R v Le - [2009] QCA 343

SUPREME COURT OF QUEENSLAND

CITATION:

R v Le [2009] QCA 343

PARTIES:

R
v
LE, Huy Tran
(appellant)

FILE NO/S:

CA No 137 of 2009
DC No 1987 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

6 November 2009

DELIVERED AT:

Brisbane

HEARING DATE:

22 October 2009

JUDGES:

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

ORDERS:

1.   Appeal allowed;

2.   Appellant’s conviction on count 2 of the indictment be set aside; and

3.   A new trial be ordered in respect of that count.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE – UNRELIABLE AND HOSTILE WITNESS – where appellant convicted, after a trial, of one count of unlawfully doing grievous bodily harm (count 1), one count of unlawful wounding (count 2) and one count of robbery with personal violence in company with another person (count 3) – where complainant had identified the appellant as his assailant in a photoboard identification and gave a detailed statement to police – where complainant at trial stated he had not told the truth in his police statement – where primary judge declared complainant a hostile witness – whether primary judge erred in so declaring

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR OR PROSECUTION – where prosecutor remarked in closing that the complainant’s evidence was "somewhat unusual" and instructed the jury not to speculate about why the complainant was no longer prepared to identify his assailant – whether prosecutor impermissibly encouraged the jury to take into account the bad conduct of the appellant

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGES – CONTROL OF PROCEEDINGS – DISCHARGE OF JURY – where a witness, during his evidence-in-chief, revealed he had met the appellant previously in gaol – whether primary judge erred in refusing to accede to the appellant’s counsel’s application to discharge the jury after the prejudicial evidence was given

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where primary judge, in relation to count 2, directed the jury as to the applicability of s 23 Criminal Code 1899 (Qld) – whether primary judge posed an erroneous test for the application of that section

Criminal Code 1899 (Qld), s 23
Evidence Act 1977 (Qld), s 17

McLellan v Bowyer (1961) 106 CLR 95; [1961] HCA 49, cited
R v Hadlow [1992] 2 Qd R 440, considered
R v Hall [1986] 1 Qd R 462, considered
R v Thompson [1964] QWN 25, considered
Timbu Kolian v The Queen (1968) 119 CLR 47; [1968] HCA 66, applied

COUNSEL:

S M Ryan for the appellant
M B Lehane for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

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 Le

Details

AGLC: R v Le [2009] QCA 343
Case: [2009] QCA 343
Decision Date: 6 November 2009

CaseChat Overview and Summary

The appellant was convicted of three counts: one of unlawfully doing grievous bodily harm, one of unlawful wounding, and one of robbery with personal violence in company with another person. The case proceeded on appeal, raising several issues concerning the conduct of the trial and the legal directions given to the jury. The first issue was whether the trial judge erred in declaring the complainant a hostile witness, given his retraction of his earlier statement. The second issue was whether the prosecutor's comments to the jury about the complainant's evidence amounted to an improper comment on the appellant's conduct. The third issue was whether the trial judge should have discharged the jury upon learning that a witness had previously met the appellant in prison. Finally, the court had to determine whether there was a misdirection concerning the application of a section of the Criminal Code.

The court found that the trial judge correctly identified the complainant as a hostile witness, given his retraction of his earlier statement. The court also found that the prosecutor's comments to the jury did not improperly comment on the appellant's conduct. The court held that the trial judge should have discharged the jury upon learning that a witness had previously met the appellant in prison, as this was prejudicial. Finally, the court found that there was a misdirection concerning the application of a section of the Criminal Code.

The appeal was allowed, the appellant's conviction on count 2 of the indictment was set aside, and a new trial was ordered in respect of that count. The court did not find any errors in relation to the other two counts and therefore the convictions on those counts were upheld. The court did not order any further orders or make any further comments on the matter.

Orders

Orders of the court

1. Appeal allowed;

2. Appellant’s conviction on count 2 of the indictment be set aside; and

3. A new trial be ordered in respect of that count.

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 Le [2009] QCA 343
PARTIES:	R v LE, Huy Tran (appellant)
FILE NO/S:	CA No 137 of 2009 DC No 1987 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	6 November 2009
DELIVERED AT:	Brisbane
HEARING DATE:	22 October 2009
JUDGES:	Keane, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed; 2. Appellant’s conviction on count 2 of the indictment be set aside; and 3. A new trial be ordered in respect of that count.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE – UNRELIABLE AND HOSTILE WITNESS – where appellant convicted, after a trial, of one count of unlawfully doing grievous bodily harm (count 1), one count of unlawful wounding (count 2) and one count of robbery with personal violence in company with another person (count 3) – where complainant had identified the appellant as his assailant in a photoboard identification and gave a detailed statement to police – where complainant at trial stated he had not told the truth in his police statement – where primary judge declared complainant a hostile witness – whether primary judge erred in so declaring CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR OR PROSECUTION – where prosecutor remarked in closing that the complainant’s evidence was "somewhat unusual" and instructed the jury not to speculate about why the complainant was no longer prepared to identify his assailant – whether prosecutor impermissibly encouraged the jury to take into account the bad conduct of the appellant CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGES – CONTROL OF PROCEEDINGS – DISCHARGE OF JURY – where a witness, during his evidence-in-chief, revealed he had met the appellant previously in gaol – whether primary judge erred in refusing to accede to the appellant’s counsel’s application to discharge the jury after the prejudicial evidence was given CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where primary judge, in relation to count 2, directed the jury as to the applicability of s 23 Criminal Code 1899 (Qld) – whether primary judge posed an erroneous test for the application of that section Criminal Code 1899 (Qld), s 23 Evidence Act 1977 (Qld), s 17 McLellan v Bowyer (1961) 106 CLR 95; [1961] HCA 49, cited R v Hadlow [1992] 2 Qd R 440, considered R v Hall [1986] 1 Qd R 462, considered R v Thompson [1964] QWN 25, considered Timbu Kolian v The Queen (1968) 119 CLR 47; [1968] HCA 66, applied
COUNSEL:	S M Ryan for the appellant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant