Fredericks v Wheeler - [1997] QCA 245

IN THE COURT OF APPEAL	[1997] QCA 245
SUPREME COURT OF QUEENSLAND

C.A. No. 245 of 1997.

Brisbane

[Fredericks v. Wheeler]

ANDREW SCOTT FREDERICKS

MALCOLM EDWARD WHEELER

(Applicant)

___________________________________________________________________

Pincus J.A. Davies J.A. White J.

_____________________________________________________________________

Judgment delivered 12 August 1997

Judgment of the Court
_____________________________________________________________________

APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL REFUSED _____________________________________________________________________

CATCHWORDS: CRIMINAL LAW - unlawful assault occasioning bodily harm - no

conviction recorded - whether applicant has a right to appeal
against conviction to Court of Appeal - whether extension of
time to appeal should be allowed.
S. 12 Penalties and Sentences Act 1992.

Counsel:	Heard on the papers. Director of Public Prosecutions (Queensland) for the respondent. Applicant acted on his own behalf.
Solicitors:	Heard on the papers. Director of Public Prosecutions (Queensland) for the respondent. Applicant acted on his own behalf.
Hearing date:	4 August 1997.
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 12 August 1997

This is a application for an extension of time within which to appeal. The applicant was convicted at Townsville by Verra ASM, of having committed an unlawful assault occasioning bodily harm, no conviction being recorded. The applicant, a solicitor, has explained in his application that he thought that there was no right of appeal to this Court. Section 668D of the Criminal Code gives this Court jurisdiction to hear appeals against convictions on indictment. The offence charged was one defined by s. 339 of the Code, which creates a misdemeanour, that being an indictable offence: s. 3(3) of the Code.

Under s. 673 of the Code a person summarily convicted of an indictable offence (as the applicant was) is entitled to appeal as if convicted on indictment: Ross (1979) 141 C.L.R. 432, Will v. Borcherdt [1990] 2 Qd.R. 399. Under s. 12(3) of the Penalties and Sentences Act 1992 ("the 1992 Act") except as otherwise expressly provided, a conviction without recording a conviction is taken not to be a conviction for any purpose. But under s. 12(4) of the 1992 Act a Court may make "any other order that it may make under this or another Act because of the conviction". On the face of it, the sub-section appears to preserve this Court’s statutory jurisdiction to allow appeals against conviction where, no conviction having been recorded, what is complained of is a conviction on indictment or a conviction which must for the purposes of appeal be treated as if it were on indictment, under s. 673.

The source of the applicant’s doubt on this point was s. 12(4)(b) of the 1992 Act, designed to preserve appeals against sentence, where no conviction has been recorded. Although one may question why it was thought necessary to make a specific provision for appeals against sentence there is in our opinion no sufficient reason to imply an intention to interfere with this Court’s jurisdiction to allow appeals against conviction. One reason for this conclusion is that it would be odd to preserve appeals against sentence…

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 Fredericks v Wheeler

Details

AGLC: Fredericks v Wheeler [1997] QCA 245
Case: [1997] QCA 245
Decision Date: 12/08/1997

CaseChat Overview and Summary

The case of Fredericks v Wheeler involved an application for an extension of time within which to appeal a conviction for unlawful assault occasioning bodily harm. The applicant, a solicitor, was convicted by Verra ASM at Townsville but no conviction was recorded. The applicant sought to appeal against the conviction to the Court of Appeal, arguing that he had misunderstood the legal right to appeal in cases where no conviction is recorded. The legal issues before the Court were whether the applicant had a right to appeal against the conviction and, if so, whether an extension of time should be allowed.

The Court of Appeal found that under section 668D of the Criminal Code, it had jurisdiction to hear appeals against convictions on indictment, and that the offence charged was an indictable offence. Section 673 of the Code allowed a person summarily convicted of an indictable offence to appeal as if convicted on indictment. The Court interpreted section 12(4) of the Penalties and Sentences Act 1992 to preserve the Court’s jurisdiction to allow appeals against conviction, despite no conviction being recorded. The Court acknowledged that the applicant's doubt about the appeal right was credible but considered the delay in filing the application and the lack of merit in the appeal grounds. The Court ultimately rejected the application for an extension of time.

The Court found that the applicant had struck the complainant, causing injury, after a dispute over the cutting of branches from a tree. The Court examined the applicant's evidence and the magistrate’s reasons for rejecting the defences of provocation and self-defence, concluding that the applicant’s actions were unjustified. The Court found the case plainly one where justice had been done.

Orders