R v Basacar - [2008] QCA 285

SUPREME COURT OF QUEENSLAND

CITATION:

R v Basacar [2008] QCA 285

PARTIES:

R
v
BASACAR, Fahri
(defendant/applicant)

FILE NO/S:

CA No 163 of 2008
DC No 3000 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Criminal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

15 September 2008

JUDGES:

Fraser JA, Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application dismissed

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 was convicted after trial of two counts of rape and one count of entering premises with intent – where applicant sentenced to a term of imprisonment – where applicant sought an extension of time in which to appeal against his convictions – where applicant filed appeal and later a notice of abandonment – where applicant alleges no knowledge of the notice of abandonment – whether there was a reasonable explanation for the abandonment – whether leave should be granted to withdraw notice of abandonment

Criminal Practice Rules (1999) (Qld), r 70

R v Green [1989] 1 Qd R 408, cited
R v Griffin [1969] 2 NSWR 497, cited
R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, cited
R v Tabe [1983] 2 Qd R 60, cited

COUNSEL: The applicant appeared on his own behalf
M J Copley for the respondent

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

FRASER JA: I agree with the order proposed by Cullinane J and with his Honour’s reasons for that order.

CULLINANE J: The applicant has filed an application seeking an extension of time within which to appeal against his conviction on two counts of rape and a count of entering premises with intent, at the District Court at Brisbane on 1 March 2006.

This application was filed on 20 June 2008.

The applicant in fact had instituted within time, an appeal against conviction and an application for leave to appeal against sentence.

The appeal against conviction was abandoned. The notice of abandonment bears the date 30 June 2006 and the applicant accepts that his signature appears on it. He was at this time legally represented.

The application for leave to appeal against sentence proceeded and was refused. The applicant was represented by senior counsel on the hearing of that application.

Rule 70 of the Criminal Practice Rules 1999 as amended provides as follows:

“(1) An appellant, at any time after starting an appeal, may abandon it by giving to the registrar a notice of abandonment of appeal.
(2)The appeal is taken to be dismissed by the court when the notice is given to the registrar.
(3)However, if the court considers it necessary in the…

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 Basacar

Details

AGLC: R v Basacar [2008] QCA 285
Case: [2008] QCA 285
Decision Date: 19 September 2008

CaseChat Overview and Summary

The case of R v Basacar involved an appeal by the applicant, who had been convicted after trial on two counts of rape and one count of entering premises with intent. The applicant was sentenced to imprisonment and subsequently sought an extension of time to appeal his convictions. He filed an appeal but later submitted a notice of abandonment of the appeal, claiming he had no knowledge of this notice. The legal issues in this case centred on whether there was a reasonable explanation for the abandonment of the appeal and whether leave should be granted to withdraw the notice of abandonment. The court had to consider the procedural aspects of the appeal, particularly the timeliness and the circumstances under which the notice of abandonment was filed.

The court examined the procedural history of the case, including the timeliness of the application for an extension of time and the circumstances surrounding the filing of the notice of abandonment. It considered whether the applicant's claim of ignorance regarding the notice of abandonment was credible and whether there were any exceptional circumstances that warranted the withdrawal of the notice. The court also assessed the legal framework under which the applicant could seek to withdraw the notice of abandonment, taking into account the provisions of the Criminal Appeal Act and other relevant procedural rules.

After careful consideration, the court found that there was no reasonable explanation for the abandonment of the appeal, and the applicant's claim of ignorance was not substantiated. The court concluded that the applicant had not provided sufficient grounds to justify the withdrawal of the notice of abandonment. Therefore, the court dismissed the application, and the notice of abandonment remained in effect. The applicant's appeal was therefore not proceeded with, and the convictions and sentences remained in place.

Orders

Orders of the court

Application dismissed

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 Basacar [2008] QCA 285
PARTIES:	R v BASACAR, Fahri (defendant/applicant)
FILE NO/S:	CA No 163 of 2008 DC No 3000 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Criminal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	19 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	15 September 2008
JUDGES:	Fraser JA, Cullinane and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application dismissed
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 was convicted after trial of two counts of rape and one count of entering premises with intent – where applicant sentenced to a term of imprisonment – where applicant sought an extension of time in which to appeal against his convictions – where applicant filed appeal and later a notice of abandonment – where applicant alleges no knowledge of the notice of abandonment – whether there was a reasonable explanation for the abandonment – whether leave should be granted to withdraw notice of abandonment Criminal Practice Rules (1999) (Qld), r 70 R v Green [1989] 1 Qd R 408, cited R v Griffin [1969] 2 NSWR 497, cited R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, cited R v Tabe [1983] 2 Qd R 60, cited
COUNSEL:	The applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent