R v Armstrong - [2014] QCA 274

SUPREME COURT OF QUEENSLAND

CITATION:

R v Armstrong [2014] QCA 274

PARTIES:

R
v
ARMSTRONG, Gavin Arthur Thomas
(applicant)

FILE NO/S:

CA No 189 of 2014
SC No 399 of 2010
SC No 657 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 October 2014

DELIVERED AT:

Brisbane

HEARING DATE:

24 October 2014

JUDGES:

Gotterson JA and Philippides and McMeekin JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Leave to adduce evidence by way of the file of documents handed to the Court at the hearing of the application refused.

2. Application for extension of time to appeal against conviction and sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICE OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where there were road works along the Bruce Highway – where the applicant was driving through the road works in a manner inconsistent with the proper requirements in the circumstances – where the deceased was resting by a parked utility – where the applicant collided with the parked utility and propelled the deceased 30 metres forward – where the deceased did not survive long after the impact – where the applicant was charged with manslaughter – where on 10 August 2011 the applicant was sentenced to nine years’ imprisonment with parole eligibility after three years and six months – where the applicant’s family carried out their own investigations, concluding that the applicant did not cause the deceased’s death – whether it is the interest of justice to grant the extension

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON A GUILTY PLEA – PARTICULAR CASES – where the applicant sustained a severe head injury from a motocross incident 17 years ago – where the applicant changed his instructions to plead guilty – whether the applicant understood the nature of the charge – whether the applicant intended to admit guilt

Criminal Code 1899 (Qld), s 671(3)

R v Carkeet [2009] 1 Qd R 190; [2008] QCA 143, cited
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied

COUNSEL:

The applicant appeared on his own behalf
B J Power for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: On 10 August 2011, the applicant, Gavin Arthur Thomas Armstrong, was convicted on pleas of guilty to a count on indictment of manslaughter and to summary offences of driving under the influence of alcohol and driving while unlicensed. Sentencing proceeded that day. For the manslaughter conviction, the applicant was sentenced to nine years’ imprisonment with eligibility for parole after three years and six months. Allowing for nine days of declared pre-sentence custody, the parole eligibility date was set at 1 February 2015. The applicant was also disqualified from holding or obtaining a driver’s…

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 Armstrong

Details

AGLC: R v Armstrong [2014] QCA 274
Case: [2014] QCA 274
Decision Date: 31 October 2014

CaseChat Overview and Summary

In the case of R v Armstrong, the appellant faced a charge of manslaughter following a fatal road accident where the deceased was propelled 30 metres after being struck by the appellant’s vehicle, resulting in the deceased’s death. The appellant was sentenced to nine years' imprisonment with parole eligibility after three and a half years. The appellant's family conducted their own investigations and concluded that the appellant did not cause the death of the deceased. They sought an extension of time to appeal against both the conviction and the sentence imposed.

The central legal issues before the court were whether an extension of time should be granted to appeal against the conviction and sentence and whether the appellant's understanding and intent in changing his plea to guilty were adequately considered. The court examined whether the appellant had a valid basis for his appeal and if granting the extension would serve the interests of justice.

The court found that the appellant's application for an extension of time to appeal was not supported by any evidence suggesting a miscarriage of justice. The appellant had not demonstrated any significant impediment to his ability to lodge the appeal within the time limits prescribed by law, and the court was not satisfied that the extension was necessary in the interests of justice. Consequently, the court refused the application for an extension of time to appeal against both the conviction and the sentence. The court also declined to allow the appellant to adduce evidence through the file of documents handed to the Court at the hearing of the application.

Orders

Orders of the court

1. Leave to adduce evidence by way of the file of documents handed to the Court at the hearing of the application refused.

2. Application for extension of time to appeal against conviction and sentence refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Armstrong [2014] QCA 274
PARTIES:	R v ARMSTRONG, Gavin Arthur Thomas (applicant)
FILE NO/S:	CA No 189 of 2014 SC No 399 of 2010 SC No 657 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	31 October 2014
DELIVERED AT:	Brisbane
HEARING DATE:	24 October 2014
JUDGES:	Gotterson JA and Philippides and McMeekin JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave to adduce evidence by way of the file of documents handed to the Court at the hearing of the application refused. 2. Application for extension of time to appeal against conviction and sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICE OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where there were road works along the Bruce Highway – where the applicant was driving through the road works in a manner inconsistent with the proper requirements in the circumstances – where the deceased was resting by a parked utility – where the applicant collided with the parked utility and propelled the deceased 30 metres forward – where the deceased did not survive long after the impact – where the applicant was charged with manslaughter – where on 10 August 2011 the applicant was sentenced to nine years’ imprisonment with parole eligibility after three years and six months – where the applicant’s family carried out their own investigations, concluding that the applicant did not cause the deceased’s death – whether it is the interest of justice to grant the extension CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON A GUILTY PLEA – PARTICULAR CASES – where the applicant sustained a severe head injury from a motocross incident 17 years ago – where the applicant changed his instructions to plead guilty – whether the applicant understood the nature of the charge – whether the applicant intended to admit guilt Criminal Code 1899 (Qld), s 671(3) R v Carkeet [2009] 1 Qd R 190; [2008] QCA 143, cited R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied
COUNSEL:	The applicant appeared on his own behalf B J Power for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent