R v O'Loughlin - [2011] QCA 123

SUPREME COURT OF QUEENSLAND

CITATION:

R v O’Loughlin [2011] QCA 123

PARTIES:

R
v
O’LOUGHLIN, Anne Marie
(appellant)

FILE NO/S:

CA No 305 of 2010
DC No 214 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

9 May 2011

JUDGES:

Margaret McMurdo P, Muir and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The appeal be allowed.1.

The convictions on counts 1, 3 and 4 be set aside.2.

There be a retrial.3.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of one count of deprivation of liberty and two counts of rape – where the appellant was acquitted of one count sexual assault – where the appellant submitted that the verdict was not open to the jury on the evidence – where there was evidence that both the complainant and the appellant were intoxicated – where the kissing between the complainant and the appellant was consensual – where the complainant was reluctant to make the initial complaint to police – where the appellant argued that there was no evidence of distress on the part of the complainant in the immediate aftermath of the incident – whether the verdict was unsafe or unsatisfactory having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL – MISDIRCTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the primary judge directed the jury on mistake of fact in respect of consent – where the primary judge’s initial direction made no reference to intoxication – where the jury requested a re-direction – where the appellant submitted that the primary judge erred in re-directing that the jury could not have regard to the appellant’s level of intoxication when considering whether she honestly held a mistaken belief – whether the primary judge’s directions gave rise to a miscarriage of justice

Criminal Code 1899 (Qld), s 24, s 668E(1A)

Daniels v The Queen (1989) 1 WAR 435, cited
R v Gray (1998) 98 A Crim R 589; [1998] QCA 41, cited
R v Hopper[1993] QCA 561, cited
R v Julian (1998) 100 A Crim R 430; [1998] QCA 119, cited
R v MacKenzie (2000) 113 A Crim R 534; [2000] QCA 324, cited
R v Mrzljak [2005] 1 Qd R 308; [2004] QCA 420, cited

COUNSEL:

J R Hunter SC for the appellant
M J Copley SC for the respondent

SOLICITORS:

Bell Miller Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with Muir JA’s reasons for allowing this appeal against conviction and with the proposed orders.

MUIR JA: Introduction

The appellant was tried on an indictment charging her with unlawfully depriving the complainant of…

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 O'Loughlin

Details

AGLC: R v O'Loughlin [2011] QCA 123
Case: [2011] QCA 123
Decision Date: 10 June 2011

CaseChat Overview and Summary

The case of R v O'Loughlin involved the appellant's conviction of one count of deprivation of liberty and two counts of rape, with an acquittal on one count of sexual assault. The appellant appealed against the verdict, arguing it was unreasonable and insupportable given the evidence presented. The appeal hinged on the intoxication of both the complainant and the appellant, the consensual nature of their initial interactions, and the complainant's delayed reporting of the incident to police. The appellant contended that there was no evidence of distress from the complainant immediately after the incident, and the jury's verdict was unsafe and unsatisfactory.

The legal issues before the court included whether the verdict was unreasonable and insupportable based on the evidence, particularly considering the intoxication of the parties and the consensual nature of their interactions. Another issue was whether the primary judge's directions to the jury on mistake of fact in respect of consent were correct, particularly in light of the appellant's level of intoxication. The appellant argued that the primary judge erred in not allowing the jury to consider the appellant's intoxication when determining whether she honestly held a mistaken belief regarding consent.

The court found that the primary judge's directions to the jury were flawed. The initial direction did not address the issue of intoxication, and the re-direction given in response to the jury's request did not adequately consider the effect of the appellant's intoxication on her belief about consent. The court concluded that these directions could have led to a miscarriage of justice. Additionally, the court found that the evidence did not support the verdict of guilt on the counts of deprivation of liberty and rape, given the circumstances of intoxication and the consensual nature of the initial interactions. As a result, the appeal was allowed, the convictions on counts 1, 3, and 4 were set aside, and a retrial was ordered.

Orders

Orders of the court

The appeal be allowed.1.

The convictions on counts 1, 3 and 4 be set aside.2.

There be a retrial.3.

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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CITATION:	R v O’Loughlin [2011] QCA 123
PARTIES:	R v O’LOUGHLIN, Anne Marie (appellant)
FILE NO/S:	CA No 305 of 2010 DC No 214 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	10 June 2011
DELIVERED AT:	Brisbane
HEARING DATE:	9 May 2011
JUDGES:	Margaret McMurdo P, Muir and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The appeal be allowed.1. The convictions on counts 1, 3 and 4 be set aside.2. There be a retrial.3.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of one count of deprivation of liberty and two counts of rape – where the appellant was acquitted of one count sexual assault – where the appellant submitted that the verdict was not open to the jury on the evidence – where there was evidence that both the complainant and the appellant were intoxicated – where the kissing between the complainant and the appellant was consensual – where the complainant was reluctant to make the initial complaint to police – where the appellant argued that there was no evidence of distress on the part of the complainant in the immediate aftermath of the incident – whether the verdict was unsafe or unsatisfactory having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL – MISDIRCTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the primary judge directed the jury on mistake of fact in respect of consent – where the primary judge’s initial direction made no reference to intoxication – where the jury requested a re-direction – where the appellant submitted that the primary judge erred in re-directing that the jury could not have regard to the appellant’s level of intoxication when considering whether she honestly held a mistaken belief – whether the primary judge’s directions gave rise to a miscarriage of justice Criminal Code 1899 (Qld), s 24, s 668E(1A) Daniels v The Queen (1989) 1 WAR 435, cited R v Gray (1998) 98 A Crim R 589; [1998] QCA 41, cited R v Hopper[1993] QCA 561, cited R v Julian (1998) 100 A Crim R 430; [1998] QCA 119, cited R v MacKenzie (2000) 113 A Crim R 534; [2000] QCA 324, cited R v Mrzljak [2005] 1 Qd R 308; [2004] QCA 420, cited
COUNSEL:	J R Hunter SC for the appellant M J Copley SC for the respondent
SOLICITORS:	Bell Miller Solicitors for the appellant Director of Public Prosecutions (Queensland) for the respondent