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R v Lentini

R v Lentini

Case [2018] QCA 299 2 November 2018

Appeal

Misdirection or Non-Direction

Admissibility of Evidence

Expert Evidence

Compensatory Damages

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Lentini [2018] QCA 299

PARTIES:

R
v
LENTINI, Wendy Jayne
(appellant/applicant)

FILE NO/S:

CA No 58 of 2018
DC No 306 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Application for Extension of Time (Sentence)

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction: 27 February 2018; Date of Sentence: 27 March 2018 (Lynch QC DCJ)

DELIVERED ON:

2 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

20 September 2018

JUDGES:

Sofronoff P and Philippides JA and Henry J

ORDERS:

1.   Appeal dismissed.

2.   Application for an extension of time within which to apply for leave to appeal against sentence granted.

3.   Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted on one count of dishonestly gaining a pecuniary benefit of a value of more than $5,000 – where the appellant feigned symptoms of multiple sclerosis in order to make a claim against an insurance policy – where the sole issue at trial was whether the defence of compulsion per s 31(1)(d) of the Criminal Code applied – where the defence case at trial was that the appellant’s husband was domestically violent and had forced her to participate in the fraudulent scheme – where the defence called evidence at trial from a psychiatrist who gave expert opinion evidence as to the appellant’s mental state – where the psychiatrist opined that it was more probable than not that the appellant was suffering from battered woman syndrome at the time of offending – where the prosecution sought to attack the expert evidence of the psychiatrist by establishing that the psychiatrist’s opinion depended upon the truth of what the appellant had told her, but that the appellant was not a truthful witness, and that the psychiatrist had not been given information, in the form of contemporaneous doctor’s notes and video recordings of police interviews, that might have borne upon her opinion – where the appellant submits that, in order to make such submissions to the jury, the prosecution ought to have taken the psychiatrist, in cross-examination, to the particular parts of documents or videos that the prosecutor was going to use to challenge her conclusions, but failed to do so – where a request for directions adverting to these matters was sought but refused – whether the learned trial judge erred in failing to give the directions sought or, alternatively, whether the prosecutor acted contrary to the rule in Browne v Dunn (1893) 6 R 67

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellant submits that the learned trial judge erred in failing to direct the jury adequately about the expert evidence – where the expert evidence of the psychiatrist called on behalf of the defence was the only expert evidence given as to the appellant’s mental state – where the prosecution challenged both…

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 Lentini

Details

AGLC: R v Lentini [2018] QCA 299
Case: [2018] QCA 299
Decision Date: 2 November 2018

CaseChat Overview and Summary

The appellant in this case was convicted of dishonestly gaining a pecuniary benefit exceeding $5,000 by feigning symptoms of multiple sclerosis to claim against an insurance policy. The appeal and application for leave to appeal against sentence were heard in the Court of Appeal. The central legal issues pertained to whether the trial judge misdirected or failed to direct the jury appropriately regarding the expert evidence presented, particularly the psychiatrist's opinion on the appellant's mental state, and whether the sentencing judge erred in imposing a sentence on the appellant that was not commensurate with that of her co-offender.

The court examined whether the trial judge erred in not directing the jury adequately about the expert evidence, as the psychiatrist's testimony was the only expert evidence regarding the appellant's mental state. The defence argued that the jury should have accepted the psychiatrist's evidence as there was no contrary expert evidence. However, the court held that there was no error in the trial judge's direction to the jury, as the jury was entitled to consider the reliability and foundation of the expert evidence, especially given the prosecution's challenge to the psychiatrist's conclusions based on the appellant's credibility and the availability of additional information that was not presented to the psychiatrist.

In relation to the sentence, the appellant argued that the sentencing judge overemphasised the exclusion of the duress defence and did not sufficiently consider her cooperation with authorities. The court found that the sentencing judge had properly exercised their discretion, taking into account the seriousness of the offence and the need for deterrence and denunciation. The sentencing disparities between the appellant and her co-offender did not amount to an error warranting interference.

The court dismissed the appeal and denied the application for leave to appeal against sentence, but granted the application for an extension of time to apply for leave to appeal against the sentence.

Orders

Orders of the court

1. Appeal dismissed.

2. Application for an extension of time within which to apply for leave to appeal against sentence granted.

3. Application for leave to appeal against sentence refused.

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 Lentini [2018] QCA 299

Most Recent Citation

R v Mahony [2019] QCA 131

Cases citing this decision · 6 of 6 shown

Greer v Greer
[2021] QCA 143 Para 10

…Makita (Aust) Pty Ltd v Sprowles at 743-4 [85]; R v Sica [2014] 2 Qd R 168 per Muir and Gotterson JJA and Applegarth J at 189-90 [104]; R v Lentini [2018] QCA 299 per Sofronoff P, with Philippides JA and Henry JA agreeing, at [55]; Dasreef Pty Ltd v Hawchar at 622-4 [91] to [94]. However, the extent to which this…
R v Smith (aka Stella)
[2021] QCA 139 Para 31

…the facts proved so as to reveal that their conclusion was based on their expertise.[35] [35] R v Sica [2014] 2 Qd R 168 at [104] and R v Lentini [2018] QCA 299 at [55].…
Springfield City Group Pty Ltd v Pipe Networks Pty Ltd
[2020] QSC 395 Para 104

…been followed in the Queensland Court of Appeal: R v Sica [2014] 2 Qd R 168 per Muir and Gotterson JJA and Applegarth J at [104]; R v Lentini [2018] QCA 299 per Sofronoff P, with Philippides JA and Henry JA agreeing, at [55]. (b) In Dasreef Pty Ltd v Hawchar at [91], Heydon J called this rule the ‘statement of re…
Cotter v Commissioner of Police
[2020] QDC 91 Para 1

…ral assessment of the overall principle relevant and helpful[69] and referred to the case immediately before delivering her verdict. [68] R v Lentini [2018] QCA 299, [42] – [46]. [69]Day 5, Page 3, ll 22 – 37.…
Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 5)
[2019] QSC 210 Para 104

…e been followed in the Queensland Court of Appeal: R v Sica [2014] 2 Qd R 168 per Muir and Gotterson JJA and Applegarth J at [104]; R v Lentini [2018] QCA 299 per Sofronoff P, with Philippides JA and Henry JA agreeing, at [55].…
R v Mahony
[2019] QCA 131 Para 27

…42]. [4] Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh [1953] SC 34 at 39-40, cited with approval in R v Lentini [2018] QCA 299 at [55].…

View all 6 citing cases →

Cases cited in this decision · 9 of 9 shown

Taiapa v The Queen
[2009] HCA 53

…cited R v Turner [1975] QB 834, cited Taiapa v The Queen (2009) 240 CLR 95; [2009] HCA 53, cited COUNSEL: S C Holt QC, with A J Kimmins, for the appellant/applicant D Balic for the respondent SOLICITORS: Moloney MacCallum Abdelshahied Lawyers for the appellant/applicant Director of Public Prosecutions (Queenslan…
R v Taiapa
[2008] QCA 204 Para 13

…it was necessary that the threat be operative in overpowering the appellant’s will at the time she did the fraudulent acts.[2] [2] R v Taiapa [2008] QCA 204 at [30]-[31] affirmed Taiapa v The Queen (2009) 240 CLR 95.…
Hone v The State of Western Australia
[2007] WASCA 283 Para 11

…t the jury would have been entitled to reject out of hand because of its defective foundation. [16]Appellant’s outline, paragraph [36] citing Hone v Western Australia (2007) 179 A Crim R 138 at [124] per Miller JA.…
R v Smith
[2005] QCA 1

…A 305, cited R v Brown (1986) 43 SASR 33, cited R v Smith [2005] 2 Qd R 69; [2005] QCA 1 , cited R v Taiapa (2008) 186 A Crim R 252; [2008] QCA 204 , cited R v Turner [1975] QB 834, cited Taiapa v The Queen (2009) 240 CLR 95; [2009] HCA 53, cited COUNSEL: S C Holt QC, with A J Kimmins, for the appellant/applica…
Makita (Australia) Pty Ltd v Sprowles
[2001] NSWCA 305

…6 R 67, distinguished Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, cited R v Brown (1986) 43 SASR 33, cited R v Smith [2005] 2 Qd R 69; [2005] QCA 1 , cited R v Taiapa (2008) 186 A Crim R 252; [2008] QCA 204 , cited R v Turner [1975] QB 834, cited Taiapa v The Queen (2009) 240 CLR 95; [20…
[1975] QB 834
[1975] QB 834 Para 26

…idence, it is a matter entirely for the jury to decide whether to accept the evidence, what weight to give it and how to apply it. [8] R v Turner [1975] QB 834 at 840 per Lawton J; cited in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [69] per Heydon JA. [9] Paric v John Holland Constructions Pty…
[1953] SC 34
[1953] SC 34 Para 27

…y Ltd v Sprowles (2001) 52 NSWLR 705 at 729-730 per Heydon JA citing Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh [1953] SC 34 at 39-40, 42. [12] Ibid .…
Browne v Dunn
113 ER 1206

…in failing to give the directions sought or, alternatively, whether the prosecutor acted contrary to the rule in Browne v Dunn (1893) 6 R 67 CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellant submits that the learned trial judge erred in failing to direct the…
Pty Ltd v Sprowles
636 F Supp 1419 Para 26

…to accept the evidence, what weight to give it and how to apply it. [8] R v Turner [1975] QB 834 at 840 per Lawton J; cited in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [69] per Heydon JA. [9] Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510 per Samuels JA. [10] Ibid .…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Lentini [2018] QCA 299
PARTIES:	R v LENTINI, Wendy Jayne (appellant/applicant)
FILE NO/S:	CA No 58 of 2018 DC No 306 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Application for Extension of Time (Sentence)
ORIGINATING COURT:	District Court at Ipswich – Date of Conviction: 27 February 2018; Date of Sentence: 27 March 2018 (Lynch QC DCJ)
DELIVERED ON:	2 November 2018
DELIVERED AT:	Brisbane
HEARING DATE:	20 September 2018
JUDGES:	Sofronoff P and Philippides JA and Henry J
ORDERS:	1. Appeal dismissed. 2. Application for an extension of time within which to apply for leave to appeal against sentence granted. 3. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted on one count of dishonestly gaining a pecuniary benefit of a value of more than $5,000 – where the appellant feigned symptoms of multiple sclerosis in order to make a claim against an insurance policy – where the sole issue at trial was whether the defence of compulsion per s 31(1)(d) of the Criminal Code applied – where the defence case at trial was that the appellant’s husband was domestically violent and had forced her to participate in the fraudulent scheme – where the defence called evidence at trial from a psychiatrist who gave expert opinion evidence as to the appellant’s mental state – where the psychiatrist opined that it was more probable than not that the appellant was suffering from battered woman syndrome at the time of offending – where the prosecution sought to attack the expert evidence of the psychiatrist by establishing that the psychiatrist’s opinion depended upon the truth of what the appellant had told her, but that the appellant was not a truthful witness, and that the psychiatrist had not been given information, in the form of contemporaneous doctor’s notes and video recordings of police interviews, that might have borne upon her opinion – where the appellant submits that, in order to make such submissions to the jury, the prosecution ought to have taken the psychiatrist, in cross-examination, to the particular parts of documents or videos that the prosecutor was going to use to challenge her conclusions, but failed to do so – where a request for directions adverting to these matters was sought but refused – whether the learned trial judge erred in failing to give the directions sought or, alternatively, whether the prosecutor acted contrary to the rule in Browne v Dunn (1893) 6 R 67 CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellant submits that the learned trial judge erred in failing to direct the jury adequately about the expert evidence – where the expert evidence of the psychiatrist called on behalf of the defence was the only expert evidence given as to the appellant’s mental state – where the prosecution challenged both…