O'Sullivan v R; Flanders v R; Tohu v R & NRH v R [2012] NSWCCA 45

O'Sullivan v R; Flanders v R; Tohu v R & NRH v R [2012] NSWCCA 45

The appeals were allowed because, for O'Sullivan, Flanders and Tohu, credible fresh evidence concerning the complainant's alleged statement about a threesome created a significant possibility that a jury acting reasonably would have acquitted, and the exclusion of the exchange between O'Sullivan and the complainant and errors in directions on admissions and consent contributed to miscarriage of justice. NRH's convictions were unreasonable because, after rejection of the allegation that he was a principal on Count 2, the remaining evidence showed no more than presence in the room and did not prove beyond reasonable doubt that he knew a crime was being committed or intentionally assisted or...

Jurisdiction
Australia
Judgment Date
18 September 2012
Procedural Posture
Criminal Appeals Against Conviction / Appeal to the Court of Criminal Appeal From Convictions After Jury Trial in the District Court
Outcome
Appeals allowed; convictions quashed; NRH acquitted; new trial ordered for O'Sullivan, Flanders and Tohu.
Legal Topics
['aggravated Sexual Intercourse Without Consent' 'indecent Assault' 'appeals Against Conviction' 'fresh Evidence' 'admissibility of Sexual Experience Evidence' 'jury Directions on Consent' 'admissions by Co Accused' 'joint Criminal Enterprise' 'unreasonable Verdict']
['criminal Law' 'criminal Procedure' 'evidence'] ['aggravated Sexual Intercourse Without Consent' 'indecent Assault' 'appeals Against Conviction' 'fresh Evidence' 'admissibility of Sexual Experience Evidence' 'jury Directions on Consent' 'admissions by Co Accused' 'joint Criminal Enterprise' 'unreasonable Verdict']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeals Against Conviction / Appeal to the Court of Criminal Appeal From Convictions After Jury Trial in the District Court

Legal Issues

  1. 1 ["Whether fresh evidence from Michaela Pratten was credible and likely to have caused the jury to entertain a reasonable doubt about the guilt of O'Sullivan, Flanders and Tohu." "Whether evidence of the exchange between O'Sullivan and the complainant was wrongly excluded under s 293(2) of the Criminal Procedure Act 1986 as evidence relating to sexual reputation." "Whether the trial judge should have directed the jury that alleged admissions by O'Sullivan were admissible only against him." 'Whether the trial judge erred by directing the jury on Count 5 by reference to s 61HA of the Crimes Act 1900 when the common law test applied.' 'Whether the trial judge was required to identify factual matters relevant to reasonable grounds for belief in consent.' 'Whether the guilty verdicts were unreasonable or could not be supported having regard to the evidence, particularly for NRH.']

Ratio Decidendi

The appeals were allowed because, for O'Sullivan, Flanders and Tohu, credible fresh evidence concerning the complainant's alleged statement about a threesome created a significant possibility that a jury acting reasonably would have acquitted, and the exclusion of the exchange between O'Sullivan and the complainant and errors in directions on admissions and consent contributed to miscarriage of justice. NRH's convictions were unreasonable because, after rejection of the allegation that he was a principal on Count 2, the remaining evidence showed no more than presence in the room and did not prove beyond reasonable doubt that he knew a crime was being committed or intentionally assisted or...

Court Disposition

Appeals allowed; convictions quashed; NRH acquitted; new trial ordered for O'Sullivan, Flanders and Tohu.

Orders

  • ['Appeals of each Appellant allowed.' 'Quash the convictions of the Appellants.' 'In respect of the Appellant NRH enter a verdict of acquittal.' "In respect of the Appellants O'Sullivan, Flanders and Tohu order a new trial in respect of Counts 1, 3, 4 and 5."]