R v LT

Case [2006] QCA 534 12 December 2006

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SUPREME COURT OF QUEENSLAND

CITATION:

R v LT [2006] QCA 534

PARTIES:

R
v
LT
(appellant)

FILE NO/S:

CA No 227 of 2006
DC No 2057 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

12 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2006

JUDGES:

McMurdo P, Keane JA and Chesterman J
Judgment of the Court

ORDER:

1.Appeal allowed
2. Convictions set aside
3. New trial ordered on all counts

CATCHWORDS:

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PROSECUTION - FILING OF INDICTMENT - QUEENSLAND - appellant convicted upon verdict of jury of five counts of indecent dealing and two counts of rape - appellant sentenced to eight years imprisonment for rape offences and five years imprisonment for indecent dealing offences - trial began in Toowoomba but jury discharged and matter transferred to Brisbane - difference in charges on which appellant was tried in Brisbane compared with those on which appellant's trial in Toowoomba had proceeded - appellant appeals on basis that indictment on which appellant was convicted was only presented after jury had given its verdict - confusion over which indictment the appellant was being tried upon - nature of indictment - procedural irregularity - procedural fairness - whether appellant was convicted according to law - whether trial took place upon an indictment containing charges on which appellant was to be tried

Criminal Code 1899 (Qld), s 560, s 563(1), s 567, s 572, s 592,
s 597C, s 604
Jury Act 1995 (Qld), s 60, s 62

Cth DPP v Fukusato [2002] QCA 20; Appeal No 6456 of 2001, 8 February 2002, cited
De Jesus v The Queen (1986) 61 ALJR 1, cited
Maher v The Queen (1987) 163 CLR 221, followed
R v Cockrell; ex parte Cth DPP [2005] QCA 59; CA No 325 of 2004, 11 March 2005, cited
R v Dexter [2002] QCA 540; CA No 135 of 2001, 10 December 2002, cited
R v Fahey, Solomon and AD [2001] QCA 82; CA Nos 295, 305, 345 of 2000, 9 March 2001, considered
R v Foley [2002] QCA 522; Appeal No 4007 of 2002, 29 November 2002, cited
R v Phillips & Lawrence [1967] Qd R 237, cited
R v Sheehy, unreported, Maryborough Indictment No 129 of 2001, 30 July 2002, cited
R v Webb [1960] Qd R 443, cited
Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444, applied

COUNSEL:

P J Callaghan SC for the appellant
M J Copley for the respondent

SOLICITORS:

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

THE COURT: On 4 August 2006, the appellant was convicted upon the verdict of a jury of five counts of indecent dealing and two counts of rape. He was sentenced to five years imprisonment for the indecent dealing offences, and to eight years imprisonment for the offences of rape. The sentences were…

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 LT

Details

AGLC: R v LT [2006] QCA 534
Case: [2006] QCA 534
Decision Date: 12 December 2006

CaseChat Overview and Summary

The appellant was convicted on five counts of indecent dealing and two counts of rape. The appellant appealed against the conviction on the basis that the indictment on which the appellant was convicted was only presented after the jury had given its verdict. The appeal was heard in the Queensland Court of Appeal. The legal issues in the case centred around the procedural fairness of the trial and whether the appellant was convicted according to law. The court had to consider whether the trial took place on an indictment containing the charges on which the appellant was to be tried and whether there was a procedural irregularity.

The court examined the provisions of the Criminal Code 1899 (Qld) and the Jury Act 1995 (Qld) to determine the nature of the indictment and whether the appellant was tried upon it. The court considered relevant case law including Maher v The Queen, R v Phillips & Lawrence and Weiss v The Queen. The court found that the presentation of the indictment after the jury had given its verdict was a procedural irregularity that deprived the appellant of procedural fairness. The court concluded that the appellant was not convicted according to law and that the trial did not take place on an indictment containing the charges on which the appellant was to be tried.

The appeal was allowed, the convictions were set aside and a new trial was ordered on all counts. The court emphasised the importance of procedural fairness in criminal trials and the need to ensure that the accused is tried upon an indictment containing the charges on which they are to be tried. The decision serves as a reminder to prosecutors to ensure that indictments are properly prepared and presented before the trial commences.

