; 30 June 2020 and 1 July 2020
JUDGE:	Jarro DCJ
ORDER:	The defendant is acquitted on each count.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – GENERAL – where the defendant was granted leave to be tried by a judge sitting without a jury – where the accused is charged with two counts of rape – whether the accused is guilty or not guilty of two counts of rape CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – CONSENT – GENERALLY – where the defendant is charged with two counts of rape – where the defendant conceded that an act of sexual intercourse occurred – where the defendant said such intercourse was consensual – whether the complainant did not consent to sexual intercourse CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – IGNORANCE AND MISTAKE OF FACT – AVAILABILITY OF DEFENCE OF HONEST AND REASONABLE MISTAKE – GENERALLY – where the defendant relies on, in the alternative, the defence of mistake of fact – where the defendant argues that the defence has been raised – whether the defendant has raised this defence to the requisite standard outlined in Makary - whether the crown has disproved this defence Criminal Code Act 1899, s 24, s 349 R v FAX [2020] QCA 139, applied. R v Makary [2019] 2 Qd R 528, cited. R v Oliver [2020] QCA 76, applied.
COUNSEL:	R J Hood for the Crown A J Kimmins for the defendant
SOLICITORS:	Director of Public Prosecutions (Qld) for the Crown Jasper Fogerty Lawyers for the defendant