Hurley v Elliott - [2006] QCA 165

SUPREME COURT OF QUEENSLAND

CITATION:

Hurley v Elliott [2006] QCA 165

PARTIES:

HURLEY, Anthony Richmond
(applicant)
v
ELLIOTT, PCSC Paul J
(respondent)

FILE NO/S:

CA No 63 of 2006
DC No 33 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED EX TEMPORE ON:

19 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2006

JUDGES:

McMurdo P, Jerrard JA and Muir J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal refused

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – POSSESSION – OTHER MATTERS - where applicant was convicted of possessing a dangerous drug, possessing items used in connection with a dangerous drug and possessing property obtained from supplying a dangerous drug – where applicant was fined $2,000 in default of six months imprisonment with one month to pay

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS - QUEENSLAND - PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT - where applicant appealed to the District Court - where his appeal was twice listed for hearing but applicant did not appear either time so appeals were struck out – where applicant now applies for leave to appeal under s 118 DCA claiming he had a doctor's appointment at the time of the more recent District Court hearing – whether District Court judge was justified in striking out applicant's more recent appeal - whether applicant has any reasonable prospects of success in this application for leave to appeal against either his conviction or sentence

COUNSEL:

The applicant appeared on his own behalf

P F Rutledge for respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for respondent

THE PRESIDENT: The applicant Mr Hurley has not appeared today in this application although he was given notice of today's hearing on 11 April 2006; nor has he filed any material in support of the application. He was convicted in the Magistrate's Court at Bundaberg on 4 May 2005 of possessing a dangerous drug (cannabis), possessing things used in connection with a dangerous drug (water pipe), a similar charge concerning electronic scales and possessing property obtained from supplying a dangerous drug ($52.80).

It is not entirely clear from the material whether the applicant pleaded guilty but this seems likely from the way in which the proceedings were then conducted and from the endorsements on the Bench charge sheets.

The Prosecutor outlined the facts upon which the charges were based. Police searched the property at Bargara where the applicant lived with his wife and others. They found bags of cannabis, a water pipe and $52.80 in cash. During the search, the police noticed that the applicant went to a shed where he moved the bags of cannabis, money, scales and a water pipe…

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.

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Details

Case: [2006] QCA 165
Decision Date: 19 May 2006

CaseChat Overview and Summary

The applicant, Hurley, appealed against his conviction and sentence in the District Court of Queensland. He was convicted of possessing a dangerous drug, possessing items used in connection with a dangerous drug, and possessing property obtained from supplying a dangerous drug. He was fined $2,000, with a six-month imprisonment to be served if the fine was not paid within a month. The applicant was twice unable to appear at the District Court for the scheduled appeal hearings, resulting in the striking out of his appeals. He now applies for leave to appeal under section 118 of the District Court Act 1967 (Qld), asserting that he had a doctor's appointment on the date of the more recent hearing. The central legal issues were whether the District Court judge was justified in striking out Hurley's appeal and whether Hurley has reasonable prospects of success in this application for leave to appeal against either his conviction or sentence.

The Court considered the statutory provisions governing the striking out of appeals and the criteria for granting leave to appeal. The Court noted that under section 106(2)(b) of the District Court Act, an appeal may be struck out if the appellant fails to appear for the hearing. The Court held that the District Court judge was justified in striking out Hurley's appeal as he failed to attend both scheduled hearings. The Court also considered whether Hurley had reasonable prospects of success in his application for leave to appeal. The Court found that Hurley's explanation for his non-appearance, a doctor's appointment, was not compelling enough to justify a departure from the statutory requirements. The Court concluded that Hurley did not have reasonable prospects of success in appealing against either his conviction or sentence.

In light of the above, the Court refused Hurley's application for leave to appeal. The Court found that Hurley did not have a sufficient ground to appeal against the decision of the District Court to strike out his appeals. Furthermore, the Court determined that Hurley did not have reasonable prospects of success in this application for leave to appeal against either his conviction or sentence. The Court emphasised the importance of adhering to the statutory requirements for the conduct of appeals and found that Hurley had not demonstrated any grounds to warrant the Court's intervention. Consequently, Hurley's application for leave to appeal was dismissed.

Orders

Orders of the court

Application for leave to appeal 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:	Hurley v Elliott [2006] QCA 165
PARTIES:	HURLEY, Anthony Richmond (applicant) v ELLIOTT, PCSC Paul J (respondent)
FILE NO/S:	CA No 63 of 2006 DC No 33 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Bundaberg
DELIVERED EX TEMPORE ON:	19 May 2006
DELIVERED AT:	Brisbane
HEARING DATE:	19 May 2006
JUDGES:	McMurdo P, Jerrard JA and Muir J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal refused
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – POSSESSION – OTHER MATTERS - where applicant was convicted of possessing a dangerous drug, possessing items used in connection with a dangerous drug and possessing property obtained from supplying a dangerous drug – where applicant was fined $2,000 in default of six months imprisonment with one month to pay CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS - QUEENSLAND - PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT - where applicant appealed to the District Court - where his appeal was twice listed for hearing but applicant did not appear either time so appeals were struck out – where applicant now applies for leave to appeal under s 118 DCA claiming he had a doctor's appointment at the time of the more recent District Court hearing – whether District Court judge was justified in striking out applicant's more recent appeal - whether applicant has any reasonable prospects of success in this application for leave to appeal against either his conviction or sentence
COUNSEL:	The applicant appeared on his own behalf P F Rutledge for respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for respondent