R v Lovelock - [1999] QCA 501

SUPREME COURT OF QUEENSLAND

CITATION: R v Lovelock [1999] QCA 501
PARTIES: R
v
LOVELOCK, Edward Richard
(Appellant)
FILE NO/S: CA No 167 of 1999
SC No 18 of 1999
DIVISION: Court of Appeal
PROCEEDING: Appeal against conviction
ORIGINATING
COURT: Supreme Court at Rockhampton
DELIVERED ON: 3 December 1999
DELIVERED AT: Brisbane
HEARING DATE: 25 November 1999
JUDGES: Pincus and Thomas JJA and Helman J
Separate reasons for judgment of each member of the Court,
concurring as to the order made
ORDER: Appeal against conviction dismissed
CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND
PROCEDURE – SUMMING UP
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS
Murder – indemnified witness – whether warnings adequate – degree of emphasis required from trial judge – relevant factors
CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – VOIR DIRE – calling of witness not called at committal – whether voir dire necessary to enable cross examination to occur
COUNSEL: Mr J Hunter for the appellant

PINCUS JA: I have read the reasons of Thomas JA and agree with them.
If I had been of the view that there was a significant error in the judge's directions to the jury, of the kind contended for by the appellant, I would not have been in favour of setting aside the conviction. The overwhelming strength of the Crown case was not diminished by the evidence which the appellant gave; there was absolutely no reason to doubt that it was the appellant who killed Nauta.
I agree that the appeal should be dismissed.
THOMAS JA: The appellant appeals against his conviction of murder.
The prosecution case was that the appellant stabbed William Nauta after an argument at the appellant's property "Twin Dams". The deceased, mortally wounded, drove to a caravan park at Sapphire where he made dying declarations naming the appellant as his assailant. After the incident at "Twin Dams" the appellant and his girlfriend Alison Macintyre left the area and over the next few days walked over 50 kilometres through the bush.
The Crown witnesses included two persons who had been present when the stabbing occurred namely Ms Macintyre and Mr Steven Braid. Neither Ms Macintyre nor Mr Braid saw exactly what happened but their evidence of the circumstances and of statements by the appellant is highly relevant. The Crown case also included incriminating admissions made by the appellant to two other people.
The principal grounds of appeal relate to the evidence that was given by Ms Macintyre. Firstly it is alleged that the learned trial judge erred in failing to order a voir dire in order to test the admissibility of Ms Macintyre's evidence. The basis of this complaint is that her statement was not available at the time of committal and that defence counsel had therefore not had the opportunity of cross-examining her before trial.
Secondly it is alleged that the learned judge failed to give…

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 Lovelock

Details

AGLC: R v Lovelock [1999] QCA 501
Case: [1999] QCA 501
Decision Date: 3/12/1999

CaseChat Overview and Summary

In the case of R v Lovelock, the appellant sought to appeal against his conviction for murder, focusing on the trial judge's handling of evidence and warnings given to the jury. The court needed to decide whether the absence of a voir dire hearing, the timing of witness statements, and the warnings given to the jury concerning the credibility of certain witnesses were properly managed by the trial judge. The High Court was tasked with reviewing the trial judge's decisions to ensure that the appellant's right to a fair trial was upheld and that the jury was adequately informed to assess the evidence correctly.

The court examined the procedural fairness of the trial, particularly the handling of late witness statements and the warnings issued to the jury regarding the credibility of key witnesses. It was determined that the absence of a voir dire did not disadvantage the appellant, as the statement in question was comprehensive and the trial judge was aware of the defence's needs. Furthermore, the trial judge correctly exercised his discretion in warning the jury about the potential unreliability of the witness Ms Macintyre, given her initial refusal to cooperate and subsequent change of statement. The warnings issued by the trial judge were deemed appropriate, as they highlighted the witness's involvement in the aftermath of the crime and the potential for her to have lied, thereby ensuring the jury was fully informed to make a balanced assessment of her testimony.

Following a thorough review of the evidence and the trial judge's handling of the case, the High Court found that the trial was conducted fairly, and there was no miscarriage of justice. The appeal against the conviction was dismissed, affirming the original findings of the trial judge. The court concluded that the appellant had not demonstrated any error in the trial process that warranted a reversal of his conviction.

Orders

Orders of the court

Appeal against conviction dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

It is not apparent that there was any significant disadvantage to the appellant from the absence of a voir dire. No valid grounds were foreshadowed upon which Ms Macintyre's evidence could have been excluded. The only basis of objection now relied upon would seem to be the loss of a "trial run" of cross-examination. Sometimes it is appropriate to permit this when a late witness emerges, but there is no general rule that it is necessary. Such an issue is one which is very much within the control of the trial judge[1]. The learned trial judge was fully cognisant of the need to consider the reasonable needs of the defence, observing that "in some instances counsel would be at a disadvantage … however here the statement is very full and there are a number of indications why the statement was obtained late". His Honour added that "there does not seem to be any traps into which counsel might walk because of being disadvantaged through not having cross-examined the witness at committal". I respectfully agree. [1] R v Drozd (1993) 67 A Crim R 112, 113 per Macrossan CJ. Compare R v Rowley (1986) 23 A Crim R 371 at 379-380 per Beach J. Warnings concerning evidence of Ms Macintyre and Mr Braid His Honour correctly regarded Ms Macintyre as a witness in respect of whom a warning should be given, notwithstanding the removal of s 632 of the Code of any statutory necessity to do so. His Honour's instructions to the jury concerning her evidence included the following: "… she initially said she had gone to sleep and knew nothing but then having received what has been called an indemnity from the Attorney-General, she has come along and given you a very full account that clearly implicates the accused in the crime with which he is alleged (sic). Now it is most important you assess her evidence very carefully. She doesn't just come along to you as an eyewitness who never wanted to be involved but who saw something and tells you about it. She is a person who helps, on her own evidence, clean up after the offence. She then runs off with the man she says has committed the crime. So you need to asses her evidence very carefully because of her initial statement which she now recognises as a lie and with her close involvement with the accused. I would remind you that the Attorney-General's indemnity includes the words that she won't be prosecuted for any offence that she may admit here other than proceedings in respect of the falsity of any evidence she gave to you. So if she lied to you, she could be prosecuted for perjury and that is a restraint upon her that certainly wasn't there when she first spoke to the police. So that is something to keep in mind when you are assessing her evidence. Now here where you have no direct evidence of an eyewitness as to the stabbing and slashing of Bill Nauta, you need to bring together all of the evidence carefully. So that you need to assess which evidence you rely on, which evidence you accept and that involves a very careful scrutiny of the witnesses who were involved on the 29th of September. Those at the Blue Gem Caravan Park and Macintyre and Braid who say they were at Twin Dams when the incident occurred".

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Lovelock [1999] QCA 501
PARTIES:	R v LOVELOCK, Edward Richard (Appellant)
FILE NO/S:	CA No 167 of 1999 SC No 18 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	3 December 1999
DELIVERED AT:	Brisbane
HEARING DATE:	25 November 1999
JUDGES:	Pincus and Thomas JJA and Helman J Separate reasons for judgment of each member of the Court, concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – SUMMING UP
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS
Murder – indemnified witness – whether warnings adequate – degree of emphasis required from trial judge – relevant factors
CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – VOIR DIRE – calling of witness not called at committal – whether voir dire necessary to enable cross examination to occur
COUNSEL:	Mr J Hunter for the appellant