Orders

Orders of the court

1.Appeal allowed

2. Convictions set aside

3. New trial ordered on all counts

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v LT [2006] QCA 534

Most Recent Citation

R v WAH [2009] QCA 263

Cases Citing This Decision

R v BDT [2022] QCA 152
Citation 1 (Para 6)

…trial was founded on a document which was not the indictment and therefore did not comply with s 560 of the Code . The appellant relies on R v LT [2006] QCA 534 at [27]-[29] to submit that s 560 is a provision of fundamental importance, as it is the legislative authority for the executive to bring serious charges…
R v Cockrell [2015] QCA 73
Citation 2 (Para 16)

…me aware of the significance of this finding until some years later”, i.e. some years after 12 December 2006 when R v LT was handed down.[27] [26][2006] QCA 534. ( R v LT ). [27]Outline filed 15 January 2015, page 2, 6 th dot point. ( Affidavit 2 ).…
Pogadaev v Thomson [2013] QDC 74
Citation 3 (Para 1)

…] I note that the respondent does not disagree with that approach and in my view it is an appropriate order to make in the circumstances. [32] R v LT [2006] QCA 534 at [39].…
Moss v Commissioner of Police [2013] QDC 73
Citation 4 (Para 1)

…resided over by another Magistrate, thus ensuring that justice is ‘seen to be done’.[14] [13]To Tomasevic v Trovaglini [2007] VSC 337 [14] R v LT [2006] QCA 534 at [39]…
Partridge v The Queen [2012] QDC 284
Citation 5 (Para 1)

…51 ( Ex officio indictments ) - it could not have been because it charged offences which had been the subject of committal for trial.[11] [10] R v LT [2006] QCA 534 [11] R v Foley [2003] 2 Qd R 88 – the prosecution did not argue that Foley stands as authority only for the proposition that s. 561 does not permit t…
R v Tapara [2010] QCA 320
Citation 6

…ry Act 1995 (Qld), s 56(1)(c) R v Eade [2005] QCA 148, cited R v LT [2006] QCA 534, cited R v Nielsen [2006] QCA 2, considered COUNSEL: The appellant appeared on his own behalf D Meredith for the respondent SOLICITORS: The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the r…
R v WAH [2009] QCA 263
Citation 7 (Para 1)

…d which was received at that trial with the tacit agreement of his counsel. [9]Cf Abdul Rahman v The King-Emperor (1926) 54 LR Ind App 96 at 104. [10][2006] QCA 534.…

See all citing cases →

Cases Cited

Weiss v The Queen [2005] HCA 81
Citation 1 (Para 1)

…ns, this Court should refuse leave to amend the Toowoomba indictment to add count 9. [8]Cf R v Phillips & Lawrence [1967] Qd R 237 at 277 – 279. [9][2005] HCA 81; (2005) 80 ALJR 444 at 455 [46].…
R v Cockrell [2005] QCA 59
Citation 2

…01, 8 February 2002, cited De Jesus v The Queen (1986) 61 ALJR 1, cited Maher v The Queen (1987) 163 CLR 221, followed R v Cockrell; ex parte Cth DPP [2005] QCA 59; CA No 325 of 2004, 11 March 2005, cited R v Dexter [2002] QCA 540; CA No 135 of 2001, 10 December 2002, cited R v Fahey, Solomon and AD [2001] QCA 8…
R v Dexter [2002] QCA 540
Citation 3 (Para 1)

….[2] [2] R v Webb [1960] Qd R 443 at 446 – 447; Cth DPP v Fukusato [2002] QCA 20 at [96]; R v Foley [2002] QCA 522 at [10] – [12]; R v Dexter [2002] QCA 540 at [66] – [68], [81].…
R v Foley [2002] QCA 522
Citation 4 (Para 1)

…ose historically performed by the grand jury.[2] [2] R v Webb [1960] Qd R 443 at 446 – 447; Cth DPP v Fukusato [2002] QCA 20 at [96]; R v Foley [2002] QCA 522 at [10] – [12]; R v Dexter [2002] QCA 540 at [66] – [68], [81].…
R v Fukusato [2002] QCA 20
Citation 5 (Para 1)

…erform functions which include those historically performed by the grand jury.[2] [2] R v Webb [1960] Qd R 443 at 446 – 447; Cth DPP v Fukusato [2002] QCA 20 at [96]; R v Foley [2002] QCA 522 at [10] – [12]; R v Dexter [2002] QCA 540 at [66] – [68], [81].…
R v Fahey & Ors [2001] QCA 82
Citation 6

