R v Lovett - [2020] QCA 86

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lovett [2020] QCA 86

PARTIES:

R
v
LOVETT, Kylie
(appellant/applicant)

FILE NO/S:

CA No 128 of 2019
DC No 788 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 17 April 2019; Date of Sentence: 18 April 2019 (Allen QC DCJ)

DELIVERED ON:

28 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

25 October 2019

JUDGES:

Morrison and Philippides and McMurdo JJA

ORDERS:

1.   The appeal be allowed.

2.   The conviction be set aside.

3.   A retrial be ordered.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – JURISDICTION – WHERE QUESTION OF EXTRA-TERRITORIALITY RAISED – LOCALITY OF CRIME – where the appellant was charged with an offence of extortion – where demands and threats were made by emails – where it was not established that at least three of the emails were sent by the appellant when she was in Queensland – where this deficiency in the prosecution case was not recognised by anyone before or during the trial – whether the issue of locality had to be raised by the defence case

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – OTHER CASES – where the respondent submitted that there is an unfairness caused by the jurisdiction point not being taken by the appellant at the trial, because the prosecution was denied the opportunity to undertake further investigations – whether the evidence at the trial was sufficient to justify a conviction – whether a new trial should be ordered

Criminal Code (Qld), s 12, s 415

Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8, cited
R v Taufahema (2007) 228 CLR 232; [2007] HCA 11, distinguished
R v WAF & SBN [2010] 1 Qd R 370; [2009] QCA 144, distinguished
Reid v The Queen [1980] AC 343, cited
Thompson v The Queen (1989) 169 CLR 1; [1989] HCA 30, applied

COUNSEL:

D R Wilson for the appellant/applicant
D Balic for the respondent

SOLICITORS:

Stewart Burr and Mayr Lawyers for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I have had the advantage of reading the draft reasons prepared by McMurdo JA. For the reasons he gives, I agree that the appeal must be allowed and the conviction set aside. However, I would order a retrial for the reasons which follow.
The trial concerned the sending of four emails. The first three were on 25 September 2015, 25 February 2016 and 7 March 2016. The last was on 7 April 2017. The evidence adduced by the Crown on the hearing of the appeal consisted of records of the appellant’s arrival into and exit from Australia in the period between 19 March 2015 and 14 November 2016. Those records established that the first three emails were sent at a time when the appellant was not in Australia, but in New Zealand.

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 Lovett

Details

AGLC: R v Lovett [2020] QCA 86
Case: [2020] QCA 86
Decision Date: 28 April 2020

CaseChat Overview and Summary

The case of R v Lovett involved the appellant, Lovett, who was charged with the offence of extortion. The crux of the dispute was whether the trial judge had jurisdiction to hear the case, given that it was not established that the appellant sent at least three of the incriminating emails from within Queensland. This jurisdictional issue stemmed from the necessity to prove that the crime was committed within the court's territorial limits. The High Court of Australia was tasked with resolving this dispute.

The central legal issue before the court was whether the appellant was required to raise the jurisdictional issue of extra-territoriality, or if it could be raised by the prosecution. The court examined whether the appellant's failure to raise this issue during the trial could prevent the prosecution from arguing it post-trial. Furthermore, the court had to determine if the evidence presented at the trial was sufficient to uphold the conviction despite the jurisdictional uncertainty.

In its reasoning, the court held that the jurisdiction of the court was fundamental and could not be waived by the parties. The court found that the prosecution had not sufficiently established that the appellant was in Queensland when she sent the emails, and therefore the court lacked jurisdiction. The court also determined that the respondent's submission regarding unfairness to the prosecution due to the lack of prior objection was not sufficient to uphold the conviction. The evidence, while seemingly strong, was insufficient to overcome the jurisdictional flaw. Consequently, the court concluded that a retrial was necessary to address the jurisdictional issue properly.

The court's final orders were that the appeal be allowed, the conviction be set aside, and a retrial be ordered to ensure that all jurisdictional requirements were met. The decision underscored the importance of jurisdictional precision in criminal proceedings and the court's duty to address such matters sua sponte.

Orders

Orders of the court

1. The appeal be allowed.

2. The conviction be set aside.

3. A retrial be ordered.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Lovett [2020] QCA 86
PARTIES:	R v LOVETT, Kylie (appellant/applicant)
FILE NO/S:	CA No 128 of 2019 DC No 788 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 17 April 2019; Date of Sentence: 18 April 2019 (Allen QC DCJ)
DELIVERED ON:	28 April 2020
DELIVERED AT:	Brisbane
HEARING DATE:	25 October 2019
JUDGES:	Morrison and Philippides and McMurdo JJA
ORDERS:	1. The appeal be allowed. 2. The conviction be set aside. 3. A retrial be ordered.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – JURISDICTION – WHERE QUESTION OF EXTRA-TERRITORIALITY RAISED – LOCALITY OF CRIME – where the appellant was charged with an offence of extortion – where demands and threats were made by emails – where it was not established that at least three of the emails were sent by the appellant when she was in Queensland – where this deficiency in the prosecution case was not recognised by anyone before or during the trial – whether the issue of locality had to be raised by the defence case CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – OTHER CASES – where the respondent submitted that there is an unfairness caused by the jurisdiction point not being taken by the appellant at the trial, because the prosecution was denied the opportunity to undertake further investigations – whether the evidence at the trial was sufficient to justify a conviction – whether a new trial should be ordered Criminal Code (Qld), s 12, s 415 Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8, cited R v Taufahema (2007) 228 CLR 232; [2007] HCA 11, distinguished R v WAF & SBN [2010] 1 Qd R 370; [2009] QCA 144, distinguished Reid v The Queen [1980] AC 343, cited Thompson v The Queen (1989) 169 CLR 1; [1989] HCA 30, applied
COUNSEL:	D R Wilson for the appellant/applicant D Balic for the respondent
SOLICITORS:	Stewart Burr and Mayr Lawyers for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent