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R v Lumley

R v Lumley

Case [2004] QCA 120 23 April 2004

Appeal

Unreasonable or Insupportable Verdict

Miscarriage of Justice

Fresh Evidence

Compensatory Damages

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Lumley [2004] QCA 120

PARTIES:

R
v
LUMLEY, Christopher Edmonston Ferneaux
(appellant/applicant)

FILE NO/S:

CA No 127 of 2003
DC No 324 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

23 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

19 March 2004

JUDGES:

McMurdo P, Williams JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Appeal against conviction dismissed

2.    Application for leave to appeal against sentence granted

3.    Appeal allowed to the extent of omitting the declaration that each offence is a serious violent offence under s 161B(3) Penalties and Sentences Act 1992 (Qld)

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where appellant/applicant convicted of one count of rape (penetration of anus by a cane) and one count of torture, but found not guilty of another count of rape (penetration of vagina by a cane) – where appellant/ applicant's case was that he had inserted cane into complainant's vagina either with her consent or he honestly and reasonably believed she was consenting, but that he had not inserted cane into her anus – where fresh complaint of insertion of cane into anus – whether there was a reasonable basis upon which jury could find appellant/applicant guilty of one count of rape and not guilty of the other when they were part of same series of events

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – CONDUCT OF LEGAL PRACTITIONERS – where appellant/applicant alleged lawyers failed to present evidence as instructed – where appellant/applicant alleged lawyers failed to follow instructions that he wished to give evidence – where appellant/applicant alleged lawyers failed to advise him to enable him to make an informed decision about whether or not to give evidence – whether constituted miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL; MATERIALITY AND COGENCY – GENERALLY – where evidence of anal spasm suffered by complainant important to prosecution case at trial – where uncontradicted by defence evidence – where application to adduce fresh evidence on appeal as to other possible causes of anal spasm – where evidence available at time of trial – whether appellant/applicant deprived of chance of acquittal fairly open to him – whether application should be allowed

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where appellant/applicant sentenced to eight years imprisonment with a declaration that he was convicted of a…

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 Lumley

Details

AGLC: R v Lumley [2004] QCA 120
Case: [2004] QCA 120
Decision Date: 23 April 2004

CaseChat Overview and Summary

The appeal in R v Lumley involved the appellant, who was convicted of one count of rape involving anal penetration by a cane and one count of torture, but acquitted on another count of rape involving vaginal penetration by a cane. The appellant claimed that he either had consent or a reasonable belief of consent for the vaginal penetration, and denied any anal penetration. The appeal raised issues about the reasonableness of the verdict, the conduct of the legal practitioners, and the availability of fresh evidence. The appeal also contested the severity of the sentence.

The court had to decide whether the jury's verdict was reasonable given the evidence presented. It also had to assess whether the legal representation met the required standards, particularly in terms of presenting evidence and advising the appellant on testifying. Lastly, the court needed to consider whether the appellant was deprived of a fair opportunity for acquittal due to fresh evidence regarding the complainant's anal spasm.

The court dismissed the appeal against the conviction, finding the verdict reasonable given the evidence. It concluded that the legal practitioners' conduct did not amount to a miscarriage of justice. However, the court granted the application to adduce fresh evidence, ruling that the appellant was deprived of a fair chance of acquittal. Regarding the sentence, the court found the overall sentence not manifestly excessive but ruled that the declaration of serious violent offence should not apply to each count individually.

The court's final orders were to dismiss the appeal against the conviction, grant leave for an appeal against the sentence, and allow the appeal to the extent of omitting the declaration that each offence was a serious violent offence under the relevant legislation.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence granted

3. Appeal allowed to the extent of omitting the declaration that each offence is a serious violent offence under s 161B(3) Penalties and Sentences Act 1992 (Qld)

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.