…2005] QCA 59; CA No 325 of 2004, 11 March 2005, cited R v Dexter [2002] QCA 540; CA No 135 of 2001, 10 December 2002, cited R v Fahey, Solomon and AD [2001] QCA 82; CA Nos 295, 305, 345 of 2000, 9 March 2001, considered R v Foley [2002] QCA 522; Appeal No 4007 of 2002, 29 November 2002, cited R v Phillips & Lawr…
Maher v The Queen [1987] HCA 31
Citation 7

…s 62 Cth DPP v Fukusato [2002] QCA 20; Appeal No 6456 of 2001, 8 February 2002, cited De Jesus v The Queen (1986) 61 ALJR 1, cited Maher v The Queen (1987) 163 CLR 221, followed R v Cockrell; ex parte Cth DPP [2005] QCA 59; CA No 325 of 2004, 11 March 2005, cited R v Dexter [2002] QCA 540; CA No 135 of 2001, 10 Dece…
De Jesus v The Queen [1986] HCA 65
Citation 8

…, s 567, s 572, s 592, s 597C, s 604 Jury Act 1995 (Qld), s 60, s 62 Cth DPP v Fukusato [2002] QCA 20; Appeal No 6456 of 2001, 8 February 2002, cited De Jesus v The Queen (1986) 61 ALJR 1, cited Maher v The Queen (1987) 163 CLR 221, followed R v Cockrell; ex parte Cth DPP [2005] QCA 59; CA No 325 of 2004, 11 March 2005, cited…
[1921] 2 AC 299 [1921] 2 AC 299
Citation 9

…rovisions may render a trial a nullity, at least in the sense that the conviction produced cannot withstand an appeal: see Crane v Public Prosecutor ([1921] 2 AC 299). In any event it involves such a miscarriage of justice as to require the conviction to be set aside."…

Legislation Cited

Jury Act 1995 (Qld) 60
2 mentions (from Para 1)

CITATION:	R v LT [2006] QCA 534
PARTIES:	R v LT (appellant)
FILE NO/S:	CA No 227 of 2006 DC No 2057 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	12 December 2006
DELIVERED AT:	Brisbane
HEARING DATE:	23 November 2006
JUDGES:	McMurdo P, Keane JA and Chesterman J Judgment of the Court
ORDER:	1.Appeal allowed 2. Convictions set aside 3. New trial ordered on all counts
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PROSECUTION - FILING OF INDICTMENT - QUEENSLAND - appellant convicted upon verdict of jury of five counts of indecent dealing and two counts of rape - appellant sentenced to eight years imprisonment for rape offences and five years imprisonment for indecent dealing offences - trial began in Toowoomba but jury discharged and matter transferred to Brisbane - difference in charges on which appellant was tried in Brisbane compared with those on which appellant's trial in Toowoomba had proceeded - appellant appeals on basis that indictment on which appellant was convicted was only presented after jury had given its verdict - confusion over which indictment the appellant was being tried upon - nature of indictment - procedural irregularity - procedural fairness - whether appellant was convicted according to law - whether trial took place upon an indictment containing charges on which appellant was to be tried Criminal Code 1899 (Qld), s 560, s 563(1), s 567, s 572, s 592, s 597C, s 604 Jury Act 1995 (Qld), s 60, s 62 Cth DPP v Fukusato [2002] QCA 20; Appeal No 6456 of 2001, 8 February 2002, cited De Jesus v The Queen (1986) 61 ALJR 1, cited Maher v The Queen (1987) 163 CLR 221, followed R v Cockrell; ex parte Cth DPP [2005] QCA 59; CA No 325 of 2004, 11 March 2005, cited R v Dexter [2002] QCA 540; CA No 135 of 2001, 10 December 2002, cited R v Fahey, Solomon and AD [2001] QCA 82; CA Nos 295, 305, 345 of 2000, 9 March 2001, considered R v Foley [2002] QCA 522; Appeal No 4007 of 2002, 29 November 2002, cited R v Phillips & Lawrence [1967] Qd R 237, cited R v Sheehy, unreported, Maryborough Indictment No 129 of 2001, 30 July 2002, cited R v Webb [1960] Qd R 443, cited Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444, applied
COUNSEL:	P J Callaghan SC for the appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent