R v Berg - [2019] QCA 122

SUPREME COURT OF QUEENSLAND

CITATION:

R v Berg [2019] QCA 122

PARTIES:

R
v
BERG, Vincent Victor
(appellant)

FILE NO/S:

CA No 112 of 2018
DC No 137 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport – Date of Conviction: 23 March 2018 (McGinness DCJ)

DELIVERED ON:

21 June 2019

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2019

JUDGES:

Sofronoff P and Morrison and McMurdo JJA

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was found guilty at trial of several dishonesty offences, including dishonestly gaining a position as a psychiatrist and forgery – where those offences flowed from an allegation that the appellant dishonestly represented that he was duly qualified and experienced psychiatrist – where a nolle prosequi was entered on several other counts that alleged that the appellant had done grievous bodily harm or bodily harm to five patients – where, at the time of the nolle prosequi, the jury had heard evidence from three of the patients and the evidence of the other two patients had been opened – where the jury was directed to disregard the evidence of all of the patients – where two doctors had also given expert evidence about the appellant’s treatment of one of more of the patients – where the appellant submits that the evidence of the patients and the doctors was so prejudicial, despite the direction to disregard the patients’ evidence, that there was a risk that it was impermissibly used by the jury in its consideration of the dishonesty offences – whether the patients’ evidence remained relevant and admissible as it was part of a factual basis for an expert opinion expressed by one of the doctors – whether the doctors’ evidence remained relevant and admissible as it could have founded an inference that the appellant was not a qualified psychiatrist – whether the evidence relevant to the discontinued charges was relevant and thereby also admissible to the dishonesty offences – whether there was a miscarriage of justice

Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29, distinguished

COUNSEL:

J A Fraser for the appellant
D Nardone for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of McMurdo JA and the order his Honour proposes.
MORRISON JA: I have read the reasons of McMurdo JA and agree with those reasons and the order his Honour proposes.
McMURDO JA: In 1992, at the age of 40, the appellant arrived in Australia from Russia where he had been born and educated. He sought residence as a refugee, claiming that he had been persecuted as an active member of a minority Christian group. In that application, he wrote that he had a university degree in applied mathematics and had worked as a…

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 Berg

Details

AGLC: R v Berg [2019] QCA 122
Case: [2019] QCA 122
Decision Date: 21 June 2019

CaseChat Overview and Summary

In the case of R v Berg, the appellant, a self-proclaimed psychiatrist, faced criminal charges relating to dishonesty offences, including falsely obtaining employment and forgery. The case reached the court after the appellant was found guilty of these charges, which stemmed from allegations that he had dishonestly represented himself as a qualified and experienced psychiatrist. The court also considered the appellant's submissions regarding other charges related to grievous bodily harm or bodily harm to five patients, which were withdrawn by the prosecution. The appellant argued that the evidence from the patients and expert medical opinions about his treatment of one or more of the patients were prejudicial and may have improperly influenced the jury's decision on the dishonesty charges.

The primary legal issues before the court were whether the evidence from the patients and the expert medical opinions remained relevant and admissible after the jury was directed to disregard the evidence and whether the evidence related to the discontinued charges was relevant and admissible for the dishonesty offences. Additionally, the court had to determine if the appellant's conviction was tainted by a miscarriage of justice due to the prejudicial effect of the evidence. The court's task was to assess whether the appellant's rights to a fair trial were compromised by the potential improper use of the evidence in question.

After careful consideration, the court concluded that the evidence from the patients and the expert medical opinions did not remain relevant or admissible once the jury was directed to disregard it. The court held that the prejudicial effect of this evidence was mitigated by the clear direction from the trial judge. Furthermore, the court found that the evidence relevant to the discontinued charges was not relevant or admissible for the dishonesty offences, and thus did not contribute to a miscarriage of justice. Consequently, the court dismissed the appeal against the conviction.

The final orders of the court were to dismiss the appeal against the appellant's conviction. The court upheld the findings of guilt on the dishonesty charges, finding no grounds for a new trial or appeal based on the alleged miscarriage of justice.

Orders

Orders of the court

Appeal against conviction dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Berg [2019] QCA 122
PARTIES:	R v BERG, Vincent Victor (appellant)
FILE NO/S:	CA No 112 of 2018 DC No 137 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Southport – Date of Conviction: 23 March 2018 (McGinness DCJ)
DELIVERED ON:	21 June 2019
DELIVERED AT:	Brisbane
HEARING DATE:	8 March 2019
JUDGES:	Sofronoff P and Morrison and McMurdo JJA
ORDER:	Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was found guilty at trial of several dishonesty offences, including dishonestly gaining a position as a psychiatrist and forgery – where those offences flowed from an allegation that the appellant dishonestly represented that he was duly qualified and experienced psychiatrist – where a nolle prosequi was entered on several other counts that alleged that the appellant had done grievous bodily harm or bodily harm to five patients – where, at the time of the nolle prosequi, the jury had heard evidence from three of the patients and the evidence of the other two patients had been opened – where the jury was directed to disregard the evidence of all of the patients – where two doctors had also given expert evidence about the appellant’s treatment of one of more of the patients – where the appellant submits that the evidence of the patients and the doctors was so prejudicial, despite the direction to disregard the patients’ evidence, that there was a risk that it was impermissibly used by the jury in its consideration of the dishonesty offences – whether the patients’ evidence remained relevant and admissible as it was part of a factual basis for an expert opinion expressed by one of the doctors – whether the doctors’ evidence remained relevant and admissible as it could have founded an inference that the appellant was not a qualified psychiatrist – whether the evidence relevant to the discontinued charges was relevant and thereby also admissible to the dishonesty offences – whether there was a miscarriage of justice Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29, distinguished
COUNSEL:	J A Fraser for the appellant D Nardone for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent