R v Mrzljak

Case [2004] QCA 420

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mrzljak [2004] QCA 420

PARTIES:

R
v
MRZLJAK, Esad Eso
(appellant)

FILE NOS:

CA No 165 of 2003
DC No 768 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2004

JUDGES:

McMurdo P, Williams JA and Holmes J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made, Williams JA and McMurdo P dissenting in part   

ORDERS:

1.   Appeal allowed

2.   Convictions quashed

3.   Re-trial ordered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL ALLOWED – where appellant was convicted of two counts of rape – where the complainant was intellectually impaired – whether the trial Judge misdirected the jury on the question of the complainant’s cognitive capacity to consent to intercourse


CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – IGNORANCE AND MISTAKE OF FACT – HONEST AND REASONABLE BELIEF – GENERALLY – where the appellant did not speak English – where fresh evidence showed that the appellant suffered from mild mental retardation – whether evidence of intellectual impairment and language difficulties is relevant to the assessment of the reasonableness of mistake under s 24 of the Criminal Code

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – INSANITY – GENERALLY – whether the excuse of insanity under s 27 of the Criminal Code was available to the appellant

Criminal Code (Qld), s 24, s 27, s 216, s 229F, s 348

Daniels v R (1989) 1 WAR 435, distinguished
GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183, considered Hart v R [2003] WASA 213, cited
Jiminez v R (1992) 173 CLR 572, considered
Masciantonio v R (1995) 183 CLR 58, considered
Osland v R (1998) 197 CLR 316, considered
Ostrowski v Palmer (2004) 78 ALJR 957, cited
R v Fitzpatrick (1926) 19 Cr App Rep 91, cited  
R v Graham [1995] QCA 190; CA No 101 of 1995, 19 May 1995, cited
R v Julian (1998) 100 A Crim R 430, cited
R v Lavallee [1990] 4 WRR 1, considered
R v Kagan 2004 NSCA 77; June 10, 2004, considered
R v Kusu [1981] Qd R 136, cited
R v Masters [1987] 2 Qd R 272, considered
R v McCullough [1982] Tas R 43, considered
R v Miers [1985] 2 Qd R 138, cited
R v Nelson 71 CCC (3d) 449, considered
R v Pacino (1998) 105 A Crim R 309, distinguished
Stingel v R (1990) 171 CLR 312, cited

COUNSEL:

B G Devereaux for the appellant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant 
Director of Public Prosecutions…

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Details
AGLC
R v Mrzljak [2004] QCA 420
Case
[2004] QCA 420
Decision Date

CaseChat Overview and Summary

The appellant was convicted of two counts of rape of a woman who was intellectually impaired. The case came before the court on appeal, where the appellant argued that the trial judge had misdirected the jury regarding the complainant's cognitive capacity to consent to intercourse. Additionally, the appellant contended that the trial judge had failed to adequately address the issue of his own cognitive limitations, including language difficulties and mild mental retardation, which could have affected his understanding of the situation.

The legal issues before the court included whether the trial judge had erred in directing the jury on the complainant's capacity to consent and if the judge had adequately considered the appellant's cognitive limitations in relation to the defence of honest and reasonable mistake under section 24 of the Criminal Code. Furthermore, the court had to determine if the appellant's mild mental retardation and language difficulties could have affected the assessment of his mistake, and whether the insanity defence under section 27 of the Criminal Code was available to the appellant.

The court found that the trial judge had misdirected the jury on the issue of the complainant's cognitive capacity to consent. The court also determined that the trial judge had not adequately considered the appellant's cognitive limitations when assessing the reasonableness of his mistake. The court concluded that the appellant's intellectual impairment and language difficulties were relevant to the evaluation of the reasonableness of his mistake under section 24 of the Criminal Code. Additionally, the court found that the excuse of insanity under section 27 of the Criminal Code was not available to the appellant. As a result, the appeal was allowed, the convictions were quashed, and a re-trial was ordered.

The court's orders were that the appeal was allowed, the convictions were quashed, and a re-trial was ordered. This decision highlights the importance of ensuring that trial judges properly address all relevant factors when considering a defendant's cognitive limitations and the potential impact on their understanding of the situation, as well as the need to carefully assess the applicability of defences such as honest and reasonable mistake and insanity.

Orders

Orders of the court

1. Appeal allowed

2. Convictions quashed

3. Re-trial ordered

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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