R v. Clayton - [2008] QCA 337

SUPREME COURT OF QUEENSLAND

CITATION:

R v Clayton [2008] QCA 337

PARTIES:

R
v
CLAYTON, Sean Stewart
(applicant)

FILE NO/S:

CA No 188 of 2008
SC No 25 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence and Conviction)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

27 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

27 October 2008

JUDGES:

de Jersey CJ, White AJA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE AND CONVICTION – where the applicant was convicted of murder – where the applicant filed an appeal against conviction on 13 October 2003, then on 24 February 2004 filed a notice of abandonment – where the abandonment reflected a deliberate and informed decision on the part of the applicant – where the applicant now seeks to have the notice of abandonment set aside – whether it can be shown to the Court that a setting aside of the abandonment and reinstatement of the appeal would be necessary in the interests of justice

Criminal Practice Rules 1999 (Qld), r 70

R v Tabe [1983] 2 Qd R 60; (1983) 6 A Crim R 474, applied

COUNSEL:

The applicant appeared on his own behalf
D L Meredith for the respondent

SOLICITORS:

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

THE CHIEF JUSTICE: On 14 September 2003, the applicant, who represented himself before us today, was convicted of a murder committed on or about 25 November 2001. The applicant is presently 37 years of age.

On 13 October 2003, the applicant filed an appeal against that conviction. That was filed within time. Then on 24 February 2004, he filed a notice of abandonment of that appeal, the notice having been signed by him.

On 16 July 2008 the applicant filed an application for an extension of time within which to appeal against his conviction. The application, as will have been noted, was brought more than five years after the conviction.

Because of the notice of abandonment of the appeal against conviction which was filed on the 24 February 2004, that appeal was taken then to have been dismissed, because of the operation of Rule 70(2) of the Criminal Practice Rules. The Court may set aside that abandonment and reinstate the appeal should that be necessary in the interests of justice because of Rule 70(3). That is an unusual course which would not ordinarily be taken where the abandonment reflected a deliberate and informed decision on the part of the applicant, and was not the result of any misapprehension or mistake of fact (see Tabe [1983] 2 Qd R 60 at 61).

It is appropriate to approach the application for an extension of time on the basis that what the applicant…

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. Clayton

Details

AGLC: R v Clayton [2008] QCA 337
Case: [2008] QCA 337
Decision Date: 27 October 2008

CaseChat Overview and Summary

The applicant, Clayton, appealed against his conviction and sentence for murder. He initially filed an appeal against the conviction on 13 October 2003. However, on 24 February 2004, Clayton filed a notice of abandonment of the appeal, which was a deliberate and informed decision on his part. Clayton now seeks to have the notice of abandonment set aside. The question for the court was whether it could be shown that setting aside the abandonment and reinstating the appeal would be necessary in the interests of justice.

The court considered the circumstances under which Clayton filed the notice of abandonment and whether there were any compelling reasons to set it aside. The court noted that Clayton had initially decided to abandon the appeal after careful consideration and that there was no evidence to suggest that the decision was made under any duress or without full understanding. The court held that the interests of justice did not require the abandonment to be set aside. The applicant had made a deliberate decision to abandon the appeal, and there was no evidence that reinstating the appeal would serve the interests of justice.

Accordingly, the court dismissed Clayton's application to set aside the notice of abandonment. The appeal against the conviction and sentence for murder remained abandoned, and no further action would be taken regarding the appeal.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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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

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CITATION:	R v Clayton [2008] QCA 337
PARTIES:	R v CLAYTON, Sean Stewart (applicant)
FILE NO/S:	CA No 188 of 2008 SC No 25 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence and Conviction)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	27 October 2008
DELIVERED AT:	Brisbane
HEARING DATE:	27 October 2008
JUDGES:	de Jersey CJ, White AJA and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE AND CONVICTION – where the applicant was convicted of murder – where the applicant filed an appeal against conviction on 13 October 2003, then on 24 February 2004 filed a notice of abandonment – where the abandonment reflected a deliberate and informed decision on the part of the applicant – where the applicant now seeks to have the notice of abandonment set aside – whether it can be shown to the Court that a setting aside of the abandonment and reinstatement of the appeal would be necessary in the interests of justice Criminal Practice Rules 1999 (Qld), r 70 R v Tabe [1983] 2 Qd R 60; (1983) 6 A Crim R 474, applied
COUNSEL:	The applicant appeared on his own behalf D L Meredith for the respondent
SOLICITORS:	The appellant appeared on his own behalf Office of the Director of Public Prosecutions (Queensland) for the respondent