R v Carney - [2009] QCA 133

SUPREME COURT OF QUEENSLAND

CITATION:

R v Carney [2009] QCA 133

PARTIES:

R
v
CARNEY, Meryl Carolyn
(applicant)

FILE NO/S:

CA No 33 of 2009
DC No 229 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence and Conviction)

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

22 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

11 May 2009

JUDGE:

McMurdo P, Fraser and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for an extension of time to appeal is refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – applicant was convicted after pleading guilty to two counts of stealing and one count of dangerous driving – applicant was sentenced to 12 months imprisonment suspended after two months – applicant applies for an extension of time to appeal against her conviction and sentence, two and a half years out of time – applicant submits that fresh evidence is available that highlights her innocence – whether an extension of time should be granted

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEAS – PARTICULAR CASES – applicant convicted of sentences after pleading guilty and was represented at trial by an experienced criminal barrister – applicant submits that she only pleaded guilty because she was not in a good mental state – applicant submits that fresh evidence is available that highlights her innocence – whether an appeal should be allowed

Criminal Code 1899 (Qld), s 25

Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, cited
R v Gadaloff [1999] QCA 286, cited
R v Katsidis; ex parte A-G (Qld) [2005] QCA 229, cited
R v MacKenzie [2002] 1 Qd R 410; [2000] QCA 324, cited

COUNSEL:

P F Rutledge for the respondent

SOLICITORS:

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

McMURDO P: This application for an extension of time to appeal should be refused. These are my reasons.

The applicant, Meryl Carolyn Carney, was convicted after pleading guilty on 19 June 2006 of two counts of stealing (counts 1 and 2) and one count of dangerous operation of a motor vehicle (count 3). She was sentenced on count 3 to 12 months imprisonment suspended after two months with an operational period of 12 months, and on counts 1 and 2 to six months imprisonment suspended after two months with an operational period of six months. All the offences occurred on 26 September 2005. On 23 February 2009, over two and a half years out of time, Ms Carney applied for an extension of time to appeal against her conviction and sentence.

Ms Carney's contentions

Prior to the hearing of this matter, Ms Carney, who is representing herself in this application, provided over 200 pages of material to the Court in support…

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 Carney

Details

AGLC: R v Carney [2009] QCA 133
Case: [2009] QCA 133
Decision Date: 22 May 2009

CaseChat Overview and Summary

In the matter of R v Carney, the applicant sought an extension of time to appeal against her conviction and sentence for two counts of stealing and one count of dangerous driving. The applicant had pleaded guilty and was sentenced to 12 months imprisonment, suspended after two months. The applicant sought an extension of time to appeal, arguing that fresh evidence had come to light that highlighted her innocence. The court was required to determine whether the applicant was entitled to an extension of time to appeal and, if so, whether an appeal should be allowed.

The applicant submitted that she had only pleaded guilty due to her poor mental state at the time and that fresh evidence now existed which suggested her innocence. The court examined the legal principles governing extensions of time for appeals in cases where the applicant had pleaded guilty and was represented by experienced counsel. The court also considered the availability of fresh evidence and the potential impact on the fairness of the original proceedings. Ultimately, the court found that the applicant had not demonstrated any exceptional circumstances that warranted an extension of time. The court concluded that the applicant had been represented by an experienced criminal barrister and had voluntarily pleaded guilty. Additionally, the court found that the fresh evidence did not sufficiently undermine the integrity of the original proceedings.

The court refused the application for an extension of time to appeal. The court held that the applicant had not provided compelling reasons to justify an extension of time. The court found that the applicant had not demonstrated any exceptional circumstances that warranted an extension of time, and the fresh evidence did not sufficiently undermine the integrity of the original proceedings. The application was dismissed, and the applicant's conviction and sentence stood.

Orders

Orders of the court

The application for an extension of time to appeal 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 Carney [2009] QCA 133
PARTIES:	R v CARNEY, Meryl Carolyn (applicant)
FILE NO/S:	CA No 33 of 2009 DC No 229 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence and Conviction)
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	22 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	11 May 2009
JUDGE:	McMurdo P, Fraser and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for an extension of time to appeal is refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – applicant was convicted after pleading guilty to two counts of stealing and one count of dangerous driving – applicant was sentenced to 12 months imprisonment suspended after two months – applicant applies for an extension of time to appeal against her conviction and sentence, two and a half years out of time – applicant submits that fresh evidence is available that highlights her innocence – whether an extension of time should be granted CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEAS – PARTICULAR CASES – applicant convicted of sentences after pleading guilty and was represented at trial by an experienced criminal barrister – applicant submits that she only pleaded guilty because she was not in a good mental state – applicant submits that fresh evidence is available that highlights her innocence – whether an appeal should be allowed Criminal Code 1899 (Qld), s 25 Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, cited R v Gadaloff [1999] QCA 286, cited R v Katsidis; ex parte A-G (Qld) [2005] QCA 229, cited R v MacKenzie [2002] 1 Qd R 410; [2000] QCA 324, cited
COUNSEL:	P F Rutledge for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent