SUPREME COURT OF QUEENSLAND
CITATION: R v Lester [2008] QCA 354 PARTIES: R v LESTER, Jim (appellant) FILE NO/S: CA No 326 of 2007 SC No 1015 of 2006 DIVISION: Court of Appeal PROCEEDING: Appeal against Conviction ORIGINATING
COURT:Supreme Court at Brisbane DELIVERED ON: 14 November 2008 DELIVERED AT: Brisbane HEARING DATE: 29 August 2008 JUDGES: Fraser JA, Mackenzie AJA and Douglas J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders madeORDERS: 1. Appeal allowed
2. Verdict of guilty and conviction set aside
3. Re-trial orderedCATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where appellant convicted of murder of his estranged wife – where appellant allegedly recruited another man, Kinsella, to murder his estranged wife – where Kinsella gave evidence that the appellant had recruited him to commit the murder – where evidence was also given by various witnesses which recounted statements allegedly made by the deceased to the effect that she had been told that an unidentified person had been hired by the appellant to kill her – whether the evidence given by the various witnesses was admissible EVIDENCE – ADMISSIBILITY AND RELEVANCY – FACTS SHOWING STATE OF MIND – IN GENERAL – where s 93B of the Evidence Act 1997 (Qld) provided an exception to the hearsay rule if the person who made the representation was unavailable to give evidence – where the provision made reference to an asserted fact – whether asserted fact included an asserted state of mind EVIDENCE – ADMISSIBILITY AND RELEVANCY – HEARSAY – STATEMENTS – OTHER STATEMENTS – where evidence given by various witnesses attesting to statements allegedly made by the deceased to the effect that she had been told than an unidentified person had been hired by the appellant to kill her – where the statements had never been communicated to the appellant – where the evidence was admitted on the basis that it spoke to the nature of the relationship between the appellant and the deceased – where the evidence was not used as evidence that the appellant had in fact hired someone – whether the evidence directly or indirectly bore upon the appellant’s past or likely future state of mind or conduct – whether the evidence bore upon whether or the not the appellant was implicated in the murder of the deceased – whether the evidence was admissible – whether the evidence was relevant Criminal Code 1889 (Qld), s 590AA, s 668E(1A)
Evidence Act 1977 (Qld), s 17, s 93B, s 98, s 130, s 132B
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7,
cited
R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA
386, cited
R v Anderson (2000) 1 VR 1; [2000] VSCA 16, cited
R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA…
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Details
- AGLC
- R v Lester [2008] QCA 354
- Case
- [2008] QCA 354
- Decision Date
CaseChat Overview and Summary
The appellant, Lester, was convicted of the murder of his estranged wife and appealed against his conviction. The court was required to determine the admissibility of evidence given by various witnesses who recounted statements allegedly made by the deceased to the effect that she had been told that an unidentified person had been hired by the appellant to kill her. The appellant argued that the evidence was hearsay and inadmissible. The court held that the evidence was admissible as it was relevant to the appellant's motive and intent in committing the murder, and the deceased's fear of the appellant. The court also held that the evidence was not hearsay as it was not being used to prove the truth of the statements attributed to the deceased, but rather to show the appellant's motive and intent. The court found that the trial judge had erred in excluding the evidence and that the error was likely to have affected the outcome of the trial. The appeal was allowed, the verdict of guilty and conviction set aside, and a re-trial ordered.
Orders
Orders of the court
1. Appeal allowed
2. Verdict of guilty and conviction set aside
3. Re-trial ordered
Background
Background to the litigation
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Evidence
Evidence Before The Court
The Crown relied upon motives it attributed to the appellant for wanting Ms Lester dead (that the appellant was angered by his wife's rejection of him and her preference for Morrison; the dispute about the family home; the appellant's blame of his wife for the death of their son and the break-up of their marriage) and the absence of any apparent motive in Kinsella to murder Ms Lester other than Kinsella's evidence that the appellant promised to pay him to do so. The evidence in contention in this appeal The prosecutor adduced evidence concerning the nature of the relationship between the appellant and his wife in the months prior to her death. This evidence included the evidence of Browning, Catalano and Neilsen the admissibility of which is in issue in this appeal. Ms Browning and Mr Catalano both gave evidence of statements made to them by Ms Lester at Ms Browning and Mr Catalano's house in Hervey Bay about two weeks before Ms Lester was murdered on 19 November 2002. Ms Browning said that Ms Lester told them that two people came to her house (in Hervey Bay); that they came separately; that "they came to see her about knocking her off"; that "they did come to see her, but they couldn't go through with it"; and that one of the people who came used to work with the appellant on a fruit and vegie run many years ago. (The last statement is consistent with one of the men having been Bartlett). The second part of Ms Browning's relevant evidence was that she asked Ms Lester whether or not the appellant would have paid "to have her knocked off", in response to which Ms Lester said "yes". In cross-examination Ms Browning agreed that Ms Lester told her that the person who worked on the fruit run said "I was asked by Jim to … knock you off … but I'm not going to do it." Mr Catalano gave evidence that Ms Lester said that "two friends had gone around and warned her about that Jim had sent somebody to knock her off, or whatever"; that "she was frightened"; and that she said "I think Jim is going to kill me one day." Mr Catalano added that Ms Lester said "that Jim had sent these two blokes and – yeah, they were good friends of both sides, anyway, of Jim and Ingrid." He also gave evidence that he told Ms Lester to "Just go. Leave everything." In cross-examination Mr Catalano indicated that Ms Browning was not present when that conversation occurred, she having earlier gone to bed, but that he told her about it afterwards. Mr Catalano's evidence was that Ms Lester said that her two friends had come around together, rather than separately. The evidence given by Neilsen which is in issue in this appeal was that Ms Lester made the following statements to him: Questions concerning the admissibility of this and a great deal of other evidence were agitated at a pre-trial hearing. A judge of the Trial Division made a ruling pursuant to s 590AA of the Criminal Code that the contentious evidence was admissible evidence of Ms Lester's fear of the appellant but that the evidence was not admissible evidence of the truth of the statements attributed to Ms Lester.[4] [4] R v Lester [2007] QSC 229.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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