Citations

AGLC Citation

R v Lumley [2004] QCA 120

Most Recent Citation

Ramlagun v the Queen [2015] VSCA 337

Cases citing this decision · 6 of 6 shown

Ramlagun v the Queen
[2015] VSCA 337

…uct of a trial: see, eg, R v Calis [2013] QCA 165 [21], Powell v Chief Executive Officer of Customs [2012] QCA 338 [55]–[56] and R v Lumley [2004] QCA 120 [69] and [70].…
R v Lumley
[2009] QCA 172

…ion but upheld his appeal against sentence to the extent of omitting the declaration that the offences were serious, violent offences. See R v Lumley [2004] QCA 120.…
Lumley v. Crime and Misconduct Commission
[2009] QCA 79 Para 1

…r applications for an extension of time in which to appeal against his convictions and to adduce evidence before the Court.[4] [2] R v Lumley [2004] QCA 120. [3] Lumley v The Queen [2005] HCATrans 174 (21 March 2005). [4] R v Lumley [2008] QCA 155. Those applications were dismissed on the ground that the Court’s…
Lumley v. The Police Commissioner
[2009] QCA 78 Para 1

…were considered in that appeal are identified in my reasons in Lumley v Crime and Misconduct Commission Queensland [2009] QCA 79. [3] R v Lumley [2004] QCA 120. [4] Lumley v The Queen [2005] HCATrans 174 (21 March 2005). [5] R v Lumley [2008] QCA 155. Those applications were dismissed on the ground that the Cour…
R v Lumley
[2008] QCA 155

…nst conviction and allowed his appeal against sentence to the extent of removing serious violent offence declarations in R v Lumley [2004] QCA 120 – applicant now seeks further extension of time to appeal against his conviction – Court of Appeal has no jurisdiction to entertain another appeal – extension would be…
R v TM
[2005] QCA 130 Para 1

…ch represented a condign response from the Courts to the criminal conduct involved in cases of torture), R v Brown (2000) 110 A Crim R 449 and R v CL [2004] QCA 120 are consistent with the sentence of eight years imposed in this case to be served cumulatively with the count of three years for rape. The sentence t…

View all 6 citing cases →

Cases cited in this decision · 10 of 10 shown

R v NE
[2003] QCA 574 Para 1

…jury uncontradicted constitutes a miscarriage of justice: R v N .[8] [8][2003] QCA 505; CA No 77 of 2003, 14 November 2003, [30]. See, however, R v N [2003] QCA 574; CA No 311 of 2003, 19 December 2003.…
R v ND
[2003] QCA 505 Para 1

…time and, second, that the complainant's sworn evidence would be left to the jury uncontradicted constitutes a miscarriage of justice: R v N .[8] [8][2003] QCA 505; CA No 77 of 2003, 14 November 2003, [30]. See, however, R v N [2003] QCA 574; CA No 311 of 2003, 19 December 2003.…
TKWJ v The Queen
[2002] HCA 46

…03] QCA 574; CA No 311 of 2003, 19 December 2003, followed TKWJ v R [2002] HCA 46; (2002) 76 ALJR 1579, followed COUNSEL: T D Martin SC for the appellant/applicant M J Copley for the respondent SOLICITORS: Callaghan Lawyers for the appellant/applicant Director of Public Prosecutions (Queensland) for the responde…
R v Roelandts
[2002] QCA 254 Para 1

…ces are serious violent offences. [14][1994] QCA 437; CA No 268 of 1994, 12 September 1994. [15][1995] QCA 251; CA No 102 of 1995, 27 April 1995. [16][2002] QCA 254; CA No 63 of 2002, 23 July 2002. [17][2000] QCA 201; CA No 399 of 1999, 30 May 2000.…
R v Burns
[2000] QCA 201 Para 1

…; CA No 268 of 1994, 12 September 1994. [15][1995] QCA 251; CA No 102 of 1995, 27 April 1995. [16][2002] QCA 254; CA No 63 of 2002, 23 July 2002. [17][2000] QCA 201; CA No 399 of 1999, 30 May 2000.…
Mackenzie v The Queen
[1996] HCA 35

