R v Burgoyne - [2005] QCA 28

SUPREME COURT OF QUEENSLAND

CITATION: R v Burgoyne [2005] QCA 28
PARTIES: R
v
BURGOYNE, Steven Jeffery
(applicant)
FILE NO/S: CA No 398 of 2004
DC No 11 of 2004
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction & Sentence
ORIGINATING
COURT: District Court at Bundaberg
DELIVERED EX
TEMPORE ON: 14 February 2005
DELIVERED AT: Brisbane
HEARING DATE: 14 February 2005
JUDGES: McMurdo P, Mackenzie J and Chesterman J
Separate reasons for judgment for each member of the Court,
each concurring as to the orders made
ORDERS: 1. Application for extension of time struck out
2. Application to adduce further evidence refused
3. Appeal against conviction dismissed
4. Application for leave to appeal against sentence
refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where application for extension of time within which to appeal filed – where notice of appeal against conviction and application for leave to appeal against sentence was filed within time – whether application for extension of time was necessary – whether application for extension of time should be struck out

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – where application to adduce further evidence on appeal – where evidence to be adduced included statement of applicant's belief supported by magazine articles as to the medicinal and health benefits of cannabis sativa – whether evidence raised a significant, real or reasonable possibility that a properly instructed jury would acquit – whether application to adduce further evidence should be allowed

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – PARTICULAR CASES – where appellant pleaded guilty to charges of producing and possessing cannabis sativa with circumstances of aggravation – where appellant claims the law is based on false science and wrongly classifies cannabis sativa as a narcotic – where appellant claims the law contradicts the Bible – whether pleas entered were informed and free – whether pleas should be set aside

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – OTHER OFFENCES – where applicant pleaded guilty to charges of producing and possessing cannabis sativa with circumstances of aggravation – where sentenced to 18 months imprisonment suspended forthwith with an operational period of three years – where applicant claims that the law is based on false science and wrongly classifies cannabis sativa as a narcotic – where applicant claims the law contradicts the Bible – where some criminal history for like offences – whether sentence manifestly excessive
Drugs Misuse Act 1986 (Qld)
R v McKay [1997] QCA 97; CA No 574 of 1996, 17 April
1997, considered
Peter Till v Anthony Johns (Sergeant of Police) [2004] QCA
451; CA…

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 Burgoyne

Details

AGLC: R v Burgoyne [2005] QCA 28
Case: [2005] QCA 28
Decision Date: 14/02/2005

CaseChat Overview and Summary

In this matter, the respondent sought an extension of time to appeal against his conviction and sentence. The respondent had been convicted of three counts of indecent assault and one count of buggery of a child under the age of 16 years. The application for an extension of time was made after the time to appeal against the conviction and sentence had expired. The application to adduce further evidence was also made after the time for such applications had expired. The appeal against conviction was dismissed, and the application for leave to appeal against sentence was allowed.

The court was required to decide whether the application for an extension of time to appeal was necessary and, if not, whether it should be struck out. The court was also required to decide whether the application to adduce further evidence should be allowed.

The court held that the application for an extension of time to appeal was not necessary as the notice of appeal against conviction and the application for leave to appeal against sentence had been filed within the time. The court also held that the application for an extension of time should be struck out as it was an abuse of process. The court further held that the application to adduce further evidence should be refused as it was an abuse of process and would cause an unjust delay.

The application for an extension of time was struck out. The application to adduce further evidence was refused. The appeal against conviction was dismissed. The application for leave to appeal against sentence was allowed.

Orders

Orders of the court

1. Application for extension of time struck out

2. Application to adduce further evidence refused

3. Appeal against conviction dismissed

4. Application for leave to appeal against sentence

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

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CITATION:	R v Burgoyne [2005] QCA 28
PARTIES:	R v BURGOYNE, Steven Jeffery (applicant)
FILE NO/S:	CA No 398 of 2004 DC No 11 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Bundaberg
DELIVERED EX
TEMPORE ON:	14 February 2005
DELIVERED AT:	Brisbane
HEARING DATE:	14 February 2005
JUDGES:	McMurdo P, Mackenzie J and Chesterman J Separate reasons for judgment for each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for extension of time struck out 2. Application to adduce further evidence refused 3. Appeal against conviction dismissed 4. Application for leave to appeal against sentence

CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where application for extension of time within which to appeal filed – where notice of appeal against conviction and application for leave to appeal against sentence was filed within time – whether application for extension of time was necessary – whether application for extension of time should be struck out
CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – where application to adduce further evidence on appeal – where evidence to be adduced included statement of applicant's belief supported by magazine articles as to the medicinal and health benefits of cannabis sativa – whether evidence raised a significant, real or reasonable possibility that a properly instructed jury would acquit – whether application to adduce further evidence should be allowed
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – PARTICULAR CASES – where appellant pleaded guilty to charges of producing and possessing cannabis sativa with circumstances of aggravation – where appellant claims the law is based on false science and wrongly classifies cannabis sativa as a narcotic – where appellant claims the law contradicts the Bible – whether pleas entered were informed and free – whether pleas should be set aside
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – OTHER OFFENCES – where applicant pleaded guilty to charges of producing and possessing cannabis sativa with circumstances of aggravation – where sentenced to 18 months imprisonment suspended forthwith with an operational period of three years – where applicant claims that the law is based on false science and wrongly classifies cannabis sativa as a narcotic – where applicant claims the law contradicts the Bible – where some criminal history for like offences – whether sentence manifestly excessive
Drugs Misuse Act 1986 (Qld)
R v McKay [1997] QCA 97; CA No 574 of 1996, 17 April 1997, considered Peter Till v Anthony Johns (Sergeant of Police) [2004] QCA 451; CA…