R v Ross - [2010] QCA 63

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ross [2010] QCA 63

PARTIES:

R
v
ROSS, Jeffrey John
(applicant/appellant)

FILE NO/S:

CA No 214 of 2009
DC No 277 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

23 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2010

JUDGES:

Holmes and Fraser JJA and P Lyons 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 refused.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was convicted of unlawfully doing grievous bodily harm – where the appellant challenged the admissibility of evidence upon which the Crown relied to prove the complainant suffered injuries amounting to grievous bodily harm – where the doctor’s opinion evidence was premised on foundational facts contained in medical notes – whether the trial judge erred in determining that a doctor was qualified to give expert evidence – whether the doctor’s opinion evidence was inadmissible

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – in circumstances where defence counsel did not object to the doctor’s evidence of the content of the medical notes – where defence counsel may have conducted the trial in that way for forensic advantage – where the trial judge gave appropriate directions about the quality of the evidence – where there was no ground for concluding that the doctor’s evidence was inaccurate – whether the receipt of the inadmissible evidence occasioned a miscarriage of justice in terms of s 668E(1) Criminal Code 1899 (Qld)

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant gathered the group of men together and transported some of them to the site of the assault – where the appellant had no criminal history of violent offences, his involvement was not aggravated and the trial judge accepted that he had the least involvement – whether the sentence imposed was manifestly excessive

Criminal Code1899 (Qld), s 1, s 7(1)(c), s 668E(1)
Evidence Act 1977 (Qld), s 93(1)(b)(ii), s 93B

Ali v The Queen (2005) 79 ALJR 662; [2005] HCA 8, cited
Gordon v R (1982) 41 ALR 64, cited
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, cited
Nudd v R (2006) 225 ALR 161; [2006] HCA 9, cited
R v F (1995) 83 A Crim Rep 502, cited
R v Naidu[2008] QCA 130, cited
R v Ping [2006] 2 Qd R 69; [2005] QCA 472, cited
R v S (2002) 129 A Crim R 339; [2002] QCA 167

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 Ross

Details

AGLC: R v Ross [2010] QCA 63
Case: [2010] QCA 63
Decision Date: 23 March 2010

CaseChat Overview and Summary

In the case of R v Ross, the appellant contested his conviction for unlawfully inflicting grievous bodily harm. The core issue revolved around the admissibility of expert medical evidence, which the Crown relied upon to substantiate the extent of the complainant's injuries. The appellant argued that the doctor's opinion, which was based on foundational facts in medical notes, should not have been admitted as it did not meet the necessary criteria for expert testimony. Additionally, the appellant challenged the trial judge's determination that the doctor was qualified to provide such evidence.

The court examined whether the trial judge erred in accepting the doctor's qualifications and the admissibility of the opinion evidence. The court noted that the defence counsel did not object to the doctor's testimony regarding the medical notes, potentially for strategic reasons. Despite this, the trial judge had provided appropriate directions about the quality of the evidence, and there was no indication that the doctor's evidence was inaccurate. The court concluded that the admission of the evidence did not lead to a miscarriage of justice, as per section 668E(1) of the Criminal Code 1899 (Qld).

Regarding the sentence, the appellant argued that it was manifestly excessive given his minimal involvement in the incident. The court considered that the appellant had no prior history of violent offences and his role was acknowledged as the least significant by the trial judge. However, the court found no grounds to interfere with the sentence imposed, maintaining that it was appropriate given the circumstances.

The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was also refused.

Orders

Orders of the court

1. Appeal against conviction dismissed;

2. Application for leave to appeal against sentence refused.

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.

CITATION:	R v Ross [2010] QCA 63
PARTIES:	R v ROSS, Jeffrey John (applicant/appellant)
FILE NO/S:	CA No 214 of 2009 DC No 277 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	23 March 2010
DELIVERED AT:	Brisbane
HEARING DATE:	4 March 2010
JUDGES:	Holmes and Fraser JJA and P Lyons 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 refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was convicted of unlawfully doing grievous bodily harm – where the appellant challenged the admissibility of evidence upon which the Crown relied to prove the complainant suffered injuries amounting to grievous bodily harm – where the doctor’s opinion evidence was premised on foundational facts contained in medical notes – whether the trial judge erred in determining that a doctor was qualified to give expert evidence – whether the doctor’s opinion evidence was inadmissible CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – in circumstances where defence counsel did not object to the doctor’s evidence of the content of the medical notes – where defence counsel may have conducted the trial in that way for forensic advantage – where the trial judge gave appropriate directions about the quality of the evidence – where there was no ground for concluding that the doctor’s evidence was inaccurate – whether the receipt of the inadmissible evidence occasioned a miscarriage of justice in terms of s 668E(1) Criminal Code 1899 (Qld) CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant gathered the group of men together and transported some of them to the site of the assault – where the appellant had no criminal history of violent offences, his involvement was not aggravated and the trial judge accepted that he had the least involvement – whether the sentence imposed was manifestly excessive Criminal Code1899 (Qld), s 1, s 7(1)(c), s 668E(1) Evidence Act 1977 (Qld), s 93(1)(b)(ii), s 93B Ali v The Queen (2005) 79 ALJR 662; [2005] HCA 8, cited Gordon v R (1982) 41 ALR 64, cited Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, cited Nudd v R (2006) 225 ALR 161; [2006] HCA 9, cited R v F (1995) 83 A Crim Rep 502, cited R v Naidu[2008] QCA 130, cited R v Ping [2006] 2 Qd R 69; [2005] QCA 472, cited R v S (2002) 129 A Crim R 339; [2002] QCA 167