R v Lumley

Case [2004] QCA 120


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…

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Details
AGLC
R v Lumley [2004] QCA 120
Case
[2004] QCA 120
Decision Date

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

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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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