Costigan v Marshall - [2010] QCA 344

SUPREME COURT OF QUEENSLAND

CITATION:

Costigan v Marshall [2010] QCA 344

PARTIES:

COSTIGAN, Paul Aliki
(appellant/respondent)
v
MARSHALL, Grant
(respondent/applicant)

FILE NO/S:

CA No 200 of 2010
DC No 8 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Gladstone

DELIVERED ON:

Orders delivered ex tempore on 26 November 2010
Reasons delivered on 10 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

26 November 2010

JUDGES:

Muir and Chesterman JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 26 November 2010:

1. Leave to appeal be granted.
2. The appeal be allowed.

3. The order be varied only to the extent that the order vacating the guilty plea be set aside.

4. The applicant pay the respondent’s costs to be assessed on the standard basis.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where the respondent entered a plea of guilty in the Magistrates Court to a charge of dangerous operation of a vehicle whilst adversely affected by an intoxicating substance – where the respondent filed a notice of appeal pursuant to s 222 of the Justices Act 1886 (Qld) asserting that the sentence imposed was manifestly excessive – where District Court judge concluded that the basis of the plea was unclear and ordered that the respondent’s plea of guilty be vacated – where applicant applied for leave to appeal under s 118 District Court of Queensland Act 1967 (Qld) – whether the applicant should be granted leave to appeal – whether the District Court judge erred in vacating the plea of guilty

District Court of Queensland Act 1967 (Qld), s 118
Justices Act 1886 (Qld), s 222

Ajax v Bird [2010] QCA 2, applied
Long v Spivey [2004] QCA 118, cited
Smith v Ash[2010] QCA 112, applied

COUNSEL:

M B Lehane for the applicant
L K Ackerman for the respondent

SOLICITORS:

Director of Public Prosecutions (Qld) for the applicant
Robertson O’Gorman for the respondent

MUIR JA: I agree with the reasons of Philippides J.

CHESTERMAN JA: I agree with the reasons of Philippides J.

PHILIPPIDES J:

Background

On 29 April 2010, the respondent entered a plea of guilty in the Gladstone Magistrates Court to a charge of dangerous operation of a vehicle whilst adversely affected by an intoxicating substance. He was sentenced to 12 months’ imprisonment suspended after three months for an operational period of two years. The respondent was also disqualified from holding or obtaining a driver’s licence for two years.

The respondent filed a notice of appeal pursuant to s 222 of the Justices Act 1886 (Qld) asserting that the sentence imposed was manifestly excessive in all of the circumstances. That remained the sole ground pursued by the respondent when the matter came before the District Court judge on 28 July 2010. It was the…

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 Costigan v Marshall

Details

AGLC: Costigan v Marshall [2010] QCA 344
Case: [2010] QCA 344
Decision Date: 26 November 2010

CaseChat Overview and Summary

In Costigan v Marshall, the applicant, Costigan, sought leave to appeal against the decision of a District Court judge who had vacated the respondent's, Marshall, guilty plea in the Magistrates Court to a charge of dangerous operation of a vehicle while adversely affected by an intoxicating substance. The appeal concerned whether the applicant should be granted leave to appeal and whether the District Court judge was correct in vacating the plea of guilty.

The central legal issue was whether the District Court judge had erred in concluding that the basis of the plea was unclear. The applicant argued that the judge's decision to vacate the plea was inappropriate given that the plea was entered into knowingly and voluntarily, and that there was no evidence to suggest that the plea was not properly advised. The applicant also contended that the sentence imposed was not manifestly excessive and that the appeal should not have been allowed on that basis.

The court found that the District Court judge had erred in concluding that the basis of the plea was unclear. The court held that the plea was entered into knowingly and voluntarily and that there was no evidence to suggest that the plea was not properly advised. The court also held that the sentence imposed was not manifestly excessive and that the appeal should not have been allowed on that basis. Accordingly, the court granted the applicant leave to appeal and allowed the appeal, setting aside the order vacating the guilty plea. The applicant was ordered to pay the respondent's costs to be assessed on the standard basis.

Orders

Orders of the court

Delivered ex tempore on 26 November 2010:

1. Leave to appeal be granted.

2. The appeal be allowed.

3. The order be varied only to the extent that the order vacating the guilty plea be set aside.

4. The applicant pay the respondent’s costs to be assessed on the standard basis.

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:	Costigan v Marshall [2010] QCA 344
PARTIES:	COSTIGAN, Paul Aliki (appellant/respondent) v MARSHALL, Grant (respondent/applicant)
FILE NO/S:	CA No 200 of 2010 DC No 8 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Gladstone
DELIVERED ON:	Orders delivered ex tempore on 26 November 2010 Reasons delivered on 10 December 2010
DELIVERED AT:	Brisbane
HEARING DATE:	26 November 2010
JUDGES:	Muir and Chesterman JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 26 November 2010: 1. Leave to appeal be granted. 2. The appeal be allowed. 3. The order be varied only to the extent that the order vacating the guilty plea be set aside. 4. The applicant pay the respondent’s costs to be assessed on the standard basis.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where the respondent entered a plea of guilty in the Magistrates Court to a charge of dangerous operation of a vehicle whilst adversely affected by an intoxicating substance – where the respondent filed a notice of appeal pursuant to s 222 of the Justices Act 1886 (Qld) asserting that the sentence imposed was manifestly excessive – where District Court judge concluded that the basis of the plea was unclear and ordered that the respondent’s plea of guilty be vacated – where applicant applied for leave to appeal under s 118 District Court of Queensland Act 1967 (Qld) – whether the applicant should be granted leave to appeal – whether the District Court judge erred in vacating the plea of guilty District Court of Queensland Act 1967 (Qld), s 118 Justices Act 1886 (Qld), s 222 Ajax v Bird [2010] QCA 2, applied Long v Spivey [2004] QCA 118, cited Smith v Ash[2010] QCA 112, applied
COUNSEL:	M B Lehane for the applicant L K Ackerman for the respondent
SOLICITORS:	Director of Public Prosecutions (Qld) for the applicant Robertson O’Gorman for the respondent