R v Lepp - [1998] QCA 411

IN THE COURT OF APPEAL	[1998] QCA 411
SUPREME COURT OF QUEENSLAND

C.A. No. 229 of 1998

Brisbane

[R. v. Lepp]

THE QUEEN

CHANTAL ANN LEPP

(Applicant) Appellant
McPherson J.A.
Pincus J.A.
Muir J.

Judgment delivered 4 December 1998

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO

APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	CRIMINAL LAW - appeal against conviction - direction as to evidence of previous violence as proof of intent - sentence application - whether sentence manifestly excessive.
Counsel:	Mrs D. Richards for the applicant/appellant Mr D. Bullock for the respondent
Solicitors:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	2 November 1998

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 4 December 1998

I agree with the reasons of Muir J. for dismissing both the appeal against conviction and the application for leave to appeal against sentence.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 4 December 1998

I have read the reasons of Muir J. in which the facts and issues are fully set out. The point taken, as to the appeal against conviction, was in essence based on a single sentence in the judge’s summing-up: "But if you heard that the girl has this capacity for violence, it might at least reduce the force of one’s normal expectation: but no more than that". It is not the law that proof of general propensity to engage in violent behaviour can assist the Crown, where the question is whether or not the accused had an intention to kill. That is so, not because propensity evidence is always excluded, but because it can never be admitted unless it has a "specific connection with the commission of the offence charged": Pfennig (1995) 182 C.L.R. 461 at 485.
The general effect of the passage from the summing-up in which the sentence I have quoted occurs, which passage is set out in the reasons of Muir J., was that the jury should not use against the appellant evidence of a tendency towards violent behaviour. The sentence was capable of being understood as a qualification of that proposition and, if so understood, was erroneous. In my opinion, however, it is very unlikely that the inclusion of this sentence, couched in rather abstract language ("reduce the force of one’s normal expectation") could have made a difference to the outcome of the trial. Its inclusion did not cause a substantial miscarriage of justice to occur.
As to the sentence of imprisonment imposed, it is plain that the judge was influenced, as Muir J. points out, by the thought that, when not incarcerated, the appellant was likely to place other people and particularly Mrs Lennon at risk of physical harm. Had the sentencing judge not adopted that view, the sentence would have been substantially lower. There was no professional opinion placed before the judge on the question whether it was likely…

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 Lepp

Details

AGLC: R v Lepp [1998] QCA 411
Case: [1998] QCA 411
Decision Date: 4/12/1998

CaseChat Overview and Summary

The case of R v Lepp involved an appeal against the conviction of the defendant, Lepp, on charges related to criminal activities. The dispute centred around the admissibility of evidence of prior violent acts and the application of sentencing principles. The matter was heard in the appellate court, where the court was tasked with reviewing the trial judge's direction to the jury regarding the use of prior violence as evidence of intent. Additionally, the appeal questioned whether the sentence imposed was manifestly excessive.

The legal issues before the court included whether the trial judge correctly instructed the jury on the use of prior violence evidence and whether the sentence was disproportionate to the crime committed. The court had to consider the principles governing the admissibility of evidence of prior bad acts and the factors relevant to sentencing proportionality. The defendant argued that the inclusion of prior violence evidence improperly influenced the jury, and that the sentence was excessively harsh.

The appellate court found that the trial judge did not err in directing the jury regarding the evidence of prior violence. The court held that such evidence was properly admitted to assist the jury in understanding the defendant's intent and was not used as character evidence. Regarding the sentence, the court concluded that it was not manifestly excessive, considering the severity of the crimes and the need for deterrence and retribution. The appeal was dismissed, and the conviction and sentence were upheld.

Orders