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R v Lacey

R v Lacey

Case [2009] QCA 275 11 September 2009

Appeal

Misdirection or Non-Direction

Verdict Unreasonable or Insupportable

Sentence Manifestly Excessive or Inadequate

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Lacey [2009] QCA 275

PARTIES:

R
v
LACEY, Jade Michael
(applicant/appellant)

FILE NO/S:

CA No 123 of 2009
SC No 920 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

15 July 2009; 16 July 2009

JUDGES:

Chief Justice, McMurdo P, Keane, Muir and Chesterman JJA
Joint reasons for judgment of Chief Justice and Keane, Muir and Chesterman JJA; separate reasons of McMurdo P, dissenting in part

ORDERS:

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – where appellant was convicted after trial of wounding with intent to maim – where primary judge did not explicitly summarise counsel for the appellant’s argument in summing up – whether primary judge failed to put the appellant’s case to the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where appellant raised defence of self- defence – whether jury was bound to have a reasonable doubt about whether the appellant acted in self-defence – whether jury verdict was unsafe and unsatisfactory

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where upon being convicted, after trial, of unlawful wounding with intent, the appellant was sentenced to five years imprisonment – where primary judge reduced a notional seven years imprisonment by two years to take into account non-declarable pre-sentence custody but did not fix an earlier parole eligibility date – where, as a result, appellant will serve four and a half years in actual custody and will be eligible to apply for parole after serving 65 per cent of an effective seven year sentence – whether sentence manifestly excessive

Criminal Code 1899 (Qld), s 23, s 271, s 272, s 317, s 688E
Penalties and Sentences Act 1992 (Qld), s 161B, Part 9A

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, cited
Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited
Lacey v DPP (Qld); Lacey v DPP [2007] QCA 413, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Ainsworth [2000] QCA 163, cited
R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, cited
R v Aziz [1982] 2 NSWLR 322, cited
R v Clarke (2005) 159 A Crim R 281; [2005] QCA 483, cited
R vCourtney-Smith (No 2)

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 Lacey

Details

AGLC: R v Lacey [2009] QCA 275
Case: [2009] QCA 275
Decision Date: 11 September 2009

CaseChat Overview and Summary

The appeal in R v Lacey involved the appellant's conviction for unlawful wounding with intent to maim. The primary judge did not explicitly summarise the appellant's self-defence argument in the summing up, raising concerns about whether the appellant's case was adequately presented to the jury. The appellant challenged the verdict, arguing that the jury should have had reasonable doubt about the self-defence claim, making the verdict unsafe and unsatisfactory. The appellant also contested the sentence, claiming it was manifestly excessive.

The legal issues before the court were whether the primary judge's failure to summarise the self-defence argument constituted a misdirection or non-direction, and if so, whether it was significant enough to warrant a new trial. Additionally, the court had to determine whether the jury's verdict was unreasonable or insupportable given the evidence, and whether the sentence was manifestly excessive. The court considered whether the failure to summarise the self-defence argument led to a miscarriage of justice and whether the sentence imposed was disproportionate.

The court found that the primary judge's summing up did not result in a significant misdirection or non-direction, as the jury was adequately directed on the elements of the offence and the defence of self-defence. The court held that the jury was entitled to reject the self-defence argument based on the evidence presented. The verdict was deemed safe and satisfactory, and the sentence, while harsh, did not reach the threshold of being manifestly excessive. The court concluded that the appellant's conviction should stand, and the appeal against both the conviction and the sentence was dismissed.

The orders of the court were that the appeal against the conviction be dismissed and the application for leave to appeal against the sentence be dismissed. The appellant's conviction for unlawful wounding with intent to maim was upheld, and the sentence of five years imprisonment, with a non-parole period of four and a half years, was affirmed.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence 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.

Citations

AGLC Citation

R v Lacey [2009] QCA 275

Most Recent Citation

R v Lacey & Lacey [2011] QCA 386

Cases citing this decision · 5 of 5 shown

R v Pain
[2022] QCA 233 Para 5

…A sentence for comparable offending to that committed by Mr Pain was that imposed on Mr Jade Lacey that was upheld in R v Lacey [2009] QCA 275 for unlawful wounding with intent to maim. A sentence of five years’ imprisonment was imposed after trial. It was notionally a sentence of seven years’ imprisonment as the…
R v Hyde
[2017] QCA 148 Para 11

…trials that the defence case be put fairly to the jury.[50] [49]See R309/4. [50]See RPS v The Queen (2000) 199 CLR 620, 637 at [41]; R v Lacey [2009] QCA 275 at [7]; R v KAP [2016] QCA 349 at [46]; R v Baden-Clay (2016) 258 CLR 308, 328 at [62] fn 55 and cf R v Tamatea [2013] QCA 399 at [41]-[48].…
R v Lacey & Lacey
[2011] QCA 386 Para 1

…hich is now said to have been required tends to confirm my conclusion that the summing up was not inadequate in this respect.[3] [3]See R v Lacey [2009] QCA 275 at [8], per de Jersey CJ, Keane, Muir and Chesterman JJA, referring with approval to R v Aziz [1982] 2 NSWLR 322 at 330 - 331.…
R v Lacey and Lacey
[2010] QDC 344 Para 5

…l, the task of analysing comparable cases can be valuable in identifying a sentencing range but the task is to be approached with caution ( R v Lacey [2009] QCA 275 at paragraph [43]).…
High Court Bulletin
[2010] HCAB 6

…Appealed from Qld SC (CA): [2009] QCA 275. Lacey v The Queen B38/2010. Special leave dismissed.…

View all 5 citing cases →

Cases cited in this decision · 18 of 18 shown

R v Dwyer
[2008] QCA 117

…159 A Crim R 281; [2005] QCA 483, cited R v Courtney-Smith (No 2) (1990) 48 A Crim R 49, cited R v Dwyer [2008] QCA 117, cited R v Hytch (2000) 114 A Crim R 573; [2000] QCA 315, cited R v Kitson [2008] QCA 86, considered R v Lester [2004] QCA 34, cited R v Mogg (2000) 112 A Crim R 417; [2000] QCA 244, cited RPS…
R v Kitson
[2008] QCA 86 Para 1

…ond the midpoint of the sentence, then "good reason" must be demonstrated for the decision. The primary judge did not articulate any such reason. [10][2008] QCA 86.…
Lacey v. DPP (Qld); Lacey v DPP
[2007] QCA 413 Para 1

…or leave to appeal should be granted and the appeal allowed so that this error can be corrected. [19][2000] QCA 163. [20][2004] QCA 34 at [40]. [21][2007] QCA 413 at [13]. [22][2007] QCA 273 at [22], [29]. [23][2008] QCA 86.…
R v Assurson
[2007] QCA 273 Para 1

…granted and the appeal allowed so that this error can be corrected. [19][2000] QCA 163. [20][2004] QCA 34 at [40]. [21][2007] QCA 413 at [13]. [22][2007] QCA 273 at [22], [29]. [23][2008] QCA 86.…
R v Clarke
[2005] QCA 483 Para 1

…a half hour closing address to the jury commenced at 10:15am on Tuesday, 28 April. [1] R v Hytch [2000] QCA 315 per McMurdo P at [10]. [2] R v Clarke [2005] QCA 483 per McMurdo P at [66], Helman and Chesterman JJ agreeing. [3] Fingleton v The Queen (2005) 227 CLR 166 per McHugh J at [83]-[84].…
Fingleton v The Queen
[2005] HCA 34

…ed Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, cited Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited Lacey v DPP (Qld); Lacey v DPP [2007] QCA 413, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Ainsworth [2000]…
R v Lester
[2004] QCA 34 Para 1

…lows that the application for leave to appeal should be granted and the appeal allowed so that this error can be corrected. [19][2000] QCA 163. [20][2004] QCA 34 at [40]. [21][2007] QCA 413 at [13]. [22][2007] QCA 273 at [22], [29]. [23][2008] QCA 86.…
Dhanhoa v The Queen
[2003] HCA 40

…1B, Part 9A AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, cited Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited Lacey v DPP (Qld); Lacey v DPP [2007] QCA 413, cited M v The Q…
MFA v The Queen
[2002] HCA 53

…QCA 413, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Ainsworth [2000] QCA 163, cited R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, cited R v Aziz [1982] 2 NSWLR 322, cited R v Clarke (2005) 159 A Crim R 281; [2005] QCA 483, cite…
R v Hytch
[2000] QCA 315 Para 1

