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R v Chardon

R v Chardon

Case [2020] QCA 277 8 December 2020

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Chardon [2020] QCA 277

PARTIES:

R
v
CHARDON, John William
(appellant/applicant)

FILE NO/S:

CA No 263 of 2019
SC No 801 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 9 September 2019; Date of Sentence: 11 September 2019 (Lyons SJA)

DELIVERED ON:

8 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

16 April 2020

JUDGES:

Fraser and Mullins JJA and Applegarth J

ORDER:

The appeal against conviction and the application for leave to appeal against sentence are dismissed on the ground that the Court’s jurisdiction to determine the appeal and application ceased upon the death of the appellant.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHO MAY EXERCISE RIGHT – LEGAL PERSONAL REPRESENTATIVE – where the appellant was found guilty after a trial of the manslaughter of his wife and sentenced to 15 years’ imprisonment – where the appellant filed a notice of appeal against conviction and an application for leave to appeal against sentence – where the appellant died after the appeal was heard but before judgment was delivered – where the executors named in the appellant’s will have indicated that they do not wish to pursue the appeal – where the solicitor and counsel who represented the appellant in his appeal seek leave to appear amici curiae – whether the appeal and application should be dismissed upon the ground that the Court does not retain jurisdiction to determine them after the appellant’s death or whether the Court should give judgment according to the merits of the conviction appeal

Criminal Code (Qld), s 668D, s 668E, s 669, s 671B, s 671D, s 672, s 672A
Uniform Civil Procedure Rules 1999 (Qld), r 72, r 73

A reference by the Attorney General for the State of New South Wales under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001re the conviction of Frederick Lincoln McDermott (2013) 231 A Crim R 183; [2013] NSWCCA 102, cited
Bell (Dec) v The State of Western Australia [2015] WASCA 236, applied
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9, cited
Helton v Allen (1940) 63 CLR 691; [1940] HCA 20, cited
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32, cited
Pike v Pike [2015] QSC 134, cited
Quartermaine v The Queen [2002] WASCA 345, applied
R v Jefferies [1969] 1 QB 120, considered
R v Kearley(No 2) [1994] 2 AC 414, applied
R v Rimon (decd) (2003) 6 VR 553; [2003] VSCA 136, applied
R v Rowe [1955] 1 QB 573, considered
R v Smith [2004] 1 SCR 385; [2004] SCC 14, not followed
Roe (Dec) v The State of Western Australia [2017] WASCA 218, applied
Sen v The Queen (1991) 30 FCR 173;

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 Chardon

Details

AGLC: R v Chardon [2020] QCA 277
Case: [2020] QCA 277
Decision Date: 8 December 2020

CaseChat Overview and Summary

The case of R v Chardon involved the appellant, who had been found guilty of manslaughter and sentenced to 15 years’ imprisonment. Following his conviction, the appellant lodged both a notice of appeal against his conviction and an application for leave to appeal against his sentence. However, the appellant passed away before the judgment was delivered on these matters. The executors of the appellant's will subsequently indicated that they did not wish to pursue the appeal. The solicitor and counsel who had represented the appellant in the appeal sought leave to appear as amici curiae. The central legal issue before the court was whether it should dismiss the appeal and application on the basis that it no longer had jurisdiction to determine them after the appellant's death, or whether it should proceed to give judgment according to the merits of the conviction appeal.

The court determined that its jurisdiction to hear and determine the appeal and application ceased upon the death of the appellant. It held that once an appellant dies, the legal personal representative, in this case the executors of the will, becomes the sole party with the right to pursue the appeal. Since the executors had explicitly stated they did not wish to proceed with the appeal, and no other party had standing to continue the appeal, the court concluded it had no jurisdiction to hear the matter on its merits. The court found that the solicitor and counsel, while they had represented the appellant, did not have standing to continue the appeal as amici curiae after the appellant's death. Consequently, the appeal against conviction and the application for leave to appeal against sentence were dismissed.

Orders

Orders of the court

The appeal against conviction and the application for leave to appeal against sentence are dismissed on the ground that the Court’s jurisdiction to determine the appeal and application ceased upon the death of the appellant.

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.

Citations

AGLC Citation

R v Chardon [2020] QCA 277

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 24 of 24 shown

TWM v The Queen
[2018] NSWCCA 276 Para 7

…ate of the deceased) which might be impacted by the decision in the appeal, and whether it is in the interests of justice to determine the appeal. [7][2018] NSWCCA 276.…
Roe (Dec) v The State of Western Australia
[2017] WASCA 218 Para 1

…02] WASCA 345 at [3] (Parker and Hasluck JJ and Olsson AUJ). [22][2015] WASCA 236 at [9] (McLure P, Buss and Mazza JJA agreeing). [23][2017] WASCA 218 (Buss P and Mazza and Beech JJA).…
NH v Director of Public Prosecutions (SA)
[2016] HCA 33 Para 3

…which is to be found in the Criminal Code . [25]See, for example, Harris v Caladine (1991) 172 CLR 84 at 136; NH v Director of Public Prosecutions (2016) 260 CLR 546 at 580 – 581 [68] (French CJ, Kiefel and Bell JJ); Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 59…
Bell (Dec) v The State of Western Australia
[2015] WASCA 236 Para 5

…of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991.[4] [1](2003) 6 VR 553. [2][2002] WASCA 345. [3][2015] WASCA 236. [4] Prosecutor v Rasim Delić , Case No. IT-04-83-A, Decision on the Outcome of the Proceedings, 29 June 2010.…
Pike v Pike
[2015] QSC 134 Para 8

…submit that in these circumstances the Court should determine the first ground of the conviction appeal and deliver judgment. [8]See Pike v Pike [2015] QSC 134 at [10] – [23] and the authorities there cited.…
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd
[2015] HCA 7 Para 5

…en (1940) 63 CLR 691 at 710 (Dixon, Evatt and McTiernan JJ); see also Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 at 371 [32] (French CJ, Hayne, Kiefel, Bell and Keane JJ); Wiedenhofer v Commonwealth (1970) 122 CLR 172 at 175 – 176 (Gibbs J); and Harvey v Attorney-Gene…
Harvey v Attorney-General (Qld)
[2014] QCA 146 Para 5

…CLR 352 at 371 [32] (French CJ, Hayne, Kiefel, Bell and Keane JJ); Wiedenhofer v Commonwealth (1970) 122 CLR 172 at 175 – 176 (Gibbs J); and Harvey v Attorney-General (Qld) (2011) 220 A Crim R 186 at 188 – 189 [10] – [11] (McMurdo P) and at 194 – 195 [32] (Boddice J, White JA agreeing).…
re the conviction of Frederick Lincoln McDermott
[2013] NSWCCA 102 Para 8

…sed person to the Court of Criminal Appeal and required the Court to determine the reference notwithstanding the death of the convicted person. [30][2013] NSWCCA 102; see in particular at [17] – [21].…
Batistatos v Roads and Traffic Authority of New South Wales
[2006] HCA 27 Para 3

…inees Pty Ltd (2001) 204 CLR 559 at 590 [64] (Gleeson CJ, Gaudron and Gummow JJ); and Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at 263 [5] (Gleeson CJ, Gummow, Hayne and Crennan JJ). [26]See, for example, Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 238 (Br…
R v Rimon (dec'd)
[2003] VSCA 136

…v Jefferies [1969] 1 QB 120, considered R v Kearley (No 2) [1994] 2 AC 414, applied R v Rimon (decd) (2003) 6 VR 553; [2003] VSCA 136, applied R v Rowe [1955] 1 QB 573, considered R v Smith [2004] 1 SCR 385; [2004] SCC 14, not followed Roe (Dec) v The State of Western Australia [2017] WASCA 218, applied Sen v The…
Quartermaine v The Queen
[2002] WASCA 345 Para 5

…or Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991.[4] [1](2003) 6 VR 553. [2][2002] WASCA 345. [3][2015] WASCA 236. [4] Prosecutor v Rasim Delić , Case No. IT-04-83-A, Decision on the Outcome of the Proceedings, 29 June 2010.…
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd
[2001] HCA 1 Para 3

…(2016) 260 CLR 546 at 580 – 581 [68] (French CJ, Kiefel and Bell JJ); Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 590 [64] (Gleeson CJ, Gaudron and Gummow JJ); and Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at 263 [5] (Gleeson C…
Sen v The Queen
[2000] HCATrans 403 Para 18

…that there was “no suggestion in the present case that the outcome of the appeal will have any effect on the appellant’s estate”. [17](1991) 30 FCR 173 at 174 – 175. [18] Re Collins (1973) 41 DLR (3d) 232.…
Sen v The Queen
[1991] FCA 424

…th [2004] 1 SCR 385; [2004] SCC 14, not followed Roe (Dec) v The State of Western Australia [2017] WASCA 218, applied Sen v The Queen (1991) 30 FCR 173; [1991] FCA 296, applied TWM v R [2018] NSWCCA 276, considered Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55, cited COUNSEL: A Glynn QC, with A J…
Saffron, A.G. v Commissioner of Taxation
[1991] FCA 296

…not followed Roe (Dec) v The State of Western Australia [2017] WASCA 218, applied Sen v The Queen (1991) 30 FCR 173; [1991] FCA 296, applied TWM v R [2018] NSWCCA 276, considered Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55, cited COUNSEL: A Glynn QC, with A J Kimmins and M L Longhurst,…
Harris v Caladine
[1991] HCA 9

…102, cited Bell (Dec) v The State of Western Australia [2015] WASCA 236, applied Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9, cited Helton v Allen (1940) 63 CLR 691; [1940] HCA 20, cited Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32, cited Pike v Pike [2015] QSC 134, cit…
Voth v Manildra Flour Mills Pty Ltd
[1990] HCA 55

…[1991] FCA 296, applied TWM v R [2018] NSWCCA 276, considered Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55, cited COUNSEL: A Glynn QC, with A J Kimmins and M L Longhurst, for the appellant/applicant T A Fuller QC, with D Balic, for the respondent SOLICITORS: Paddington Law for the appell…
Oceanic Sun Line Special Shipping Co inc v Fay
[1988] HCA 32

…on v Allen (1940) 63 CLR 691; [1940] HCA 20, cited Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32, cited Pike v Pike [2015] QSC 134, cited Quartermaine v The Queen [2002] WASCA 345, applied R v Jefferies [1969] 1 QB 120, considered R v Kearley (No 2) [1994] 2 AC 414, applied R v…
Wiedenhofer v Commonwealth
[1970] HCA 54 Para 5

…Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 at 371 [32] (French CJ, Hayne, Kiefel, Bell and Keane JJ); Wiedenhofer v Commonwealth (1970) 122 CLR 172 at 175 – 176 (Gibbs J); and Harvey v Attorney-General (Qld) (2011) 220 A Crim R 186 at 188 – 189 [10] – [11] (McMurdo P) and at 194 – 195 [32] (Boddice J,…
Helton v Allen
[1940] HCA 20

…[2015] WASCA 236, applied Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9, cited Helton v Allen (1940) 63 CLR 691; [1940] HCA 20, cited Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32, cited Pike v Pike [2015] QSC 134, cited Quartermaine v The Queen [2002] WASCA 345, applied R…
[1969] 1 QB 120
[1969] 1 QB 120 Para 15

…risdiction given by a statute) take the appropriate steps to have themselves substituted for the deceased as a party to the proceedings”.[13] [12][1969] 1 QB 120. [13][1969] 1 QB 120 at 124.…
[1994] 2 AC 414
[1994] 2 AC 414 Para 17

…the law, and it “accords entirely with the natural construction of the relevant sections and, in my view, accurately states the law”.[16] [15][1994] 2 AC 414. [16][1994] 2 AC 414 at 422.…
[1955] 1 QB 573
[1955] 1 QB 573 Para 14

…he judgment was a sentence of imprisonment and the prisoner [had] died”.[11] The application for leave to appeal was therefore refused. [10][1955] 1 QB 573. [11][1955] 1 QB 573 at 575.…
[2004] 1 SCR 385
[2004] 1 SCR 385 Para 6

…the appellant provided his affidavit which makes it clear that the executors named in the appellant’s will do not wish to pursue the appeal. [5][2004] 1 SCR 385; 2004 SCC 14. [6][2004] 1 SCR 385 at 390 (Binnie J).…

Legislation cited in this decision · 8

Corrective Services Act 2006 (Qld)
1 mention (from Para 10)
Crimes (Appeal and Review) Act 2001 (NSW)
1 mention (from Para 8)
Crimes Act 1958 (Vic)
1 mention (from Para 19)
Criminal Appeal Act 1907 (UK)
1 mention (from Para 15)
Criminal Appeals Act 2004 (WA)
1 mention (from Para 1)
Criminal Injuries Compensation Act 1983 (ACT)
1 mention (from Para 18)
Federal Court of Australia Act 1976 (Cth)
1 mention (from Para 18)
Uniform Civil Procedure Rules 1999 (Qld)
72 1 mention

CITATION:	R v Chardon [2020] QCA 277
PARTIES:	R v CHARDON, John William (appellant/applicant)
FILE NO/S:	CA No 263 of 2019 SC No 801 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 9 September 2019; Date of Sentence: 11 September 2019 (Lyons SJA)
DELIVERED ON:	8 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	16 April 2020
JUDGES:	Fraser and Mullins JJA and Applegarth J
ORDER:	The appeal against conviction and the application for leave to appeal against sentence are dismissed on the ground that the Court’s jurisdiction to determine the appeal and application ceased upon the death of the appellant.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHO MAY EXERCISE RIGHT – LEGAL PERSONAL REPRESENTATIVE – where the appellant was found guilty after a trial of the manslaughter of his wife and sentenced to 15 years’ imprisonment – where the appellant filed a notice of appeal against conviction and an application for leave to appeal against sentence – where the appellant died after the appeal was heard but before judgment was delivered – where the executors named in the appellant’s will have indicated that they do not wish to pursue the appeal – where the solicitor and counsel who represented the appellant in his appeal seek leave to appear amici curiae – whether the appeal and application should be dismissed upon the ground that the Court does not retain jurisdiction to determine them after the appellant’s death or whether the Court should give judgment according to the merits of the conviction appeal Criminal Code (Qld), s 668D, s 668E, s 669, s 671B, s 671D, s 672, s 672A Uniform Civil Procedure Rules 1999 (Qld), r 72, r 73 A reference by the Attorney General for the State of New South Wales under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001re the conviction of Frederick Lincoln McDermott (2013) 231 A Crim R 183; [2013] NSWCCA 102, cited Bell (Dec) v The State of Western Australia [2015] WASCA 236, applied Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9, cited Helton v Allen (1940) 63 CLR 691; [1940] HCA 20, cited Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32, cited Pike v Pike [2015] QSC 134, cited Quartermaine v The Queen [2002] WASCA 345, applied R v Jefferies [1969] 1 QB 120, considered R v Kearley(No 2) [1994] 2 AC 414, applied R v Rimon (decd) (2003) 6 VR 553; [2003] VSCA 136, applied R v Rowe [1955] 1 QB 573, considered R v Smith [2004] 1 SCR 385; [2004] SCC 14, not followed Roe (Dec) v The State of Western Australia [2017] WASCA 218, applied Sen v The Queen (1991) 30 FCR 173;