Popa v Austin - [2004] QCA 227

SUPREME COURT OF QUEENSLAND

CITATION:

Popa v Austin [2004] QCA 227

PARTIES:

POPA, Costica
(appellant/applicant)
v
AUSTIN, Paul
(respondent/respondent)

FILE NO/S:

CA No 9 of 2004
DC No 189 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Cairns

DELIVERED EX TEMPORE ON:

1 July 2004

DELIVERED AT:

Brisbane

HEARING DATE:

1 July 2004

JUDGES:

Davies, Williams and Jerrard JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for extension of time within which to seek leave to appeal dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - OTHER CASES - where the applicant was convicted in the Magistrates Court of possessing property that may reasonably be suspected of being tainted property - where appeal to the District Court was dismissed - where applicant seeks leave to appeal to this Court on the grounds that the police could not have formed a reasonable suspicion that the money was tainted at the time of arrest - where the applicant also submits that he has already been charged with an offence which relies on the same subject matter as that in the current offence - whether application for extension of time and leave to appeal should be granted

Criminal Code (Qld), s 16

McGee v McKeever; ex parte McGee [1995] 1 QdR 623

R v Hull (No 2) [1902] St R Qd 53, cited

COUNSEL:

Applicant appeared on his own behalf
S G Bail for respondent

SOLICITORS:

Applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for respondent

DAVIES JA: On 19 February 2002, the applicant was convicted after a trial in the Supreme Court at Cairns of trafficking in heroin between 1 April 1999 and 20 January 2000. He was sentenced to 12 years imprisonment. On 28 March 2003, he was convicted after a trial in the Magistrates Court at Cairns of possessing property, namely $8,520 in Australian currency, that may reasonably be suspected of being tainted property. He was sentenced to six months imprisonment to be served concurrently with the sentence he was then serving. The learned magistrate also ordered that the money the subject of the charge be forfeited to the Crown.

On 26 or possibly 27 November 2003 the appellant's appeal against his conviction and sentence for possession of suspected tainted property was dismissed by the District Court.

In order to appeal against that decision of the District Court the applicant requires leave of this Court. He seeks leave to appeal against that decision both as to conviction and sentence. His application to do so is out of time but he contends that he filed an application, though not in the correct form, within time. His application in the correct form was approximately two and a half weeks out of time so he therefore also…

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 Popa v Austin

Details

AGLC: Popa v Austin [2004] QCA 227
Case: [2004] QCA 227
Decision Date: 1 July 2004

CaseChat Overview and Summary

The applicant, Popa, sought leave to appeal against his conviction in the Magistrates Court for possessing property that may reasonably be suspected of being tainted property. The appeal to the District Court had already been dismissed. Popa now sought leave to appeal to this Court, arguing that the police could not have formed a reasonable suspicion that the money was tainted at the time of his arrest. Additionally, Popa submitted that he had already been charged with an offence that relied on the same subject matter as the current offence. The court had to determine whether to grant an extension of time and leave to appeal under section 16 of the Criminal Code.

The central legal issues involved the interpretation of section 16 of the Criminal Code and the principles of double jeopardy. The court needed to consider whether Popa's appeal was time-barred and whether the police could reasonably have suspected the money was tainted at the time of his arrest. Furthermore, the court had to examine whether the principle of double jeopardy applied, given that Popa had already been charged with an offence based on the same subject matter. The cases of McGee v McKeever and R v Hull (No 2) were cited as relevant precedents.

The court found that the application for an extension of time was not justified. The appeal was considered time-barred, and the court found no grounds for leave to appeal. The court held that the police had a reasonable suspicion that the money was tainted at the time of arrest, and the principle of double jeopardy did not apply in this case. The court dismissed the application for extension of time and leave to appeal.

Orders

Orders of the court

Application for extension of time within which to seek leave to appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Popa v Austin [2004] QCA 227
PARTIES:	POPA, Costica (appellant/applicant) v AUSTIN, Paul (respondent/respondent)
FILE NO/S:	CA No 9 of 2004 DC No 189 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Cairns
DELIVERED EX TEMPORE ON:	1 July 2004
DELIVERED AT:	Brisbane
HEARING DATE:	1 July 2004
JUDGES:	Davies, Williams and Jerrard JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time within which to seek leave to appeal dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - OTHER CASES - where the applicant was convicted in the Magistrates Court of possessing property that may reasonably be suspected of being tainted property - where appeal to the District Court was dismissed - where applicant seeks leave to appeal to this Court on the grounds that the police could not have formed a reasonable suspicion that the money was tainted at the time of arrest - where the applicant also submits that he has already been charged with an offence which relies on the same subject matter as that in the current offence - whether application for extension of time and leave to appeal should be granted Criminal Code (Qld), s 16 McGee v McKeever; ex parte McGee [1995] 1 QdR 623 R v Hull (No 2) [1902] St R Qd 53, cited
COUNSEL:	Applicant appeared on his own behalf S G Bail for respondent
SOLICITORS:	Applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for respondent