…ined on Monday, 27 April 2009. His counsel's two and a half hour closing address to the jury commenced at 10:15am on Tuesday, 28 April. [1] R v Hytch [2000] QCA 315 per McMurdo P at [10]. [2] R v Clarke [2005] QCA 483 per McMurdo P at [66], Helman and Chesterman JJ agreeing. [3] Fingleton v The Queen (2005) 227 C…
R v Mogg
[2000] QCA 244 Para 1

…udges to discretely outline the main competing argument of counsel. [16](2003) 217 CLR 1 at 13. [17] Domican v The Queen (1982) 173 CLR 555; R v Mogg [2000] QCA 244 at [50]-[54], [71]-[73], [83].…
R v Ainsworth
[2000] QCA 163 Para 1

…terial error. It follows that the application for leave to appeal should be granted and the appeal allowed so that this error can be corrected. [19][2000] QCA 163. [20][2004] QCA 34 at [40]. [21][2007] QCA 413 at [13]. [22][2007] QCA 273 at [22], [29]. [23][2008] QCA 86.…
RPS v The Queen
[2000] HCA 3

…QCA 34, cited R v Mogg (2000) 112 A Crim R 417; [2000] QCA 244, cited RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, cited COUNSEL: J R Hunter SC for the applicant/appellant W Sofronoff QC SG, with M R Byrne, for the respondent SOLICITORS: Boe Lawyers for the applicant/appellant Director of Public Prosecutio…
AB v The Queen
[1999] HCA 46

…s 317, s 688E Penalties and Sentences Act 1992 (Qld), s 161B, Part 9A AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, cited Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited Lac…
M v the Queen
[1994] HCA 63

…005] HCA 34, cited Lacey v DPP (Qld); Lacey v DPP [2007] QCA 413, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Ainsworth [2000] QCA 163, cited R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, cited R v Aziz [1982] 2 NSWLR 322, cited…
Courtney-Smith v The Queen
[1991] HCATrans 69 Para 1

…The primary judge did not summarise the contentions made on the appellant's behalf by his counsel. The failure "was made particularly acute" by the circumstance that by the end of the summing up, the evidence of the appellant and the address of his counsel had been overtaken by two other addresses a…
Domican v R
[1992] HCA 13

…cited Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, cited Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited Lacey v DPP (Qld); Lacey v DPP [2007] QCA 413, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited MFA v The Queen…
[1979] AC 374
[1979] AC 374 Para 1

…llant to establish that it is reasonably possible that the failure to direct the jury as alleged "may have affected the verdict". [7] R v Aziz [1982] 2 NSWLR 322 at 330 – 331.…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
161B 2 mentions (from Para 1)

CITATION:	R v Lacey [2009] QCA 275
PARTIES:	R v LACEY, Jade Michael (applicant/appellant)
FILE NO/S:	CA No 123 of 2009 SC No 920 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	11 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	15 July 2009; 16 July 2009
JUDGES:	Chief Justice, McMurdo P, Keane, Muir and Chesterman JJA Joint reasons for judgment of Chief Justice and Keane, Muir and Chesterman JJA; separate reasons of McMurdo P, dissenting in part
ORDERS:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – where appellant was convicted after trial of wounding with intent to maim – where primary judge did not explicitly summarise counsel for the appellant’s argument in summing up – whether primary judge failed to put the appellant’s case to the jury CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where appellant raised defence of self- defence – whether jury was bound to have a reasonable doubt about whether the appellant acted in self-defence – whether jury verdict was unsafe and unsatisfactory CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where upon being convicted, after trial, of unlawful wounding with intent, the appellant was sentenced to five years imprisonment – where primary judge reduced a notional seven years imprisonment by two years to take into account non-declarable pre-sentence custody but did not fix an earlier parole eligibility date – where, as a result, appellant will serve four and a half years in actual custody and will be eligible to apply for parole after serving 65 per cent of an effective seven year sentence – whether sentence manifestly excessive Criminal Code 1899 (Qld), s 23, s 271, s 272, s 317, s 688E Penalties and Sentences Act 1992 (Qld), s 161B, Part 9A AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, cited Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited Lacey v DPP (Qld); Lacey v DPP [2007] QCA 413, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Ainsworth [2000] QCA 163, cited R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, cited R v Aziz [1982] 2 NSWLR 322, cited R v Clarke (2005) 159 A Crim R 281; [2005] QCA 483, cited R vCourtney-Smith (No 2)