Quartermaine v The Queen - [2002] WASCA 345

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: QUARTERMAINE -v- THE QUEEN [2002] WASCA 345

CORAM: PARKER J
HASLUCK J
OLSSON AUJ

HEARD: 5 DECEMBER 2002

DELIVERED : 5 DECEMBER 2002

PUBLISHED : 11 DECEMBER 2002

FILE NO/S: CCA 30 of 2000
CCA 31 of 2000
CCA 32 of 2000

BETWEEN: KEVIN GREGORY QUARTERMAINE
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Applications for leave to appeal - Convictions on indictment and sentences - Applicant died before hearing - Whether applications have abated

Legislation:

Criminal Code (WA), s 688

Result:

Applications for leave to appeal dismissed

Category: B

Representation:

Counsel:

Applicant: - (Deceased)
Respondent: Mr B Fiannaca

Solicitors:

Applicant: - (Deceased)
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Egerton v Middleton [1953] VLR 191
Johnson v Lapham (1992) 6 WAR 359
Sen v R (1991) 102 ALR 71

Case(s) also cited:

R v Jefferies [1969] 1 QB 120
R v Rowe [1955] 1 QB 573

JUDGMENT OF THE COURT: On 24 February 2000, Kevin Gregory Quartermaine filed in this Court a notice of application for leave to appeal against a number of convictions entered in the District Court at Perth on 11 January 2000 following trial on indictment. That application is the subject of CCA 30 of 2000. Also filed was a notice of application for leave to appeal against the sentences imposed in respect of those convictions, ie, sentences totalling 8 years imprisonment. That application is the subject of CCA 31 of 2000. Also filed was a notice of application for leave to appeal against a number of convictions entered in the District Court at Perth on 24 January 2000 after trial on indictment. That application being the subject of CCA 32 of 2000.
Before those applications for leave to appeal were heard and determined by this Court the applicant, Mr Quartermaine, died on 17 May 2002. His death certificate is before the Court.
By s 688 of the Criminal Code the right to appeal and to seek leave to appeal in respect of convictions on indictment, and sentences in respect of such convictions, is exercisable by the person convicted on indictment. There is no provision expressly enabling such an appeal or application for leave to appeal to be pursued by another, should the appellant or applicant die before the matter is heard and determined.
At least in cases such as the present, where the penalties imposed were sentences of imprisonment, there appears no means by which the present applications may be pursued after the death of the applicant; we would refer to the decision of the Full Federal Court in Sen v R (1991) 102 ALR 71, and also Egerton v Middleton [1953] VLR 191 and Johnson v Lapham (1992) 6 WAR 359.
In the circumstances each of the applications for leave, being CCAs number 30, 31 and 32 of 2000, must be taken to have abated on the death of the applicant on 17 May 2002 and should be dismissed accordingly. That will be the order of the Court.

Details

AGLC: Quartermaine v The Queen [2002] WASCA 345
Case: [2002] WASCA 345
Decision Date: 11 DECEMBER 2002

CaseChat Overview and Summary

Kevin Gregory Quartermaine applied for leave to appeal against his convictions and sentences imposed by the District Court at Perth. The applications were filed in the Court of Criminal Appeal on 24 February 2000. However, before these applications could be heard and determined, Mr Quartermaine passed away on 17 May 2002. The Court was required to determine whether the applications could be pursued by someone else following the death of the applicant or whether they had ceased to exist.

The court considered the provisions of section 688 of the Criminal Code, which specifies that the right to appeal and to seek leave to appeal is exercisable by the person convicted on indictment. The court also examined the relevant case law, including Sen v R, Egerton v Middleton, and Johnson v Lapham, which indicated that there is no provision enabling such an appeal or application for leave to appeal to be pursued by another after the death of the applicant. The court noted that in cases where the penalties imposed were sentences of imprisonment, there appeared to be no means by which the present applications could be pursued after the death of the applicant.

The court concluded that the applications for leave to appeal had abated on the death of the applicant on 17 May 2002, and therefore, they should be dismissed. The court found that there was no provision in the Criminal Code or case law that would allow the applications to be pursued by someone else following the death of the applicant. The court's decision was based on the clear wording of the statute and the relevant case law.

The Court ordered that the applications for leave to appeal, being CCAs number 30, 31 and 32 of 2000, were to be dismissed as they had abated on the death of the applicant on 17 May 2002.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HASLUCK J

JUDGMENT OF THE COURT: On 24 February 2000, Kevin Gregory Quartermaine filed in this Court a notice of application for leave to appeal against a number of convictions entered in the District Court at Perth on 11 January 2000 following trial on indictment. That application is the subject of CCA 30 of 2000. Also filed was a notice of application for leave to appeal against the sentences imposed in respect of those convictions, ie, sentences totalling 8 years imprisonment. That application is the subject of CCA 31 of 2000. Also filed was a notice of application for leave to appeal against a number of convictions entered in the District Court at Perth on 24 January 2000 after trial on indictment. That application being the subject of CCA 32 of 2000. Before those applications for leave to appeal were heard and determined by this Court the applicant, Mr Quartermaine, died on 17 May 2002. His death certificate is before the Court. By s 688 of the Criminal Code the right to appeal and to seek leave to appeal in respect of convictions on indictment, and sentences in respect of such convictions, is exercisable by the person convicted on indictment. There is no provision expressly enabling such an appeal or application for leave to appeal to be pursued by another, should the appellant or applicant die before the matter is heard and determined. At least in cases such as the present, where the penalties imposed were sentences of imprisonment, there appears no means by which the present applications may be pursued after the death of the applicant; we would refer to the decision of the Full Federal Court in Sen v R (1991) 102 ALR 71, and also Egerton v Middleton [1953] VLR 191 and Johnson v Lapham (1992) 6 WAR 359. In the circumstances each of the applications for leave, being CCAs number 30, 31 and 32 of 2000, must be taken to have abated on the death of the applicant on 17 May 2002 and should be dismissed accordingly. That will be the order of the Court.

Ratio Decidendi

Legal Principle Established

Established by: HASLUCK J

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