R v Ojh - [2020] QDC 71

DISTRICT COURT OF QUEENSLAND

CITATION:

R v OJH [2020] QDC 71

PARTIES:

THE QUEEN

v

OJH

(Defendant)

FILE NO/S:

DC 1484 of 2019

DIVISION:

Criminal

PROCEEDING:

Trial (Judge-only)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

1 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

29 April 2020

JUDGE:

Rinaudo AM DCJ

ORDER:

Not guilty on count 1 of the indictment

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – GENERALLY –where the alleged offence was historical – where the evidence of the complainant and preliminary complaint witness differ in a material way – where the judge directed himself as to the Longman and Robinson issues

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – INDECENT ASSAULT AND RELATED OFFENCES – where the defendant was charged with indecent assault on females – issue of whether the act was done with consent – issue of whether the act was indecent

Criminal Code 1899 (Qld) s 350

R v Collins [2016] QCA 256

R v MBX [2013] QCA 214

COUNSEL:

T Corsbie for the Crown

C Wilson for the defendant

SOLICITORS:

Director of Public Prosecutions (Qld) for the Crown

Hannay Lawyers for the defendant

The defendant is charged with one count of indecent assault on females in the following terms:

That between the first day of January, 1988 and the thirty-first day of December, 1989 at Molendinar in the State of Queensland, [OJH] unlawfully and indecently assaulted [the complainant].

The defendant pleaded not guilty and elected to proceed to a judge-alone trial before me in the District Court.

In respect of the count, the prosecution must prove, beyond reasonable doubt that:[1]
[1]Criminal Code 1889 (Qld) s 350.

(1) The defendant assaulted the complainant;

(2) The complainant is female;

(3) The assault was unlawful; and

(4) The assault was indecent.

Four admissions were agreed, pursuant to section 644 of the Criminal Code 1899:[2]
[2]Exhibit 3.

(1) Real estate records list the defendant as having purchased 42 Theodore Place, Molendinar on 31 March 1988 (the premises at which the alleged offending is said to have occurred);

(2) Queensland Transport records list the defendant as residing at 42 Theodore Place, Molendinar from 6 May 1988 to 28 February 1995 (the premises at which the alleged offending is said to have occurred);

(3) The defendant was interviewed by police on 2 December 2017 and 4 March 2018. These conversations were recorded and the discs labelled ‘Interview 2 December 2017’ and ‘Interview 4 March 2018’ are copies of these conversations; and

(4) The complainant was born on 15 February 1972.

The Evidence

The exhibits tendered in the trial were:

(1) An email from the complainant to the defendant dated 31 October 2014;

(2) An email from the defendant to the complainant dated 31 October 2014;

(3) Admissions pursuant to s 644 of the Criminal Code;

(4) An audio recording of a police interview held on 12 December 2017 (the transcript of this interview was marked as Exhibit…

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 Ojh

Details

AGLC: R v Ojh [2020] QDC 71
Case: [2020] QDC 71
Decision Date: 1 May 2020

CaseChat Overview and Summary

In the matter of R v Ojh, the defendant was charged with indecent assault on a female, the alleged offence occurring in 1985. The case was heard by a judge sitting without a jury. The primary issue was whether the alleged act was done with the consent of the complainant and, if not, whether the act was indecent. The secondary issue was the resolution of differing evidence between the complainant and a preliminary complaint witness.

The court addressed the differing testimonies by applying the principles from Longman and Robinson cases to determine the credibility and reliability of the witnesses. The judge considered the inconsistencies between the complainant and the preliminary complaint witness, along with the historical nature of the alleged offence. The court examined the evidence under the Longman and Robinson principles, which focus on the reliability and consistency of witness testimonies. The judge directed himself on these issues, considering the credibility of each witness and the weight to be given to their respective accounts. After a thorough analysis, the judge concluded that the prosecution had not established the elements of the offence beyond reasonable doubt.

The court found the defendant not guilty on count 1 of the indictment, concluding that the evidence did not satisfy the necessary legal standards to establish the offence of indecent assault. The court did not find the evidence to be sufficient to prove that the alleged act was done without consent or that it was indecent. The defendant was acquitted based on the judge's determination that the prosecution had failed to meet the burden of proof.

Orders

Orders of the court

Not guilty on count 1 of the indictment

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 OJH [2020] QDC 71
PARTIES:	THE QUEEN v OJH (Defendant)
FILE NO/S:	DC 1484 of 2019
DIVISION:	Criminal
PROCEEDING:	Trial (Judge-only)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	1 May 2020
DELIVERED AT:	Brisbane
HEARING DATE:	29 April 2020
JUDGE:	Rinaudo AM DCJ
ORDER:	Not guilty on count 1 of the indictment
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – GENERALLY –where the alleged offence was historical – where the evidence of the complainant and preliminary complaint witness differ in a material way – where the judge directed himself as to the Longman and Robinson issues CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – INDECENT ASSAULT AND RELATED OFFENCES – where the defendant was charged with indecent assault on females – issue of whether the act was done with consent – issue of whether the act was indecent Criminal Code 1899 (Qld) s 350 R v Collins [2016] QCA 256 R v MBX [2013] QCA 214
COUNSEL:	T Corsbie for the Crown C Wilson for the defendant
SOLICITORS:	Director of Public Prosecutions (Qld) for the Crown Hannay Lawyers for the defendant