R v Beer - [2004] QCA 396

SUPREME COURT OF QUEENSLAND

CITATION:

R v Beer [2004] QCA 396

PARTIES:

R
v
BEER, Barry Joseph
(applicant)

FILE NO/S:

CA No 251of 2004
SC No 623 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

25 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

25 October 2004

JUDGES:

Davies JA, Fryberg and Mullins JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for extension of time to appeal against conviction dismissed

2. Application to adduce further evidence dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – applicant seeks extension of time after previously abandoning appeal against conviction – whether in the interests of justice that abandonment of appeal be set aside – whether applicant can adduce further evidence

R v Tabe [1983] 2 Qd R 60

COUNSEL:

The applicant appeared on his own behalf
M R Byrne for the respondent

SOLICITORS:

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

DAVIES JA: I shall ask Justice Mullins to deliver her reasons first.

MULLINS J: The applicant was convicted after trial of one count of grievous bodily harm with intent. He was sentenced to eight years' imprisonment and a declaration was made that he was convicted of a serious violent offence.

On 6 December 1999 a notice of appeal against conviction and an application for leave to appeal against sentence was filed. A notice of abandonment of the appeal against conviction was filed on 6 April 2000.

The application for leave to appeal against sentence was heard on 12 April 2000 and was successful. The sentence was reduced to seven years' imprisonment and the serious violent offence declaration was set aside.

This current proceeding commenced with the filing on 30 July 2004 of a notice of application for extension of time to appeal against the conviction. An amended notice was filed on 24 August 2004.

The facts relating to the offence are set out in the Court of Appeal's judgment on the application for leave to appeal against sentence: R v. Beer [2000] QCA 193.

The complainant's version of the assault by the applicant which was substantially supported by the complainant's stepdaughter's evidence must have been accepted by the jury for them to have found the applicant guilty of grievous bodily harm with intent.

The applicant was provided in May 2002 with the material relied on by the complainant in support of his application for criminal injuries compensation. This material has prompted this application.

The applicant now points to material that was not made available to him at trial and, in effect, seeks a new trial on the basis of this fresh evidence.

The first category of such evidence is that which could be given by clinical psychologist, Mr…

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 Beer

Details

AGLC: R v Beer [2004] QCA 396
Case: [2004] QCA 396
Decision Date: 25 October 2004

CaseChat Overview and Summary

The case of R v Beer before the Queensland Court of Appeal involved the applicant's attempt to extend the time for appealing against a conviction and sentence previously abandoned. The applicant had appealed against the conviction but subsequently abandoned the appeal, seeking now to reinstate it and adduce further evidence. The Court of Appeal was tasked with determining whether it was in the interests of justice to set aside the abandonment of the appeal and allow the applicant to adduce further evidence.

The central legal issue for the court was whether the applicant's circumstances justified setting aside the abandonment of the appeal and permitting the presentation of additional evidence. The court considered the principles governing extensions of time for appeals, including the requirement that any extension must be in the interests of justice and that the applicant must demonstrate a sufficient reason for the delay. The court also examined whether the applicant could provide new evidence that was not previously available or could not have been discovered with due diligence.

The court found that the applicant had not demonstrated a sufficient reason for the delay in appealing against the conviction or that the additional evidence was of a nature that it could not have been discovered with due diligence at an earlier time. The court concluded that it was not in the interests of justice to allow the abandonment of the appeal to be set aside. Consequently, the application for an extension of time to appeal against the conviction and the application to adduce further evidence were dismissed. The court adhered to the principle that appeals should be heard in a timely manner to ensure the finality of judgments and to maintain the integrity of the judicial process.

Orders

Orders of the court

1. Application for extension of time to appeal against conviction dismissed

2. Application to adduce further evidence dismissed

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Beer [2004] QCA 396
PARTIES:	R v BEER, Barry Joseph (applicant)
FILE NO/S:	CA No 251of 2004 SC No 623 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	25 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	25 October 2004
JUDGES:	Davies JA, Fryberg and Mullins JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for extension of time to appeal against conviction dismissed 2. Application to adduce further evidence dismissed
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – applicant seeks extension of time after previously abandoning appeal against conviction – whether in the interests of justice that abandonment of appeal be set aside – whether applicant can adduce further evidence R v Tabe [1983] 2 Qd R 60
COUNSEL:	The applicant appeared on his own behalf M R Byrne for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent