R v Gibson - [2022] QCA 151

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gibson [2022] QCA 151

PARTIES:

R
v
GIBSON, Ashley Lennon
(applicant)

FILE NO/S:

CA No 303 of 2019
DC No 335 of 2013
DC No 137 of 2015
DC No 65 of 2016
DC No 250 of 2016
DC No 350 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Criminal

ORIGINATING COURT:

District Court at Cairns – Dates of Convictions: 30 August 2013 (Shanahan DCJ); 6 May 2015 (Martin SC DCJ); 4 August 2016 (Morzone QC DCJ)

DELIVERED ON:

Date of Order: 31 May 2021
Date of Publication of Reasons: 16 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2021

JUDGES:

Fraser and Bond JJA and Callaghan J

ORDER:

Date of Order: 31 May 2021

Court upholds objection by respondent to admissibility of expressions of opinion concerning the capacity of the applicant when he pleaded guilty to the offences in reports of Dr Scott dated 1 October 2019, the email from Dr Scott of 13 November 2019 and the report of Dr Scott of 1 April 2021.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – GENERAL PRINCIPLES – where the applicant filed an application for an extension of time within which to appeal and a notice of appeal against conviction in respect of convictions entered upon his pleas of guilty in the District Court at Cairns on 30 August 2013, 6 May 2015, and 4 August 2016 – where the applicant’s notice of appeal contended that the convictions should be set aside because expert opinion evidence the applicant sought leave to adduce on appeal demonstrated he may not have had the capacity to instruct his lawyers or plead to the original proceedings, there was therefore a real and substantial question to be considered about the applicant’s fitness to plead at the time, and as a result a miscarriage of justice occurred – where the proposed appeal would turn upon new expert opinion evidence which the applicant seeks leave to file – where the applicant relied upon two reports by Dr Russ Scott, a forensic psychiatrist – whether the absence of reasoning made with reference to an identified factual basis for Dr Scott’s opinions required the conclusion that his reports were inadmissible

R v Erskine [2010] 1 WLR 183; [2009] EWCA Crim 1425, cited
R v Presser [1958] VR 45; [1958] VicRp 9, cited

COUNSEL:

A E Loode for the applicant
M T Whitbread for the respondent

SOLICITORS:

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

THE COURT: On 15 November 2019 the applicant filed an application for an extension of time within which to appeal and a notice of appeal against conviction in respect of convictions entered upon his pleas of guilty in the District Court at Cairns on 30 August 2013, 6 May 2015, and 4 August 2016. The applicant’s notice of appeal contended that the convictions should be set aside because expert…

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 Gibson

Details

AGLC: R v Gibson [2022] QCA 151
Case: [2022] QCA 151
Decision Date: 31 May 2021

CaseChat Overview and Summary

The court heard an application from an appellant against his convictions for various offences. The appellant sought an extension of time within which to appeal and a notice of appeal against conviction in respect of convictions entered upon his pleas of guilty in the District Court at Cairns on 30 August 2013, 6 May 2015, and 4 August 2016. The appellant’s notice of appeal contended that the convictions should be set aside because expert opinion evidence the appellant sought leave to adduce on appeal demonstrated he may not have had the capacity to instruct his lawyers or plead to the original proceedings. Therefore, a real and substantial question was to be considered about the appellant’s fitness to plead at the time, and as a result, a miscarriage of justice occurred. The proposed appeal would turn upon new expert opinion evidence, which the appellant sought leave to file.

The court was required to decide whether the absence of reasoning made with reference to an identified factual basis for Dr Scott’s opinions required the conclusion that his reports were inadmissible. The court noted that the absence of reasoning did not necessarily mean that the expert opinion evidence was inadmissible. However, the court found that the absence of reasoning made with reference to an identified factual basis for Dr Scott’s opinions required the conclusion that his reports were inadmissible.

The court held that the absence of reasoning made with reference to an identified factual basis for Dr Scott’s opinions required the conclusion that his reports were inadmissible. The court noted that expert opinion evidence could only be admissible if it was based on facts or assumptions that were identified and accepted as a factual basis for the expert’s opinion. The court found that Dr Scott’s reports did not identify any factual basis for his opinions. The court held that the absence of reasoning made with reference to an identified factual basis for Dr Scott’s opinions required the conclusion that his reports were inadmissible.

The court upheld the objection by the respondent to the admissibility of expressions of opinion concerning the capacity of the appellant when he pleaded guilty to the offences in the reports of Dr Scott dated 1 October 2019, the email from Dr Scott of 13 November 2019, and the report of Dr Scott of 1 April 2021.

Orders

Orders of the court

Date of Order: 31 May 2021

Court upholds objection by respondent to admissibility of expressions of opinion concerning the capacity of the applicant when he pleaded guilty to the offences in reports of Dr Scott dated 1 October 2019, the email from Dr Scott of 13 November 2019 and the report of Dr Scott of 1 April 2021.

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 Gibson [2022] QCA 151
PARTIES:	R v GIBSON, Ashley Lennon (applicant)
FILE NO/S:	CA No 303 of 2019 DC No 335 of 2013 DC No 137 of 2015 DC No 65 of 2016 DC No 250 of 2016 DC No 350 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Criminal
ORIGINATING COURT:	District Court at Cairns – Dates of Convictions: 30 August 2013 (Shanahan DCJ); 6 May 2015 (Martin SC DCJ); 4 August 2016 (Morzone QC DCJ)
DELIVERED ON:	Date of Order: 31 May 2021 Date of Publication of Reasons: 16 August 2022
DELIVERED AT:	Brisbane
HEARING DATE:	31 May 2021
JUDGES:	Fraser and Bond JJA and Callaghan J
ORDER:	Date of Order: 31 May 2021 Court upholds objection by respondent to admissibility of expressions of opinion concerning the capacity of the applicant when he pleaded guilty to the offences in reports of Dr Scott dated 1 October 2019, the email from Dr Scott of 13 November 2019 and the report of Dr Scott of 1 April 2021.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – GENERAL PRINCIPLES – where the applicant filed an application for an extension of time within which to appeal and a notice of appeal against conviction in respect of convictions entered upon his pleas of guilty in the District Court at Cairns on 30 August 2013, 6 May 2015, and 4 August 2016 – where the applicant’s notice of appeal contended that the convictions should be set aside because expert opinion evidence the applicant sought leave to adduce on appeal demonstrated he may not have had the capacity to instruct his lawyers or plead to the original proceedings, there was therefore a real and substantial question to be considered about the applicant’s fitness to plead at the time, and as a result a miscarriage of justice occurred – where the proposed appeal would turn upon new expert opinion evidence which the applicant seeks leave to file – where the applicant relied upon two reports by Dr Russ Scott, a forensic psychiatrist – whether the absence of reasoning made with reference to an identified factual basis for Dr Scott’s opinions required the conclusion that his reports were inadmissible R v Erskine [2010] 1 WLR 183; [2009] EWCA Crim 1425, cited R v Presser [1958] VR 45; [1958] VicRp 9, cited
COUNSEL:	A E Loode for the applicant M T Whitbread for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent