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R v Cockrell

R v Cockrell

Case [2015] QCA 73 1 May 2015

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Cockrell [2015] QCA 73

PARTIES:

R
v
COCKRELL, Marcus Geoffrey
(applicant)

FILE NO/S:

CA No 233 of 2014
DC No 2756 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

1 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2015

JUDGES:

Gotterson and Morrison JJA and Jackson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application is refused.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – OTHER MATTERS – where the applicant entered a plea of guilty to an ex-officio indictment containing 19 offences – where four of the offences were under the Criminal Code (Qld), and the remaining 15 were under the Criminal Code 1995 (Cth) – where the indictment had been signed by a person who was authorised to do so in respect of both Commonwealth and Queensland counts – where however, the indictment had not been presented by a person who was authorized to present the indictment in respect of the Queensland counts – where in an earlier appeal the applicant was granted an extension of time to appeal against his conviction for the Queensland counts – where the Court set aside the pleas of guilty and convictions in respect of the Queensland counts – whether there was a valid indictment – whether there was a miscarriage of justice in considering the invalid counts at the same time as the Commonwealth counts

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant entered a plea of guilty in 2003 – where within time the applicant applied for leave to appeal against the sentence imposed – where that application was abandoned – where in 2004 the applicant was granted an extension of time to appeal the conviction in relation to the Queensland counts – where that appeal was successful – where in 2005 the applicant filed a second application for an extension of time to appeal the sentence imposed – where that application was refused – where in 2009 the applicant made a third application for extension of time to appeal the sentence – where that application was refused – where the applicant now, eleven years after his conviction seeks leave to appeal against the conviction on the Commonwealth counts – whether there is an adequate explanation for the delay – whether there are merits of the proposed appeal – whether there is a good reason to relieve the applicant of the consequences of not filing in time

Criminal Code (Qld), s 560, s 561, s 564, s 567(2), s 597C, s 604(1), s 668D

Alphapharm Pty Ltd v H Lundbeck A/S (2014) 89 ALJR 1; (2014) 314 ALR 182; [2014] HCA 42, cited
Beil v Mansell (No 1) [2006] 2 Qd R 199; [2006] QCA 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 Cockrell

Details

AGLC: R v Cockrell [2015] QCA 73
Case: [2015] QCA 73
Decision Date: 1 May 2015

CaseChat Overview and Summary

The case of R v Cockrell involved the defendant, who had entered a plea of guilty to an ex-officio indictment containing 19 offences. Four of these offences were under the Criminal Code (Qld), and the remaining 15 were under the Criminal Code 1995 (Cth). The key issues before the court were whether there was a valid indictment and whether there was a miscarriage of justice in considering the invalid counts at the same time as the Commonwealth counts.

The court found that the indictment had been signed by a person who was authorised to do so in respect of both Commonwealth and Queensland counts, however, it had not been presented by a person who was authorized to present the indictment in respect of the Queensland counts. In an earlier appeal, the applicant was granted an extension of time to appeal against his conviction for the Queensland counts, and the Court set aside the pleas of guilty and convictions in respect of the Queensland counts. The court concluded that the delay in appealing the conviction on the Commonwealth counts was serious, amounting to nearly eleven years from conviction, and more than nine years after his first appeal, and there was no satisfactory explanation for it.

The application for leave to appeal against the conviction on the Commonwealth counts was refused. The court held that there was no good reason to relieve Mr Cockrell of the consequences of his not filing in time, and the delay was very serious. The point he wished to raise had been raised before, in Cockrell No 1, and his appeal rights had been exhausted. In any event the point was one that had been known to Mr Cockrell for at least six years. Furthermore, under a plea agreement with the Commonwealth he entered a plea of guilty to all nineteen counts on the original indictment with open eyes and the benefit of legal advice.

Orders

Orders of the court

The application is refused.

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

I can see no good reason to relieve Mr Cockrell of the consequences of his not filing in time. The delay is very serious, amounting to nearly eleven years from conviction, and more than nine years after his first appeal, and there is no satisfactory explanation for it. A substantial part of the delay has been deliberate, while Mr Cockrell explored other avenues to achieve his aim. The point he wishes to raise has been raised before, in Cockrell No 1, and his appeal rights have been exhausted. In any event the point is one that has been known to Mr Cockrell for at least six years. Furthermore, under a plea agreement with the Commonwealth[52] he entered a plea of guilty to all nineteen counts on the original indictment with open eyes and the benefit of legal advice.[52]Application in CA 176/09, filed 15 July 2009, paragraph 1; Cockrell No 1 at [25]; Cockrell No 3, at [3].Conclusion For the reasons expressed above I would refuse the application. JACKSON J: I agree with Morrison JA.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v Cockrell [2015] QCA 73

Most Recent Citation

Ozgen v R [2021] NSWCCA 252

Cases Citing This Decision

Ozgen v R [2021] NSWCCA 252
Citation 1 (Para 36)

…To like effect is the decision of the Queensland Court of Appeal in R v Cockrell [2015] QCA 73; 250 A Crim R 364. The leading judgment was given by Morrison JA, with whom Gotterson JA and Jackson J agreed. There the indictment contained 19 offences, 4 offences under the Queensland Criminal Code and 15 under the…

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Cases Cited

R v Cartwright [2018] ACTSC 132
Citation 1 (Para 22)

…300. [33] R v Keogh [2007] SASC 226 at [78]; AN (No 2) v The Queen [2006] NSWCCA 218, at [41]-[42]. [34] Grierson per Dixon J at 437; R v Cartwright (1989) 17 NSWLR 243 at 246; R v Andrews [2005] SASC 107, at [14].…
R v An (No 2) [2015] NSWSC 308
Citation 2

…98] HCA 28, cited Queensland Trustees Limited v Fawckner [1964] Qd R 153, cited R v AN (No 2) (2006) 66 NSWLR 523; (2006) 163 A Crim R 133; [2006] NSWCCA 218, cited R v Andrews [2005] SASC 107, cited R v Cartwright (1989) 17 NSWLR 243, cited R v Cockrell; ex parte Cth DPP [2005] 2 Qd R 448; [2005] QCA 59, related R v…
Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42
Citation 3

…, s 560, s 561, s 564, s 567(2), s 597C, s 604(1), s 668D Alphapharm Pty Ltd v H Lundbeck A/S (2014) 89 ALJR 1; (2014) 314 ALR 182; [2014] HCA 42, cited Beil v Mansell (No 1) [2006] 2 Qd R 199; [2006] QCA 173, cited Chapman v State of Queensland [2003] QCA 172, cited Grierson v The King (1938) 60 CLR 431; [1938] HC…
R v Stanley [2014] QCA 116
Citation 4 (Para 21)

…hausted,[30] a fact pointed out by this Court as long ago as 2005, in Cockrell No 2 . [30] Grierson v R (1938) 60 CLR 431 ( Grierson ); R v Stanley [2014] QCA 116 at [1], [10]-[13] ( Stanley ).…
Morgan v R (No 2) [2013] NSWCCA 80
Citation 5 (Para 6)

…simply follows from the plain wording of the text in each case, in context. [43] R v LT at [27]-[29]. [44] R v Landy [1943] VLR 73; Morgan v R (No 2) [2013] NSWCCA 80, at [28]-[37]; R v Dang [2010] VSCA 13 at [40] fn 12. [45] R v LT at [33]. The orders in Cockrell No 1.…
R v Riera [2011] QCA 77
Citation 6 (Para 17)

…n. Deliberate delay tells against the exercise of the discretion in Mr Cockrell’s favour.[28] [28] R v DAQ [2008] QCA 75, at [10]-[12]; R v Riera [2011] QCA 77, at [16], [22].…
R v Dang; R v Dang [2010] VSCA 13
Citation 7 (Para 6)

…the text in each case, in context. [43] R v LT at [27]-[29]. [44] R v Landy [1943] VLR 73; Morgan v R (No 2) [2013] NSWCCA 80, at [28]-[37]; R v Dang [2010] VSCA 13 at [40] fn 12. [45] R v LT at [33]. The orders in Cockrell No 1.…
R v Cockrell [2009] QCA 315
Citation 8 (Para 7)

…stice when Mr Cockrell was arrested in 2005, following completion of his parole. That application was refused.[5] [5] R v Cockrell ; ex parte Cth DPP [2009] QCA 315. ( Cockrell No 3 ).…
R v Daq [2008] QCA 75
Citation 9 (Para 17)

…part to delay bringing this application. Deliberate delay tells against the exercise of the discretion in Mr Cockrell’s favour.[28] [28] R v DAQ [2008] QCA 75, at [10]-[12]; R v Riera [2011] QCA 77, at [16], [22].…
R v Keogh [2007] SASC 226
Citation 10 (Para 22)

