SUPREME COURT OF QUEENSLAND
CITATION:
R v AAG & AAH [2009] QCA 158
PARTIES:
R
v
AAG
(applicant)R
v
AAH
(applicant)FILE NO/S:
CA No 334 of 2008
CA No 335 of 2008
DC No 51 of 2006
DC No 635 of 2006DIVISION:
Court of Appeal
PROCEEDING:
Miscellaneous Applications – Criminal
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
12 June 2009
DELIVERED AT:
Brisbane
HEARING DATE:
13 May 2009
JUDGES:
McMurdo P, Holmes JA and A Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. Set aside the abandonment of the applications for leave to appeal
2. Reinstate the applications for leave to appeal
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – applicants pleaded guilty to nine counts of rape and one count of deprivation of liberty and were sentenced to eight and a half years imprisonment with a serious violent offence declaration – applicants filed applications for leave to appeal against sentence within time but these applications were abandoned – applications were abandoned due to legal advice that an appeal would be unsuccessful and lack of funds – applicants now apply to set aside the abandonment and reinstate the applications for leave to appeal – whether it would be a miscarriage of justice not to allow the applications – whether the abandonment of the sentence applications should be set aside and the application for leave to appeal reinstated
Criminal Practice Rules 1999 (Qld), r 69(4)
Penalties and Sentences Act 1992 (Qld), s 13AR v Barclay [1999] QCA 457, cited
R v Gerrits, unreported, Court of Criminal Appeal, CA No 158 of 1991, 4 October 1991, cited
R v Hussein & Hussein [2006] QCA 411, considered
R v Mason & Saunders [1998] 2 Qd R 186; [1997] QCA 421, considered
R v Mitchell [1998] QCA 31, considered
R v Penniment [1992] QCA 110, cited
R v Thompson (1994) 76 A Crim R 75; [1994] QCA 393, citedCOUNSEL:
P E Smith for the applicants
A W Moynihan SC, with L Brisick, for the respondentSOLICITORS:
Fisher Dore Lawyers for the applicants
Director of Public Prosecutions (Qld) for the respondent
McMURDO P: The applicants, AAG and AAH, pleaded guilty in January 2006 in the District Court at Brisbane to nine counts of rape and one count of deprivation of liberty committed on 13 February 2005. On 7 March 2006, both were sentenced to eight and a half years imprisonment on each count of rape and two and a half years concurrent imprisonment for the count of deprivation of liberty. All the rape offences were declared to be serious violent offences with the effect that each applicant will serve 6.8 years imprisonment before parole eligibility. In each case, pre-sentence custody was declared to be time served under the sentence. Both applicants filed applications for leave…
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- AGLC
- R v AAG & AAH [2009] QCA 158
- Case
- [2009] QCA 158
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the applicants' abandonment of their applications for leave to appeal should be set aside and these applications reinstated. The court was required to consider whether it would be a miscarriage of justice not to allow the applicants to pursue their appeals. The applicants argued that they had abandoned their applications due to legal advice that an appeal would be unsuccessful and a lack of funds, neither of which should be a valid reason for the court to refuse their applications. The respondents, represented by the Crown, contended that the applicants had voluntarily abandoned their applications and that there was no evidence of any external pressure or coercion that would render the abandonment unjust.
The court found that the applicants had abandoned their applications for leave to appeal due to legal advice that an appeal would be unsuccessful and a lack of funds. However, the court held that these reasons did not constitute valid grounds for refusing the applicants' current applications to set aside the abandonment and reinstate the applications for leave to appeal. The court emphasised that the question of whether it would be a miscarriage of justice not to allow the applicants to appeal was distinct from the question of whether the appeal itself would be successful. The court concluded that, in this instance, it would be a miscarriage of justice not to allow the applicants to pursue their appeals, as the applicants had a legitimate interest in seeking to have their sentences reviewed. Accordingly, the court set aside the abandonment of the applications for leave to appeal and reinstated these applications.
Orders
Orders of the court
1. Set aside the abandonment of the applications for leave to appeal
2. Reinstate the applications for leave to appeal
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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