R v Abell - [2015] QCA 144

SUPREME COURT OF QUEENSLAND

CITATION:

R v Abell [2015] QCA 144

PARTIES:

R
v
ABELL, Phillip Graeme
(applicant)

FILE NOS:

CA No 121 of 2014
CA No 122 of 2014
SC No 568 of 2012
DC No 526 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)
Application for Extension (Sentence)

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 8 October 2013
District Court at Brisbane – Unreported, 6 November 2013

DELIVERED ON:

Orders delivered ex tempore 20 July 2015
Reasons delivered 14 August 2015

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2015

JUDGES:

Fraser and Morrison JJA and Flanagan J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 20 July 2015:

1. The application for an extension of time to appeal against conviction and sentence is refused.

2. The application for an extension of time to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant failed to file his notice of appeal against conviction and sentence within time – where the proposed conviction appeal was seven months out of time, the proposed appeal against the sentence for murder was six months and 17 days out of time, and where the proposed appeal against the sentence for the ‘home invasion’ offences was five months and 17 days out of time – where the applicant’s solicitor filed an affidavit explaining the delay – where it was possible to determine the viability of the appeal – whether there was good reason for the delay – whether the prospective appeal is viable

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – OTHER MATTERS – where the applicant was charged with the murder of a police officer – where the applicant had shot the police officer during the commission of an armed robbery – where the applicant alleged that the police officer had failed to call upon the applicant to stop, or in the alternative, that having warned the applicant, failed to give him sufficient time to stop as required by the Police Powers and Responsibilities Act 2000 (Qld) – where this failure would have made the police officer’s conduct an unlawful assault – where the applicant contended he acted in self-defence – whether it was open to the jury to exclude the hypothesis of self-defence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the sentencing judge deferred the applicant’s date for eligibility for release on parole beyond the statutory minimum – where the applicant had demonstrated no remorse – where the applicant had killed an on-duty police officer – where the applicant had a significant criminal history – whether it was appropriate to extend the period before the applicant would…

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 Abell

Details

AGLC: R v Abell [2015] QCA 144
Case: [2015] QCA 144
Decision Date: 20 July 2015

CaseChat Overview and Summary

The applicant, who had been convicted and sentenced for murder and a series of home invasion offences, sought an extension of time to appeal both his conviction and his sentences. The application was brought before the court, which had to decide whether there was good reason for the delay in filing the notices of appeal and whether the proposed appeals had a viable chance of success. The applicant’s solicitor provided an affidavit explaining the delay, which the court considered alongside the merits of the proposed appeals.

The court assessed the viability of the appeal against conviction, focusing on whether it was open to the jury to exclude the hypothesis of self-defence, given the applicant's claim that he acted in self-defence against the police officer who had allegedly failed to call upon him to stop. The court also examined the appeal against sentence for murder, determining whether the sentence was manifestly excessive, considering factors such as the applicant's lack of remorse and the seriousness of the crime. Additionally, the court evaluated the appeal against the sentence for the home invasion offences, considering whether the aggregate punishment was excessive, particularly in light of the applicant already serving a life sentence.

The court concluded that the delay in filing the notices of appeal was not justified and that there was no good reason for the late filing. The court also found that the proposed appeals did not have a viable chance of success. Consequently, the court refused the application for an extension of time to appeal both the conviction and the sentences. The court's decision was delivered ex tempore on 20 July 2015.

Orders

Orders of the court

Delivered ex tempore on 20 July 2015:

1. The application for an extension of time to appeal against conviction and sentence is refused.

2. The application for an extension of time to appeal against sentence is refused.

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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CITATION:	R v Abell [2015] QCA 144
PARTIES:	R v ABELL, Phillip Graeme (applicant)
FILE NOS:	CA No 121 of 2014 CA No 122 of 2014 SC No 568 of 2012 DC No 526 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction) Application for Extension (Sentence)
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported, 8 October 2013 District Court at Brisbane – Unreported, 6 November 2013
DELIVERED ON:	Orders delivered ex tempore 20 July 2015 Reasons delivered 14 August 2015
DELIVERED AT:	Brisbane
HEARING DATE:	20 July 2015
JUDGES:	Fraser and Morrison JJA and Flanagan J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 20 July 2015: 1. The application for an extension of time to appeal against conviction and sentence is refused. 2. The application for an extension of time to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant failed to file his notice of appeal against conviction and sentence within time – where the proposed conviction appeal was seven months out of time, the proposed appeal against the sentence for murder was six months and 17 days out of time, and where the proposed appeal against the sentence for the ‘home invasion’ offences was five months and 17 days out of time – where the applicant’s solicitor filed an affidavit explaining the delay – where it was possible to determine the viability of the appeal – whether there was good reason for the delay – whether the prospective appeal is viable CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – OTHER MATTERS – where the applicant was charged with the murder of a police officer – where the applicant had shot the police officer during the commission of an armed robbery – where the applicant alleged that the police officer had failed to call upon the applicant to stop, or in the alternative, that having warned the applicant, failed to give him sufficient time to stop as required by the Police Powers and Responsibilities Act 2000 (Qld) – where this failure would have made the police officer’s conduct an unlawful assault – where the applicant contended he acted in self-defence – whether it was open to the jury to exclude the hypothesis of self-defence CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the sentencing judge deferred the applicant’s date for eligibility for release on parole beyond the statutory minimum – where the applicant had demonstrated no remorse – where the applicant had killed an on-duty police officer – where the applicant had a significant criminal history – whether it was appropriate to extend the period before the applicant would…