R v Arnold - [2005] QCA 396

SUPREME COURT OF QUEENSLAND

CITATION:

R v Arnold [2005] QCA 396

PARTIES:

R
v
ARNOLD, David Lyall
(applicant)

FILE NO/S:

CA No 144 of 2005
CA No 189 of 2003
CA No 287 of 2001
CA No 293 of 2001
DC No 193 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

Court of Appeal

DELIVERED ON:

28 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

19 October 2005

JUDGES:

Jerrard and Keane JJA and Atkinson J
Judgment of the Court

ORDER:

Application for extension of time within which to apply for leave to appeal against sentence and appeal against conviction refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant convicted after trial of three counts of rape, two counts of attempted rape, four counts of stupefying with intent to commit an indictable offence, one count of indecent assault with a circumstance of aggravation, one count of attempted indecent assault with a circumstance of aggravation, two counts of assault, one count of indecent dealing with a circumstance of aggravation and one count of assault occasioning bodily harm – where applicant sought an extension of time in which to appeal against his convictions – where the applicant has previously appealed to the Court of Appeal against his convictions – where that prior appeal has been disposed of on the merits – whether the Court of Appeal has jurisdiction to hear a further appeal against those same convictions

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant has sought an extension of time to appeal against his sentence – where there has previously been an Attorney-General’s appeal on the grounds that the sentence is manifestly inadequate – where the Attorney-General’s appeal has been allowed – where the applicant has previously appealed to the Court of Appeal against his sentence – where that prior appeal has been disposed of on the merits – whether the Court of Appeal has jurisdiction to hear a further appeal against sentence

Criminal Code 1899 (Qld), s 668D, s 671D

Grierson v The King (1938) 60 CLR 431, applied
R v AP [2003] QCA 445; CA No 435 of 2002 and CA No 133 of 2003, 17 October 2003, applied
R v Arnold; ex parte A-G (Qld) [2002] QCA 357; (2002) 134 A Crim R 151, considered
R v Arnold [2003] QCA 448; CA No 189 of 2003, 15 October 2003, considered
R v MAM [2005] QCA 323; CA No 118 of 2005, 30 August 2005, applied
R v Pettigrew [1996] QCA 235; [1997] 1 Qd R 601, applied

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 Arnold

Details

AGLC: R v Arnold [2005] QCA 396
Case: [2005] QCA 396
Decision Date: 28 October 2005

CaseChat Overview and Summary

The case of R v Arnold involved the applicant appealing against his convictions and sentences, which were related to multiple counts of serious sexual offences, as well as other related charges. The applicant had previously appealed to the Court of Appeal against both his convictions and sentences, and these appeals had been dealt with on the merits. The primary issue before the court was whether the Court of Appeal had jurisdiction to entertain a further appeal against the same convictions and sentences, particularly given the prior appeals and the statutory framework governing such matters in Queensland.

The legal issues the court had to address included whether the Court of Appeal could extend the time limit for the applicant to appeal against his convictions and sentences, and whether it had jurisdiction to hear a further appeal given that the previous appeals had already been decided on the merits. The court had to consider statutory provisions and precedents concerning the extension of time for appeals, the nature of the prior appeals, and the finality of the previous decisions. The court also examined the grounds upon which the applicant sought to appeal again and whether there were any exceptional circumstances that warranted a further appeal.

The Court of Appeal held that it did not have jurisdiction to hear the applicant's further appeal against both his convictions and sentences. The court found that the previous appeals had been dealt with on the merits, and there were no exceptional circumstances that would allow a further appeal. The court also considered the statutory provisions and concluded that the time limits for appealing had expired and could not be extended. Consequently, the application for an extension of time to appeal against the sentence and the application for leave to appeal against the convictions were dismissed.

The final orders of the Court of Appeal were that the application for an extension of time within which to apply for leave to appeal against the sentence and appeal against the conviction was refused. The court emphasized the importance of adhering to statutory time limits and the finality of prior appeals decided on the merits.

Orders

Orders of the court

Application for extension of time within which to apply for leave to appeal against sentence and appeal against conviction 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 Arnold [2005] QCA 396
PARTIES:	R v ARNOLD, David Lyall (applicant)
FILE NO/S:	CA No 144 of 2005 CA No 189 of 2003 CA No 287 of 2001 CA No 293 of 2001 DC No 193 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	Court of Appeal
DELIVERED ON:	28 October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	19 October 2005
JUDGES:	Jerrard and Keane JJA and Atkinson J Judgment of the Court
ORDER:	Application for extension of time within which to apply for leave to appeal against sentence and appeal against conviction refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant convicted after trial of three counts of rape, two counts of attempted rape, four counts of stupefying with intent to commit an indictable offence, one count of indecent assault with a circumstance of aggravation, one count of attempted indecent assault with a circumstance of aggravation, two counts of assault, one count of indecent dealing with a circumstance of aggravation and one count of assault occasioning bodily harm – where applicant sought an extension of time in which to appeal against his convictions – where the applicant has previously appealed to the Court of Appeal against his convictions – where that prior appeal has been disposed of on the merits – whether the Court of Appeal has jurisdiction to hear a further appeal against those same convictions CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant has sought an extension of time to appeal against his sentence – where there has previously been an Attorney-General’s appeal on the grounds that the sentence is manifestly inadequate – where the Attorney-General’s appeal has been allowed – where the applicant has previously appealed to the Court of Appeal against his sentence – where that prior appeal has been disposed of on the merits – whether the Court of Appeal has jurisdiction to hear a further appeal against sentence Criminal Code 1899 (Qld), s 668D, s 671D Grierson v The King (1938) 60 CLR 431, applied R v AP [2003] QCA 445; CA No 435 of 2002 and CA No 133 of 2003, 17 October 2003, applied R v Arnold; ex parte A-G (Qld) [2002] QCA 357; (2002) 134 A Crim R 151, considered R v Arnold [2003] QCA 448; CA No 189 of 2003, 15 October 2003, considered R v MAM [2005] QCA 323; CA No 118 of 2005, 30 August 2005, applied R v Pettigrew [1996] QCA 235; [1997] 1 Qd R 601, applied