R v Lee - [2004] QCA 284

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lee [2004] QCA 284

PARTIES:

R
v
LEE, Patrick Arthur
(appellant)

FILE NO/S:

CA No 113 of 2004
DC No 42 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

6 August 2004

DELIVERED AT:

Brisbane

HEARING DATE:

27 July 2004

JUDGES:

McMurdo P, Jerrard JA and Mackenzie J
Separate reasons for judgment of each member of the Court, McMurdo P and Jerrard JA concurring as to the orders made, Mackenzie J dissenting

ORDERS:

1.   Allow the appeal

2.   Set aside the verdict of guilty

3.   New trial ordered

4.   Set aside the order of the trial judge of 26 March 2004 activating the suspended sentence imposed on 28 October 2002

5.   On the offence of assault occasioning bodily harm, grant the appellant bail on his own undertaking

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – CHARACTER AND PREVIOUS CONVICTIONS – OTHER MATTERS – where appellant convicted of assault occasioning bodily harm – where issue was whether Crown could disprove provocation – where witness gave evidence that appellant fled the scene when he became aware police had been called, saying that he already had 'something round his head' – where evidence fell spontaneously from the witness – where verdict of guilty open on the evidence – whether prejudicial evidence may have caused a miscarriage of justice

Lergesner v Carroll [1991] 1 Qd R 206, cited
R v Raabe [1985] 1 Qd R 115, cited

COUNSEL:

B G Devereaux for the appellant
B G Campbell for the respondent

SOLICITORS:

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

McMURDO P: Patrick Arthur Lee was convicted on 25 March 2004 of assaulting Noel John Cahill and doing him bodily harm at Kawana Waters on 22 March 2003. He now appeals against that conviction on three grounds.

The first is that the learned trial judge erred when he rejected an application by the appellant's counsel to discharge the jury after Mr Cahill gave prejudicial evidence suggesting that Mr Lee had been in trouble with police. He next contends that the learned primary judge erred in allowing police officer Betts to give evidence of a statement made to him out of court by Mr Lee because the statement was self-serving and the whole conversation was not put into evidence. He has been given leave to argue a third ground of appeal, that the learned primary judge's directions to the jury as to the proportionality of Mr Lee's reaction to the provocation were inadequate.

The evidence

The relevant evidence in the case is as follows. Mr Cahill was driving to work in his 4WD Nissan Patrol on the Nicklin Way at about 6.15am on 22 March 2003. He was 55 years old, a little over six feet tall and weighed at least 105 kilograms. The road was two lanes each way with a 20 foot wide bitumen…

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 [2004] QCA 284
Case: [2004] QCA 284
Decision Date: 6 August 2004

CaseChat Overview and Summary

In the case of R v Lee, the appellant was convicted of assault occasioning bodily harm and subsequently sentenced to a suspended sentence. The dispute arose from the trial judge's decision to allow certain evidence that the appellant's counsel argued was prejudicial and could potentially lead to a miscarriage of justice. The Court of Appeal was tasked with determining whether the Crown had successfully disproven the defence of provocation and whether the admission of certain evidence might have affected the verdict.

The central legal issue was whether the Crown had adequately disproven the defence of provocation, particularly in light of the witness's spontaneous statement that the appellant fled the scene upon becoming aware that the police had been called, stating he already had 'something round his head.' This evidence, which the defence argued was prejudicial and potentially misleading, was a focal point of the appeal. The court had to assess whether the admission of this evidence was justified and whether it might have contributed to the appellant's conviction.

The Court of Appeal found that the admission of the prejudicial evidence likely influenced the jury's decision. The court held that the evidence was not sufficiently probative to outweigh its prejudicial effect, and the trial judge should have excluded it. Consequently, the court concluded that the prejudicial evidence may have caused a miscarriage of justice. The appeal was allowed, the verdict of guilty was set aside, and a new trial was ordered. Additionally, the order activating the suspended sentence was set aside, and the appellant was granted bail on his own undertaking for the offence of assault occasioning bodily harm.

Orders

Orders of the court

1. Allow the appeal

2. Set aside the verdict of guilty

3. New trial ordered

4. Set aside the order of the trial judge of 26 March 2004 activating the suspended sentence imposed on 28 October 2002

5. On the offence of assault occasioning bodily harm, grant the appellant bail on his own undertaking

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 [2004] QCA 284
PARTIES:	R v LEE, Patrick Arthur (appellant)
FILE NO/S:	CA No 113 of 2004 DC No 42 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	6 August 2004
DELIVERED AT:	Brisbane
HEARING DATE:	27 July 2004
JUDGES:	McMurdo P, Jerrard JA and Mackenzie J Separate reasons for judgment of each member of the Court, McMurdo P and Jerrard JA concurring as to the orders made, Mackenzie J dissenting
ORDERS:	1. Allow the appeal 2. Set aside the verdict of guilty 3. New trial ordered 4. Set aside the order of the trial judge of 26 March 2004 activating the suspended sentence imposed on 28 October 2002 5. On the offence of assault occasioning bodily harm, grant the appellant bail on his own undertaking
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – CHARACTER AND PREVIOUS CONVICTIONS – OTHER MATTERS – where appellant convicted of assault occasioning bodily harm – where issue was whether Crown could disprove provocation – where witness gave evidence that appellant fled the scene when he became aware police had been called, saying that he already had 'something round his head' – where evidence fell spontaneously from the witness – where verdict of guilty open on the evidence – whether prejudicial evidence may have caused a miscarriage of justice Lergesner v Carroll [1991] 1 Qd R 206, cited R v Raabe [1985] 1 Qd R 115, cited
COUNSEL:	B G Devereaux for the appellant B G Campbell for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent