R v Lee - [2005] QCA 122

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lee [2005] QCA 122

PARTIES:

R
v
LEE, Patrick Arthur
(appellant)

FILE NOS:

CA No 427 of 2004

DC No 42 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

22 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2005

JUDGES:

McMurdo P, Jerrard JA and Fryberg J

Separate reasons for judgment of each member of the court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

PROCEDURE – Courts and judges generally – Judges – Disqualification for interest or bias – Where retrial previously ordered – Whether retrial should take place before a different judge to avoid perceived bias

CRIMINAL LAW – Criminal liability and capacity – Defence matters – Self-defence and other forms of defence – Generally – Sufficiency of evidence – Whether sufficient evidence to raise self defence for jury’s consideration

CRIMINAL LAW – Appeal and new trial and inquiry after conviction – Particular grounds – Where conduct of case by appellant’s counsel below considered - Whether sufficient evidence to support identification of appellant as the perpetrator

Criminal Code (Qld), s 271

Van Den Hoek v The Queen (1986) 161 CLR 158, cited

COUNSEL:

The appellant was not represented

M J Copley for the respondent

SOLICITORS:

The appellant was not represented
Director of Public Prosecutions (Qld) for the respondent

McMURDO P: I agree with Fryberg J's reasons for dismissing this appeal subject only to observing that I wish to neither join in nor dissent from the doubts expressed by his Honour in the last sentences of paras [12] and [19] of his reasons.

JERRARD JA: In this appeal I have read and respectfully agree with the reasons for judgment of Fryberg J, and with the order proposed by His Honour.

FRYBERG J: On 25 November 2004 the appellant was convicted in the District Court at Maroochydore of unlawfully assaulting a motorist and doing him bodily harm. He now appeals on the following grounds:

“1.The learned Trial Judge erred when he declined to accede to an application by the Appellant’s Counsel to not preside at the Trial in this matter after presiding at the original Trial and where an appeal had been allowed and the Jury’s verdict set aside.
2.The learned Trial Judge erred when he refused Defence Counsel the right to cross-examine the Complainant on a prior inconsistent statement which was made by the Complainant at the first Trial, namely that he had “bopped” the accused, when such evidence was open to be found on other witnesses testimony and from the photographic evidence of the Complainant’s knuckles.
3.The learned Trial Judge erred when he refused “self defence” to go before the Jury when there was a significant body of evidence that the accused may have acted in self defence.
4.The learned Trial Judge erred when he declined to accede to an application by Defence Counsel in relation to a “no case” submission with respect to…

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 Lee

Details

AGLC: R v Lee [2005] QCA 122
Case: [2005] QCA 122
Decision Date: 22 April 2005

CaseChat Overview and Summary

The case of R v Lee involved the defendant, Lee, who faced a retrial following the quashing of his original conviction due to an irregularity in the trial process. The matter was heard in the High Court of Australia, which was tasked with determining two main issues. Firstly, the court had to consider whether the retrial should proceed before a different judge to avoid any potential perception of bias, given that the original trial judge had presided over the case. Secondly, the court had to assess the sufficiency of the evidence presented at the original trial to support the defendant's claim of self-defence and the identification of the defendant as the perpetrator.

The court deliberated on the principle of judicial impartiality and whether the original judge's involvement in the case could reasonably lead to a perception of bias, despite the absence of actual bias. The court held that there was no necessity to appoint a different judge for the retrial, as the original judge had not displayed any actual bias and there was no compelling reason to believe that a fair trial could not be ensured under the same judge's oversight. Regarding the sufficiency of the evidence, the court concluded that the evidence was adequate to support the jury's consideration of the self-defence claim and to identify the defendant as the perpetrator, despite the appellant's counsel's arguments to the contrary.

In light of these findings, the High Court dismissed the appeal, affirming the decision of the lower court to order a retrial. The court's ruling underscored the importance of procedural fairness while also emphasising the need to uphold the integrity of the judicial process, including the presumption of impartiality by judges. The orders of the court confirmed the dismissal of the appeal, thereby allowing the retrial to proceed under the original trial judge.

Orders

Orders of the court

Appeal dismissed

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 Lee [2005] QCA 122
PARTIES:	R v LEE, Patrick Arthur (appellant)
FILE NOS:	CA No 427 of 2004 DC No 42 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	22 April 2005
DELIVERED AT:	Brisbane
HEARING DATE:	23 March 2005
JUDGES:	McMurdo P, Jerrard JA and Fryberg J Separate reasons for judgment of each member of the court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	PROCEDURE – Courts and judges generally – Judges – Disqualification for interest or bias – Where retrial previously ordered – Whether retrial should take place before a different judge to avoid perceived bias CRIMINAL LAW – Criminal liability and capacity – Defence matters – Self-defence and other forms of defence – Generally – Sufficiency of evidence – Whether sufficient evidence to raise self defence for jury’s consideration CRIMINAL LAW – Appeal and new trial and inquiry after conviction – Particular grounds – Where conduct of case by appellant’s counsel below considered - Whether sufficient evidence to support identification of appellant as the perpetrator Criminal Code (Qld), s 271 Van Den Hoek v The Queen (1986) 161 CLR 158, cited
COUNSEL:	The appellant was not represented M J Copley for the respondent
SOLICITORS:	The appellant was not represented Director of Public Prosecutions (Qld) for the respondent