Court of Appeal (Qld)|2002-05-17|Before: de Jersey CJ, McMurdo P and Atkinson JSeparate, reasons for judgment of each member of the Court, each concurring as to the, order made.
de Jersey CJ, McMurdo P and Atkinson JSeparate, reasons for judgment of each member of the Court, each concurring as to the, order made.
Catchwords
CRIMINAL LAW – CRIMINAL LIABILITY AND CAPACITY – MENS REA -
PROOF AND EVIDENCE – CIRCUMSTANTIAL EVIDENCE - where
the character of the
Crown case was circumstantial – where it was based on the contention that
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – CRIMINAL LIABILITY AND CAPACITY – MENS REA -PROOF AND EVIDENCE – CIRCUMSTANTIAL EVIDENCE - wherethe character of theCrown case was circumstantial – where it was based on the contention thatthe appellant doctor killedthe deceased, his patient, by injecting her with avery large dose of morphine – where his motivation was to avoid herpursuinga complaint against him of professional misconduct - where appellantknew of complaints by the victim accusing him of professionalmisconductCRIMINAL LAW - PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON– HOMICIDE – MURDER – GENERALLYCRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – OBJECTIONS AND POINTSNOT RAISED IN THECOURT BELOW – IMPROPER ADMISSION OR REJECTION OF EVIDENCECRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OREXCLUDE EVIDENCE – GENERALLY – where similar factevidence of the
appellant’s sexual abuse of patients was admitted into evidence at trial
– where that evidence established
propensity of the appellant to drug and
sexually assault female patients – whether that evidence should have been
admitted
or whether it was left to the jury on too broad a basis
EVIDENCE – ADMISSIBILITY AND RELEVANCY - HEARSAY – IN GENERAL
– RELEVANT PRINCIPLES - where unidentified Asian
female telephoned to
complain about being drugged by the appellant - whether this evidence could be
brought into evidence within
the exceptions to the hearsay rule as involving a
representation of the drugging of the victim by the appellant expressed by
someone
on behalf of the victim – whether representations include implied
and inferred representations – whether it could be
inferred that the
deceased was present when the telephone call was made – where the
admission of technically inadmissible evidence,
not objected to for rational
forensic reasons could result in the quashing of a conviction – where even
if the evidence was
considered inadmissible, there was no substantial
miscarriage of justice such as to invalidate the conviction
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONCITION
– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE
– TESTS
– WHETHER JURY WOULD HAVE RETURNED SAME VERDICT – IMPROPER ADMISSION
OR REJECTION OF EVIDENCE
Criminal Code (Qld), s 592A, s 688EEvidence Act 1977
(Qld), s 93B, s 93CEvidence Act 1995 (NSW), s 65Evidence Act
1995 (Cth), s 65
Conway v R [2000] FCA 461
(2000) 172 ALR 185, referred tode Jesus v R
[1986] HCA 65
(1997) 61 ALJR 1, appliedFesta v R (2001) 76 ALJR 29, referred
toM v The Queen [1994] HCA 63
(1994) 181 CLR 487, appliedPfennig v R
[1995] HCA 7
(1995) 182 CLR 461, appliedR v Mankotia [1998] NSWSC 295, 27 July
1998, referred toR v McGrane: file no. s 619 of 2000, 10 May 2001 per
Mullins J, referred toR v McIntyre [2002] NSWCCA 29, referred to
R v O’Keeffe [2001] 1 QdR 564, appliedR v
Serratore [1999] NSWCCA 377
(1999) 48 NSWLR 101, referred toShepherd v R [1990] HCA 56
(1990) 170
CLR 573, appliedSuresh v R (1998) 72 ALJR 869, appliedWilde v
R [1988] HCA 6
(1988) 164 CLR 365, referred to
Judgment (17 paragraphs)
[1]
CRIMINAL LAW - CRIMINAL LIABILITY AND CAPACITY - MENS REA - PROOF AND EVIDENCE - CIRCUMSTANTIAL EVIDENCE - where the character of the Crown case was circumstantial - where it was based on the contention that the appellant doctor killed the deceased, his patient, by injecting her with a very large dose of morphine - where his motivation was to avoid her pursuing a complaint against him of professional misconduct - where appellant knew of complaints by the victim accusing him of professional misconduct CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - GENERALLY CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OBJECTIONS AND POINTS NOT RAISED IN THE COURT BELOW - IMPROPER ADMISSION OR REJECTION OF EVIDENCE CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - GENERALLY - where similar fact evidence of the appellant's sexual abuse of patients was admitted into evidence at trial - where that evidence established propensity of the appellant to drug and sexually assault female patients - whether that evidence should have been admitted or whether it was left to the jury on too broad a basis EVIDENCE - ADMISSIBILITY AND RELEVANCY - HEARSAY - IN GENERAL - RELEVANT PRINCIPLES - where unidentified Asian female telephoned to complain about being drugged by the appellant - whether this evidence could be brought into evidence within the exceptions to the hearsay rule as involving a representation of the drugging of the victim by the appellant expressed by someone on behalf of the victim - whether representations include implied and inferred representations - whether it could be inferred that the deceased was present when the telephone call was made - where the admission of technically inadmissible evidence, not objected to for rational forensic reasons could result in the quashing of a conviction - where even if the evidence was considered inadmissible, there was no substantial miscarriage of justice such as to invalidate the conviction CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONCITION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - TESTS - WHETHER JURY WOULD HAVE RETURNED SAME VERDICT - IMPROPER ADMISSION OR REJECTION OF EVIDENCE Criminal Code (Qld), s 592A, s 688E