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R v Laing

R v Laing

Case [2008] QCA 317 10 October 2008

Appeal

Admissibility of Evidence

Misdirection and Non-Direction

Sentencing

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Laing [2008] QCA 317

PARTIES:

R
v
LAING, Richard Norman
(appellant)

FILE NO/S:

CA No 21 of 2008
CA No 361 of 2007
DC No 3214 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

3 October 2008

JUDGES:

Keane and Fraser JJA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed1.

Application for leave to appeal against sentence refused2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where evidence was led by the Crown at trial of tools found in the boot of the appellant's car of the type said to have been used in the assault against the complainant – where the complainant's hospital records were admitted into evidence at the trial under s 93 of the Evidence Act 1977 (Qld) – whether this evidence was properly admitted – whether the admission of this evidence caused any unwarranted prejudice to the accused

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – where the case against the appellant at trial included a number of circumstantial components – whether the direction given by the learned trial judge to the jury was sufficient to ensure that the jury understood the nature of circumstantial evidence and their role in assessing the case against the accused

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – where the Crown case against the appellant at trial relied upon the complainant's identification of the appellant as his attacker – whether the direction given by the learned trial judge to the jury adequately warned about the dangers of identification evidence and the particular difficulties with the identification evidence admitted in these circumstances

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – where the appellant was convicted of one count of burglary with circumstances of aggravation and one count of unlawfully doing grievous bodily harm with intent – where the appellant was sentenced to six and a half years imprisonment in respect of each offence – whether in the circumstances the sentence imposed was manifestly excessive

Evidence Act 1977 (Qld), s 93

Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, considered
R v Chevalley [1996] QCA 180, cited
R v Thompson[1997] QCA 94, applied
Re TJW [1989] 1 Qd R…

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 Laing

Details

AGLC: R v Laing [2008] QCA 317
Case: [2008] QCA 317
Decision Date: 10 October 2008

CaseChat Overview and Summary

In the case of R v Laing, the appellant contested their conviction and sentence following a trial in the Supreme Court of Queensland. The appellant was found guilty of burglary with circumstances of aggravation and unlawfully doing grievous bodily harm with intent. The appeal against the conviction centred on several grounds, including the alleged improper admission of evidence and the trial judge's directions to the jury concerning the evaluation of circumstantial evidence and identification evidence. The appeal against the sentence argued that the sentence imposed was manifestly excessive.

The court examined whether the evidence of tools found in the appellant's car and the complainant's hospital records were properly admitted and if their admission prejudiced the appellant. Additionally, the court assessed if the trial judge's directions to the jury were sufficient to ensure they understood the nature of circumstantial evidence and the inherent risks associated with identification evidence. Finally, the court deliberated on whether the sentence of six and a half years imprisonment for each offence was manifestly excessive.

The Court of Appeal held that the evidence in question was properly admitted and did not cause unwarranted prejudice to the appellant. The trial judge's directions to the jury were deemed adequate in guiding them on the evaluation of circumstantial evidence and the risks of identification evidence. The court also found that the sentence imposed was not manifestly excessive, considering the severity of the offences committed.

The appeal was dismissed, and the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Appeal dismissed1.

Application for leave to appeal against sentence refused2.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

R v Laing [2008] QCA 317

Most Recent Citation

R v Clark [2009] QCA 2

Cases Citing This Decision

R v Kampf [2021] QCA 47
Citation 1 (Para 3)

…g & Morgan Ex parte Attorney-General (Qld) ,[16] R v Laing [17] and R v Houkamau .[18] These cases are of limited assistance. [16][2002] QCA 376. [17][2008] QCA 317. [18][2016] QCA 328.…
R v Surace [2020] QCA 134
Citation 2 (Para 10)

…ronger sentences from the court . Further, the appeal turned on a point concerning the parity principle, which makes the finding unhelpful.” [9][2008] QCA 317. [10][2006] QCA 25. [11][2002] QCA 34. [12][2004] QCA 124. [13]At 10, [42] (my emphasis, citations omitted).…
R v Gatti [2018] QCA 98
Citation 3 (Para 1)

…he sentence (resulting in an eligibility date of 28 May 2018). [1][2016] QCA 333. [2][2010] QCA 266. [3][2011] QCA 383. [4][2015] QCA 129. [5][2008] QCA 317. [6][2006] QCA 25. [7][2008] QCA 200 at [63] and [64]. Consideration…
Beaven v Wagner Industrial Services Pty Ltd [2017] QCA 246
Citation 4

…VSCA 294, cited R v Gardner [1980] Qd R 531, cited R v Laing [2008] QCA 317, cited R v LRG (2006) 16 VR 89; [2006] VSCA 288, considered R v Ping [2006] 2 Qd R 69; [2005] QCA 472, considered R v TJW [1989] 1 Qd R 108, cited R v Tonkin [1975] Qd R 1, cited Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65, cited R…
R v Murdoch [2017] QCA 239
Citation 5 (Para 4)

…spect of an acquittal the absence of objection would not preclude this Court from intervening to prevent a miscarriage of justice.[88] [88] R v Laing [2008] QCA 317 at [17].…
R v Cobb [2016] QCA 333
Citation 6 (Para 21)

…th whom Fraser JA and Jones J agreed) said that the sentence imposed “was within the appropriate range, and was distinctly moderate.”[11] [10][2008] QCA 317. [11][2008] QCA 317 at [48].…
R v Piper [2015] QCA 129
Citation 7 (Para 5)

…ll circumstances of each, but the following can be noted. [3] R v Lyon [2006] QCA 146. ( Lyon ) [4] R v Amery [2011] QCA 383. ( Amery ) [5] R v Laing [2008] QCA 317. ( Laing )…
R v Warne [2015] QCA 9
Citation 8 (Para 26)

…er than the one used in the attack, which distinguished Cutts from the applicant. [24]Applicant’s submissions, paragraph 11. [25] R v Laing [2008] QCA 317 ( Laing ). [26] R v Granato [2006] QCA 25 ( Granato ). [27] R v W [2004] QCA 124 ( W ). Discussion…
High Court Bulletin [2013] HCAB 2
Citation 9

…Supreme Court of Queensland (Court of Appeal) [2008] QCA 317…
R v Amery [2011] QCA 383
Citation 10 (Para 1)

…Another comparable authority relied on by the applicant was R v Laing [2008] QCA 317. The offender was convicted after trial of burglary with circumstances of aggravation and doing grievous bodily harm with intent to do grievous bodily harm. He was sentenced to imprisonment of six and a half years for each offenc…
R v Honeysett; ex parte [2010] QCA 212
Citation 11 (Para 1)

…Mr Lynch relied on a number of cases, Perussich [2001] QCA 557, Mitchell [2006] QCA 240, Beer [2000] QCA 193, Laing [2008] QCA 317, Holland [2008] QCA 200, and Granato [2006] QCA 25, for a contention that “a sentence in the range of 5-7 years is appropriate with an accompanying early recommendation for parole”. I…
R v Clark [2009] QCA 2
Citation 12 (Para 5)

…jury were appropriate in the circumstances. They did not amount to any error of law. [11] (2005) 156 A Crim R 533; [2005] VSCA 249 at 557 [81]. [12] [2008] QCA 317 at [36].…

See all citing cases →

Cases Cited

R v Thompson [1997] QCA 94
Citation 1

…CLR 555; [1992] HCA 13, considered R v Chevalley [1996] QCA 180, cited R v Thompson [1997] QCA 94, applied Re TJW [1989] 1 Qd R 108, cited Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, cited Thompson and Wran v The Queen (1968) 117 CLR 313; [1968] HCA 21, cited COUNSEL: P E Smith for the appellant M R…
R v Chevalley [1996] QCA 180
Citation 2 (Para 1)

…ss to Mr Harrington's house and to attack Mr Harrington in the manner alleged.[2] [2] Thompson and Wran v The Queen (1968) 117 CLR 313; R v Chevalley [1996] QCA 180.…
Shepherd v The Queen [1990] HCA 56
Citation 3

…4, applied Re TJW [1989] 1 Qd R 108, cited Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, cited Thompson and Wran v The Queen (1968) 117 CLR 313; [1968] HCA 21, cited COUNSEL: P E Smith for the appellant M R Byrne for the respondent SOLICITORS: Fisher Dore Lawyers for the appellant Director of Public Pr…
Thompson and Wran v The Queen [1968] HCA 21
Citation 4

…170 CLR 573; [1990] HCA 56, cited Thompson and Wran v The Queen (1968) 117 CLR 313; [1968] HCA 21, cited COUNSEL: P E Smith for the appellant M R Byrne for the respondent SOLICITORS: Fisher Dore Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent…
Domican v R [1992] HCA 13
Citation 5

…tly excessive Evidence Act 1977 (Qld), s 93 Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, considered R v Chevalley [1996] QCA 180, cited R v Thompson [1997] QCA 94, applied Re TJW [1989] 1 Qd R 108, cited Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, cited Thompson and Wran v The Queen (1968)…
[1997] QCA 094 [1997] QCA 094
Citation 6 (Para 1)

…ch I have referred and the circumstance that his Honour did not declare the offence of doing grievous bodily harm to be a serious violent offence. [7][1997] QCA 094.…

Legislation Cited

Evidence Act 1977 (Qld) 93
2 mentions (from Para 1)

CITATION:	R v Laing [2008] QCA 317
PARTIES:	R v LAING, Richard Norman (appellant)
FILE NO/S:	CA No 21 of 2008 CA No 361 of 2007 DC No 3214 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	10 October 2008
DELIVERED AT:	Brisbane
HEARING DATE:	3 October 2008
JUDGES:	Keane and Fraser JJA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal dismissed1. Application for leave to appeal against sentence refused2.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where evidence was led by the Crown at trial of tools found in the boot of the appellant's car of the type said to have been used in the assault against the complainant – where the complainant's hospital records were admitted into evidence at the trial under s 93 of the Evidence Act 1977 (Qld) – whether this evidence was properly admitted – whether the admission of this evidence caused any unwarranted prejudice to the accused CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – where the case against the appellant at trial included a number of circumstantial components – whether the direction given by the learned trial judge to the jury was sufficient to ensure that the jury understood the nature of circumstantial evidence and their role in assessing the case against the accused CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – where the Crown case against the appellant at trial relied upon the complainant's identification of the appellant as his attacker – whether the direction given by the learned trial judge to the jury adequately warned about the dangers of identification evidence and the particular difficulties with the identification evidence admitted in these circumstances CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – where the appellant was convicted of one count of burglary with circumstances of aggravation and one count of unlawfully doing grievous bodily harm with intent – where the appellant was sentenced to six and a half years imprisonment in respect of each offence – whether in the circumstances the sentence imposed was manifestly excessive Evidence Act 1977 (Qld), s 93 Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, considered R v Chevalley [1996] QCA 180, cited R v Thompson[1997] QCA 94, applied Re TJW [1989] 1 Qd R…