R v AAG and AAH - [2009] QCA 158

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 2006

DIVISION:

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 made

ORDERS:

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 13A

R 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, cited

COUNSEL:

P E Smith for the applicants
A W Moynihan SC, with L Brisick, for the respondent

SOLICITORS:

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…

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 R v AAG and AAH

Details

AGLC: R v AAG & AAH [2009] QCA 158
Case: [2009] QCA 158
Decision Date: 12 June 2009

CaseChat Overview and Summary

The applicants in this case, AAG and AAH, pleaded guilty to nine counts of rape and one count of deprivation of liberty. They were subsequently sentenced to eight and a half years imprisonment, with a serious violent offence declaration. The applicants filed applications for leave to appeal against their sentences within the prescribed time. However, these applications were later abandoned due to legal advice that an appeal would be unsuccessful and the applicants' lack of funds. The applicants now seek to set aside the abandonment of their applications for leave to appeal and to have these applications reinstated. The court must determine whether it would be a miscarriage of justice not to allow the applicants to reinstate their applications for leave to appeal, and whether the abandonment of the sentence applications should be set aside.

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

Full text does not contain this section.

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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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 2006
DIVISION:	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 made
ORDERS:	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 13A R 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, cited
COUNSEL:	P E Smith for the applicants A W Moynihan SC, with L Brisick, for the respondent
SOLICITORS:	Fisher Dore Lawyers for the applicants Director of Public Prosecutions (Qld) for the respondent