…1977 (Qld), s 21A Penalties and Sentences Act 1992 (Qld), s 161B(3) Mackenzie v The Queen (1996) 190 CLR 348, considered R v Bojovic [2000] 2 Qd R 183, followed R v N [2003] QCA 505; CA No 77 of 2003, 14 November 2003, considered R v N [2003] QCA 574; CA No 311 of 2003, 19 December 2003, followed TKWJ v R [2002] HCA 46; (2002)…
R v Sorby
[1995] QCA 251 Para 1

…claration made in respect of each count that the offences are serious violent offences. [14][1994] QCA 437; CA No 268 of 1994, 12 September 1994. [15][1995] QCA 251; CA No 102 of 1995, 27 April 1995. [16][2002] QCA 254; CA No 63 of 2002, 23 July 2002. [17][2000] QCA 201; CA No 399 of 1999, 30 May 2000.…
R v Broissand
[1994] QCA 437 Para 1

…allow the appeal to the limited extent of omitting the declaration made in respect of each count that the offences are serious violent offences. [14][1994] QCA 437; CA No 268 of 1994, 12 September 1994. [15][1995] QCA 251; CA No 102 of 1995, 27 April 1995. [16][2002] QCA 254; CA No 63 of 2002, 23 July 2002. [17]…
Mickelberg v The Queen
[1989] HCA 35 Para 1

…y that a reasonable jury would have acquitted the appellant.[11] [11] Gallagher v The Queen (1986) 160 CLR 392, 397, 399, 407; Mickelberg v The Queen (1989) 167 CLR 259, 273, 275, 292, 301-302.…
Gallagher v The Queen
[1986] HCA 26 Para 1

…t trial, there is a significant possibility or it is likely that a reasonable jury would have acquitted the appellant.[11] [11] Gallagher v The Queen (1986) 160 CLR 392, 397, 399, 407; Mickelberg v The Queen (1989) 167 CLR 259, 273, 275, 292, 301-302.…

Legislation cited in this decision · 2

Evidence Act 1977 (Qld)
21A 2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
161B(3) 2 mentions (from Para 1)

CITATION:	R v Lumley [2004] QCA 120
PARTIES:	R v LUMLEY, Christopher Edmonston Ferneaux (appellant/applicant)
FILE NO/S:	CA No 127 of 2003 DC No 324 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	23 April 2004
DELIVERED AT:	Brisbane
HEARING DATE:	19 March 2004
JUDGES:	McMurdo P, Williams JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence granted 3. *Appeal allowed to the extent of omitting the declaration that each offence is a serious violent offence under s 161B(3) Penalties and Sentences Act* 1992 (Qld)**
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where appellant/applicant convicted of one count of rape (penetration of anus by a cane) and one count of torture, but found not guilty of another count of rape (penetration of vagina by a cane) – where appellant/ applicant's case was that he had inserted cane into complainant's vagina either with her consent or he honestly and reasonably believed she was consenting, but that he had not inserted cane into her anus – where fresh complaint of insertion of cane into anus – whether there was a reasonable basis upon which jury could find appellant/applicant guilty of one count of rape and not guilty of the other when they were part of same series of events CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – CONDUCT OF LEGAL PRACTITIONERS – where appellant/applicant alleged lawyers failed to present evidence as instructed – where appellant/applicant alleged lawyers failed to follow instructions that he wished to give evidence – where appellant/applicant alleged lawyers failed to advise him to enable him to make an informed decision about whether or not to give evidence – whether constituted miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL; MATERIALITY AND COGENCY – GENERALLY – where evidence of anal spasm suffered by complainant important to prosecution case at trial – where uncontradicted by defence evidence – where application to adduce fresh evidence on appeal as to other possible causes of anal spasm – where evidence available at time of trial – whether appellant/applicant deprived of chance of acquittal fairly open to him – whether application should be allowed CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – where appellant/applicant sentenced to eight years imprisonment with a declaration that he was convicted of a…