R v OL - [2004] QCA 439

SUPREME COURT OF QUEENSLAND

CITATION:

R v OL [2004] QCA 439

PARTIES:

R
v
OL
(appellant)

FILE NO/S:

CA No 117 of 2004
DC No 90 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

19 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

25 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 order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF SUMMING-UP AS A WHOLE – appellant convicted of maintaining a sexual relationship with a child – whether learned trial judge's direction about the use to be made of evidence of uncharged sexual acts was in error – whether jury may have wrongly used evidence of uncharged matters which were not offences of a sexual nature to convict appellant of maintaining charge – whether a miscarriage of justice may have resulted

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – appellant charged with various acts of a sexual nature against his stepdaughter including indecent treatment, rape and incest – where offences alleged to have occurred in various places over a period of five years – appellant acquitted of some counts and convicted of others – whether the guilty verdicts were inconsistent with the acquittals – whether the complainant's account of events was so improbable that the convictions are unsafe

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR MATTERS – CONTROL OF PROCEEDINGS – OTHER CASES – prosecution did not provide defence with medical evidence until after completion of defence addresses and shortly before learned trial judge's summing-up – medical records held by police – prosecutor unaware such records existed – whether learned trial judge should have allowed application to discharge jury – whether a substantial miscarriage of justice has resulted from failure to provide medical evidence to defence

Criminal Code 1899 (Qld), s 229B, s 590AB(2)(b)
Criminal Law Amendment Act 1945 (Qld), s 2A
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4

Bull v The Queen (2000) 201 CLR 443, cited
KBT v The Queen (1997) 191 CLR 417, cited
M v The Queen (1994) 181 CLR 487, cited
R v AH [2002] QCA 536; CA No 312 of 2002, 10 December 2002, cited
R v Tribe [2001] QCA 206; CA No 349 of 2000, 1 June 2001, cited

COUNSEL:

M J Byrne QC, with J A Fraser, for the appellant
R G Martin for the respondent

SOLICITORS:

R J Cutler for the appellant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The appellant was charged with one…

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 OL

Details

AGLC: R v OL [2004] QCA 439
Case: [2004] QCA 439
Decision Date: 19 November 2004

CaseChat Overview and Summary

In the case of R v OL, the appellant appealed against his conviction for maintaining a sexual relationship with a child, as well as convictions for other sexual offences against his stepdaughter. The trial judge acquitted the appellant on some charges but convicted him on others. The appellant challenged the conviction on the grounds of misdirection by the trial judge concerning the use of evidence of uncharged sexual acts, inconsistency of the verdicts, and the late disclosure of medical evidence by the prosecution. The High Court of Australia was required to determine whether the trial judge's direction to the jury was in error, whether the jury may have wrongly used the uncharged sexual matters to convict the appellant, and if the late disclosure of medical evidence caused a miscarriage of justice.

The court examined the summing-up as a whole and found no error in the trial judge's direction to the jury. The court held that the jury would have been unlikely to have used the uncharged sexual matters to convict the appellant of maintaining a sexual relationship with a child, as the evidence related to different matters and involved different complainants. Furthermore, the court found that the guilty verdicts were not inconsistent with the acquittals, and the complainant's account of events, although improbable, was not so unreliable as to render the convictions unsafe. The court also held that the late disclosure of medical evidence did not result in a substantial miscarriage of justice, as the evidence was not critical to the appellant's defence and could not have made a difference to the outcome of the trial.

The court dismissed the appeal against the conviction. The court found that the trial judge's direction to the jury was not in error, and the jury was unlikely to have used the uncharged sexual matters to convict the appellant of maintaining a sexual relationship with a child. The court also held that the guilty verdicts were not inconsistent with the acquittals, and the complainant's account of events, although improbable, was not so unreliable as to render the convictions unsafe. Finally, the court held that the late disclosure of medical evidence did not result in a substantial miscarriage of justice, as the evidence was not critical to the appellant's defence and could not have made a difference to the outcome of the trial.

Orders

Orders of the court

Appeal against conviction dismissed

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 OL [2004] QCA 439
PARTIES:	R v OL (appellant)
FILE NO/S:	CA No 117 of 2004 DC No 90 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	19 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	25 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 order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF SUMMING-UP AS A WHOLE – appellant convicted of maintaining a sexual relationship with a child – whether learned trial judge's direction about the use to be made of evidence of uncharged sexual acts was in error – whether jury may have wrongly used evidence of uncharged matters which were not offences of a sexual nature to convict appellant of maintaining charge – whether a miscarriage of justice may have resulted CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – appellant charged with various acts of a sexual nature against his stepdaughter including indecent treatment, rape and incest – where offences alleged to have occurred in various places over a period of five years – appellant acquitted of some counts and convicted of others – whether the guilty verdicts were inconsistent with the acquittals – whether the complainant's account of events was so improbable that the convictions are unsafe CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR MATTERS – CONTROL OF PROCEEDINGS – OTHER CASES – prosecution did not provide defence with medical evidence until after completion of defence addresses and shortly before learned trial judge's summing-up – medical records held by police – prosecutor unaware such records existed – whether learned trial judge should have allowed application to discharge jury – whether a substantial miscarriage of justice has resulted from failure to provide medical evidence to defence Criminal Code 1899 (Qld), s 229B, s 590AB(2)(b) Criminal Law Amendment Act 1945 (Qld), s 2A Criminal Law (Sexual Offences) Act 1978 (Qld), s 4 Bull v The Queen (2000) 201 CLR 443, cited KBT v The Queen (1997) 191 CLR 417, cited M v The Queen (1994) 181 CLR 487, cited R v AH [2002] QCA 536; CA No 312 of 2002, 10 December 2002, cited R v Tribe [2001] QCA 206; CA No 349 of 2000, 1 June 2001, cited
COUNSEL:	M J Byrne QC, with J A Fraser, for the appellant R G Martin for the respondent
SOLICITORS:	R J Cutler for the appellant Director of Public Prosecutions (Queensland) for the respondent