R v C'Ward - [2014] QCA 15

SUPREME COURT OF QUEENSLAND

CITATION:

R v C'Ward [2014] QCA 15

PARTIES:

R
v
C'WARD, Marlon Douglas
(applicant)

FILE NO/S:

CA No 285 of 2013
SC No 77 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

14 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

4 February 2014

JUDGES:

Margaret McMurdo P and Fraser JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for an extension of time within which to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL – where the applicant plead guilty to trafficking methylamphetamine, ecstasy and cannabis between April and November 2010 – where the applicant was sentenced to five years imprisonment with parole eligibility fixed after 20 months – where the application for leave to appeal against sentence was not filed within statutory time limit – where the applicant accepted counsel's advice to plead guilty – where the applicant submits the prosecutor erred in submissions by referring to the wrong co-offender – whether there was a satisfactory explanation for delay – whether prosecutor's error material – whether there are real prospects of success

COUNSEL:

The applicant appeared on his own behalf
P J McCarthy for the respondent

SOLICITORS:

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

MARGARET McMURDO P: The applicant pleaded guilty on 6 February 2013 to trafficking in methylamphetamine, ecstasy and cannabis between 26 April and 6 November 2010. He was sentenced to five years imprisonment with parole eligibility fixed on 3 October 2014, that is, after 20 months. He did not file an application for leave to appeal against sentence within the statutory time limit. He signed a notice of application for an extension of time within which to apply for leave to appeal against his sentence on 31 October 2013 but did not file it until 11 November 2013, about eight months out of time. If granted the extension of time, he seeks leave to appeal against his sentence on the ground that it was conducted on a wrong basis concerning submissions made about the person Hollis, a co-offender in the trafficking business.

The applicant has the onus of demonstrating grounds for granting the extension of time. To succeed, he should provide a satisfactory explanation for the lengthy delay and establish that he has at least some prospects of success in the proposed appeal.

He submits that he has only recently received transcripts which show that matters put forward at his sentencing were wrong and that his sentencing was conducted on a false basis. He further claims (without supporting evidence) that his lawyers did not tell him that he could appeal. He became aware of his rights only when advised by other inmates in August or early September. It then took him some time to…

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 C'Ward

Details

AGLC: R v C'Ward [2014] QCA 15
Case: [2014] QCA 15
Decision Date: 14 February 2014

CaseChat Overview and Summary

The case of R v C'Ward involved an applicant who had pleaded guilty to trafficking methylamphetamine, ecstasy, and cannabis between April and November 2010. The applicant was sentenced to five years in prison with parole eligibility fixed after 20 months. The applicant subsequently filed an application for leave to appeal against the sentence, which was beyond the statutory time limit. The applicant contended that the delay in filing the appeal was due to the acceptance of counsel's advice to plead guilty and that there was a satisfactory explanation for the delay. Additionally, the applicant argued that the prosecutor's error in referring to the wrong co-offender during submissions was material and that there were real prospects of success on appeal.

The legal issues before the court were whether there was a satisfactory explanation for the delay in filing the application for leave to appeal, whether the prosecutor's error was material, and whether there were real prospects of success on appeal. The court had to consider whether the applicant's reasons for the delay were sufficient to warrant an extension of time and whether the prosecutor's error had a significant impact on the appeal's outcome. Furthermore, the court needed to assess whether the appeal had real prospects of success.

The court held that the applicant's reasons for the delay were insufficient to warrant an extension of time. The court found that the applicant's reliance on counsel's advice to plead guilty did not constitute a satisfactory explanation for the delay in filing the appeal. The court also determined that the prosecutor's error in referring to the wrong co-offender was not material to the appeal's outcome. Finally, the court concluded that the appeal did not have real prospects of success, as the sentence imposed was within the appropriate range for the offence committed.

Accordingly, the application for an extension of time within which to appeal against the sentence was refused. The court found that the applicant had not provided a satisfactory explanation for the delay, that the prosecutor's error was not material, and that there were no real prospects of success on appeal.

Orders

Orders of the court

Application for an extension of time within which to appeal against sentence is 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 C'Ward [2014] QCA 15
PARTIES:	R v C'WARD, Marlon Douglas (applicant)
FILE NO/S:	CA No 285 of 2013 SC No 77 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	14 February 2014
DELIVERED AT:	Brisbane
HEARING DATE:	4 February 2014
JUDGES:	Margaret McMurdo P and Fraser JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for an extension of time within which to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL – where the applicant plead guilty to trafficking methylamphetamine, ecstasy and cannabis between April and November 2010 – where the applicant was sentenced to five years imprisonment with parole eligibility fixed after 20 months – where the application for leave to appeal against sentence was not filed within statutory time limit – where the applicant accepted counsel's advice to plead guilty – where the applicant submits the prosecutor erred in submissions by referring to the wrong co-offender – whether there was a satisfactory explanation for delay – whether prosecutor's error material – whether there are real prospects of success
COUNSEL:	The applicant appeared on his own behalf P J McCarthy for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent