R v Lester

Case [2004] QCA 34

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lester [2004] QCA 34

PARTIES:

R
v
LESTER, Jim
(appellant/applicant)

FILE NO/S:

CA No 325 of 2003
SC No 209 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2004

JUDGES:

McMurdo P, Davies and McPherson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Appeal against conviction dismissed
2.    Application for leave to appeal against sentence       dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OBJECTION AND POINTS NOT RAISED IN COURT BELOW - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES - where appellant was convicted of attempted murder - where trial judge allowed a statement of a deceased witness to be admitted as evidence under s 93B Evidence Act 1977 - whether the statement's prejudicial effect outweighed its probative value

CRIMINAL LAW - JURISDICTION PRACTICE AND PROCEDURE - COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES - GENERALLY - where the prosecution suggested an adverse inference could be drawn from the failure to call the appellant's son as a witness - where the prosecution suggested an adverse inference could be drawn from the lies of the appellant made at trial - whether there was a miscarriage of justice

CRIMINAL LAW- JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CHARACTER OF OFFENCE - GENERALLY - where the appellant was convicted of attempted murder - where appellant sentenced to nine years imprisonment with a declaration that the offence is a serious violent offence - whether the sentence imposed is manifestly excessive

Evidence Act 1977 (Qld), s 93B

R v Bojovic [2000] 2 Qd R 183, followed
R v Brennan [1999] 2 Qd R 529, applied

R v Bryan; ex parte Attorney-General (Qld) [2003] QCA 18; CA No 410 of 2002, 5 February 2003, followed

R v Desalvo [2002] QCA 63; CA No 284 of 2001, 15 March 2002, considered

R v Harms [2002] QCA 99; CA No 36 of 2002, 19 March 2002, questioned

R v Jurcik [2001] QCA 390; CA No 87 of 2001, 21 September 2001, cited

R v Lewis; ex parte Attorney-General (Qld) [2003] QCA 133; CA No 339 of 2002; CA No 319 of 2002, 25 March 2003, followed

RPS v The Queen (2000) 199 CLR 620, cited

COUNSEL:

K M McGinness for appellant/applicant
R G Martin for respondent

SOLICITORS:

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

  1. McMURDO P:  I agree with Davies JA that both the appeal against conviction and the application for leave to appeal against sentence should be dismissed for the reasons he gives.

  1. I wish only to add the following observations as to the sentence.

  1. The break up of the appellant's 16…

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Details
AGLC
R v Lester [2004] QCA 34
Case
[2004] QCA 34
Decision Date

CaseChat Overview and Summary

In the matter of R v Lester, the appellant was convicted of attempted murder and brought an appeal against both his conviction and his sentence. The Queensland Court of Appeal was tasked with assessing the validity of the trial judge's decision to admit a statement made by a deceased witness under s 93B of the Evidence Act 1977, the prejudicial effect of certain evidence, and the fairness of the sentence imposed. The appellant argued that the prejudicial effect of the deceased witness's statement outweighed its probative value, that an adverse inference was improperly drawn from the failure to call his son as a witness, and that the sentence was manifestly excessive.

The court first addressed the admissibility of the deceased witness's statement. It found that the trial judge's decision to admit the statement was within the parameters set by prior case law, such as R v Bojovic, and that the probative value of the statement did not substantially outweigh its prejudicial effect. The court also considered the suggestion of an adverse inference from the appellant's failure to call his son as a witness and found no miscarriage of justice as the evidence presented was sufficient to convict the appellant independently of any inference. Furthermore, the court examined the sentence imposed and determined that it was not manifestly excessive, taking into account the serious nature of the offence and the relevant legal principles.

Consequently, the Court of Appeal dismissed the appellant's appeal against his conviction, holding that the trial judge's decision to admit the deceased witness's statement was appropriate and that there was no miscarriage of justice. The court also dismissed the application for leave to appeal against the sentence, affirming that the sentence was proportionate to the gravity of the offence. The appeal was thus unsuccessful on both counts, and the original conviction and sentence were upheld.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence 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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