…1989) 166 CLR 409, at 414-415; Pantorno v The Queen (1989) 166 CLR 466 at 474, 484; Postiglione v The Queen (1997) 189 CLR 295 at 300. [33] R v Keogh [2007] SASC 226 at [78]; AN (No 2) v The Queen [2006] NSWCCA 218, at [41]-[42]. [34] Grierson per Dixon J at 437; R v Cartwright (1989) 17 NSWLR 243 at 246; R v Andr…
Spencer v Hutson [2007] QCA 178
Citation 11 (Para 8)

…lieve Mr Cockrell of the consequences of not filing in time?[8] [6] Beil v Mansell (No 1) [2006] 2 Qd R 199 at 207-208; Spencer & Anor v Hutson & Ors [2007] QCA 178 at [28]. ( Spencer ). [7] Chapman v State of Queensland [2003] QCA 172 at [3]; Queensland Trustees Limited v Fawckner [1964] Qd R 153 at 163-164. [8]…
R v LT [2006] QCA 534
Citation 12 (Para 16)

…me aware of the significance of this finding until some years later”, i.e. some years after 12 December 2006 when R v LT was handed down.[27] [26][2006] QCA 534. ( R v LT ). [27]Outline filed 15 January 2015, page 2, 6 th dot point. ( Affidavit 2 ).…
A.N v Regina (No. 2) [2006] NSWCCA 218
Citation 13 (Para 22)

…ueen (1989) 166 CLR 466 at 474, 484; Postiglione v The Queen (1997) 189 CLR 295 at 300. [33] R v Keogh [2007] SASC 226 at [78]; AN (No 2) v The Queen [2006] NSWCCA 218, at [41]-[42]. [34] Grierson per Dixon J at 437; R v Cartwright (1989) 17 NSWLR 243 at 246; R v Andrews [2005] SASC 107, at [14].…
Beil v Mansell (No 1) [2006] QCA 173
Citation 14

…89 ALJR 1; (2014) 314 ALR 182; [2014] HCA 42, cited Beil v Mansell (No 1) [2006] 2 Qd R 199; [2006] QCA 173, cited Chapman v State of Queensland [2003] QCA 172, cited Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, considered Jones v The Queen (1989) 166 CLR 409; [1989] HCA 16, cited Morgan v R (No 2) (201…
R v Cockrell; ex parte [2005] QCA 268
Citation 15 (Para 6)

…al the sentence imposed. The application was based on asserted errors in the orders for parole. It was refused.[4] [4] R v Cockrell; ex parte Cth DPP [2005] QCA 268. ( Cockrell No 2 ).…
R v Andrews [2005] SASC 107
Citation 16 (Para 22)

…[78]; AN (No 2) v The Queen [2006] NSWCCA 218, at [41]-[42]. [34] Grierson per Dixon J at 437; R v Cartwright (1989) 17 NSWLR 243 at 246; R v Andrews [2005] SASC 107, at [14].…
R v Cockrell [2005] QCA 59
Citation 17

…d R v Cartwright (1989) 17 NSWLR 243, cited R v Cockrell; ex parte Cth DPP [2005] 2 Qd R 448; [2005] QCA 59, related R v Cockrell; ex parte Cth DPP [2005] QCA 268, related R v Cockrell ; ex parte Cth DPP [2009] QCA 315, related R v Dang [2010] VSCA 13, cited R v DAQ [2008] QCA 75, considered R v Edwards (No 2) (…
Chapman v State of Queensland [2003] QCA 172
Citation 18 (Para 8)

…l v Mansell (No 1) [2006] 2 Qd R 199 at 207-208; Spencer & Anor v Hutson & Ors [2007] QCA 178 at [28]. ( Spencer ). [7] Chapman v State of Queensland [2003] QCA 172 at [3]; Queensland Trustees Limited v Fawckner [1964] Qd R 153 at 163-164. [8] Spencer at [28]. Explanation for the delay…
R v Fukusato [2002] QCA 20
Citation 19

…d R v Edwards (No 2) (1931) SASR 376; [1931] SAStRp 59, cited R v Fukusato [2003] 1 Qd R 272; [2002] QCA 20, cited R v Keogh (2007) 175 A Crim R 153; [2007] SASC 226, cited R v Landy [1943] ALR 91; [1943] VicLawRp 17, cited R v LT [2006] QCA 534, considered R v Riera [2011] QCA 77, cited R v Saxon (1998) 101 A C…
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 53
Citation 20 (Para 3)

…sented, and the accused will not be called upon to answer them. [42]Adopting the approach in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381–382 [69]–[71]; Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42 at [62].…
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Citation 21

…7] HCA 26, cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited Queensland Trustees Limited v Fawckner [1964] Qd R 153, cited R v AN (No 2) (2006) 66 NSWLR 523; (2006) 163 A Crim R 133; [2006] NSWCCA 218, cited R v Andrews [2005] SASC 107, cited R v Cartwright (…
Postiglione v the Queen [1997] HCA 26
Citation 22

…he Queen (1989) 166 CLR 466, [1989] HCA 18, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited Queensland Trustees Limited v Fawckner [1964] Qd R 153, cited R v AN (No 2) (2006) 66 NSWLR 523; (20…
Pantorno v The Queen [1989] HCA 18
Citation 23

…2) (2013) 228 A Crim R 483; [2013] NSWCCA 80, cited Pantorno v The Queen (1989) 166 CLR 466, [1989] HCA 18, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited Queensland Trustees Limited v Fawck…
Jones v The Queen [1989] HCA 16
Citation 24

…v The King (1938) 60 CLR 431; [1938] HCA 45, considered Jones v The Queen (1989) 166 CLR 409; [1989] HCA 16, cited Morgan v R (No 2) (2013) 228 A Crim R 483; [2013] NSWCCA 80, cited Pantorno v The Queen (1989) 166 CLR 466, [1989] HCA 18, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited Proj…
Grierson v The King [1938] HCA 45
Citation 25

…ed Chapman v State of Queensland [2003] QCA 172, cited Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, considered Jones v The Queen (1989) 166 CLR 409; [1989] HCA 16, cited Morgan v R (No 2) (2013) 228 A Crim R 483; [2013] NSWCCA 80, cited Pantorno v The Queen (1989) 166 CLR 466, [1989] HCA 18, cited Posti…
R v Brain [1999] SASC 358
Citation 26 (Para 24)

…f the interest of justice.[35] [35] Grierson at 435; R v Edwards (No 2) (1931) SASR 376, at 380; R v Saxon (1998) 101 A Crim R 71, at 76; R v Brain (1999) 74 SASR 92, at 100; Stanley at [1], [12], [79]. Valid presentation of the ex-officio indictment…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v Cockrell [2015] QCA 73
PARTIES:	R v COCKRELL, Marcus Geoffrey (applicant)
FILE NO/S:	CA No 233 of 2014 DC No 2756 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	1 May 2015
DELIVERED AT:	Brisbane
HEARING DATE:	13 February 2015
JUDGES:	Gotterson and Morrison JJA and Jackson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application is refused.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – OTHER MATTERS – where the applicant entered a plea of guilty to an ex-officio indictment containing 19 offences – where four of the offences were under the Criminal Code (Qld), and the remaining 15 were under the Criminal Code 1995 (Cth) – where the indictment had been signed by a person who was authorised to do so in respect of both Commonwealth and Queensland counts – where however, the indictment had not been presented by a person who was authorized to present the indictment in respect of the Queensland counts – where in an earlier appeal the applicant was granted an extension of time to appeal against his conviction for the Queensland counts – where the Court set aside the pleas of guilty and convictions in respect of the Queensland counts – whether there was a valid indictment – whether there was a miscarriage of justice in considering the invalid counts at the same time as the Commonwealth counts CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant entered a plea of guilty in 2003 – where within time the applicant applied for leave to appeal against the sentence imposed – where that application was abandoned – where in 2004 the applicant was granted an extension of time to appeal the conviction in relation to the Queensland counts – where that appeal was successful – where in 2005 the applicant filed a second application for an extension of time to appeal the sentence imposed – where that application was refused – where in 2009 the applicant made a third application for extension of time to appeal the sentence – where that application was refused – where the applicant now, eleven years after his conviction seeks leave to appeal against the conviction on the Commonwealth counts – whether there is an adequate explanation for the delay – whether there are merits of the proposed appeal – whether there is a good reason to relieve the applicant of the consequences of not filing in time Criminal Code (Qld), s 560, s 561, s 564, s 567(2), s 597C, s 604(1), s 668D Alphapharm Pty Ltd v H Lundbeck A/S (2014) 89 ALJR 1; (2014) 314 ALR 182; [2014] HCA 42, cited Beil v Mansell (No 1) [2006] 2 Qd R 199; [2006] QCA 173,…