R v CAP - [2014] QCA 247

SUPREME COURT OF QUEENSLAND

CITATION:

R v CAP [2014] QCA 247

PARTIES:

R
v
CAP
(applicant)

FILE NO/S:

CA No 182 of 2014
DC No 241 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Cairns

DELIVERED EX TEMPORE ON:

2 October 2014

DELIVERED AT:

Brisbane

HEARING DATE:

2 October 2014

JUDGES:

Holmes and Gotterson JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Refuse application to extend time for leave to appeal against sentence.

2. Adjourn application to extend time to appeal against conviction to a date to be fixed.

3. Direct that Mr CAP file and serve any affidavit in support of that application by 23 October 2014.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – PROCEDURE – POWER OF COURT ON APPEAL – GENERALLY – where the applicant pleaded guilty to nine counts of rape, four counts of carnal knowledge against the order of nature and one count of assault occasioning bodily harm whilst armed – where the applicant was sentenced to an effective sentence of 19 years imprisonment – where there had previously been a hearing on the merits of an application for leave to appeal against sentence in which the court concluded the applicant could not succeed – where the formal order of the court in the previous hearing did not reflect the substance of the judgment – whether an extension of time for leave to appeal against sentence should be granted

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – GENERAL PRINCIPLES – where the applicant sought an extension of time to appeal against conviction – where the applicant’s material was insufficient to support the application – where the application was adjourned to allow the applicant to obtain advice and assistance in obtaining the affidavits to support the application

R v CAP[2009] QCA 174, related
R v Upson (No 2) (2013) 229 A Crim R 275; [2013] QCA 149, considered

COUNSEL:

The applicant appeared on his own behalf
D R Kinsella for the respondent

SOLICITORS:

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

MULLINS J: On 12 May 2008, Mr CAP pleaded guilty to 14 charges on an indictment in the District Court and was sentenced on 15 May 2008. For four counts of rape of his daughter (counts 1, 4, 6 and 7), he was sentenced to 19 years imprisonment. For two counts of rape of one niece, two counts of rape of a second niece and one count of rape of a third niece (counts 8, 10 to 12 and 14), he was sentenced to 17 years imprisonment. He was sentenced to 14 years imprisonment for four counts of carnal knowledge against the order of nature (counts 2, 5, 9 and 13) and seven years imprisonment…

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 CAP

Details

AGLC: R v CAP [2014] QCA 247
Case: [2014] QCA 247
Decision Date: 2 October 2014

CaseChat Overview and Summary

In the case of R v CAP, the applicant, who had pleaded guilty to serious criminal offences including rape, carnal knowledge, and assault occasioning bodily harm whilst armed, was sentenced to an effective term of 19 years imprisonment. The applicant sought an extension of time to appeal against both the sentence and the conviction, with the application being heard in the relevant appellate court. The central issue before the court was whether the applicant should be granted an extension of time to appeal against sentence, given the prior determination that the appeal would not succeed, and if the application for an extension of time to appeal against conviction was adequately supported.

The court considered the procedural history of the case, noting that the applicant had previously applied for leave to appeal against sentence, which was denied. The court also highlighted that the formal order did not accurately reflect the substance of the judgment, creating confusion about the applicant's right to appeal. The court then examined the applicant's material for the current application, finding it insufficient to support the appeal against conviction. Consequently, the court ruled that the application for an extension of time to appeal against sentence should be refused, while the application for an extension of time to appeal against conviction was adjourned to allow the applicant to obtain further affidavits.

The court's decision was based on the procedural requirements and the inadequacy of the applicant's material for the appeal against conviction. The court emphasised the importance of accurate and complete documentation in legal proceedings and ordered that the applicant file and serve any necessary affidavits by a specified date. This ruling underscores the stringent procedural requirements for appeals in criminal cases and the necessity for applicants to provide sufficient evidence to support their applications.

Orders

Orders of the court

1. Refuse application to extend time for leave to appeal against sentence.

2. Adjourn application to extend time to appeal against conviction to a date to be fixed.

3. Direct that Mr CAP file and serve any affidavit in support of that application by 23 October 2014.

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

Full text does not contain this section.

CITATION:	R v CAP [2014] QCA 247
PARTIES:	R v CAP (applicant)
FILE NO/S:	CA No 182 of 2014 DC No 241 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	District Court at Cairns
DELIVERED EX TEMPORE ON:	2 October 2014
DELIVERED AT:	Brisbane
HEARING DATE:	2 October 2014
JUDGES:	Holmes and Gotterson JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Refuse application to extend time for leave to appeal against sentence. 2. Adjourn application to extend time to appeal against conviction to a date to be fixed. 3. Direct that Mr CAP file and serve any affidavit in support of that application by 23 October 2014.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – PROCEDURE – POWER OF COURT ON APPEAL – GENERALLY – where the applicant pleaded guilty to nine counts of rape, four counts of carnal knowledge against the order of nature and one count of assault occasioning bodily harm whilst armed – where the applicant was sentenced to an effective sentence of 19 years imprisonment – where there had previously been a hearing on the merits of an application for leave to appeal against sentence in which the court concluded the applicant could not succeed – where the formal order of the court in the previous hearing did not reflect the substance of the judgment – whether an extension of time for leave to appeal against sentence should be granted CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – GENERAL PRINCIPLES – where the applicant sought an extension of time to appeal against conviction – where the applicant’s material was insufficient to support the application – where the application was adjourned to allow the applicant to obtain advice and assistance in obtaining the affidavits to support the application R v CAP[2009] QCA 174, related R v Upson (No 2) (2013) 229 A Crim R 275; [2013] QCA 149, considered
COUNSEL:	The applicant appeared on his own behalf D R Kinsella for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent