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

1. 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. 

2. 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.

3. 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.

4. 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.

5. 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.