R v Cockrell - [2009] QCA 315

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cockrell [2009] QCA 315

PARTIES:

R
v
COCKRELL, Marcus Geoffrey
(applicant)

FILE NO/S:

CA No 176 of 2009
DC No 2756 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

20 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

13 October 2009

JUDGES:

Keane, Holmes and Muir JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for extension of time refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where applicant sought leave to appeal against conviction and sentence out of time – where applicant sought to explain delay by reference to depression – where applicant maintained concurrent litigation in federal courts with respect to migration matters – where applicant has served sentences imposed – where appeal would be futile – whether extension of time should be granted

Crimes Act 1914 (Cth), s 19AL

Barac v Director of Public Prosecutions [2009] 1 Qd R 104; [2007] QCA 112, cited
Cockrell v Minister for Immigration and Citizenship [2009] HCASL 2, cited
Cockrell v Minister for Immigration and Citizenship [2009] FCA 436, cited
Cockrell v Minister for Immigration and Citizenship [2009] FCA 444, cited
Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345; [2008] FCAFC 160, cited
Cockrell v Minister for Immigration and Citizenship (2007) 100 ALD 52; [2007] FCA 1779, cited
R v Cockrell [2005] 2 Qd R 448; [2005] QCA 59, cited
R v Cockrell; ex parte Cth DPP[2005] QCA 268, cited
R v Lewis (2006) 163 A Crim R 169; [2006] QCA 121, cited

COUNSEL:

The applicant appeared on his own behalf
D N Adsett for the respondent

SOLICITORS:

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

KEANE JA: On 13 November 2003 the applicant, Mr Cockrell, was convicted on his own plea of 19 offences consisting of three counts of obtaining financial advantage by deception, five counts of attempting to obtain financial advantage by deception, one count of destroying evidence, one count of opening a false account, five counts of operating a false account and four counts of fraud. Some of these offences were contraventions of Commonwealth law and some were contraventions of Queensland law.

In respect of the Commonwealth offences, Mr Cockrell was sentenced to an effective sentence of three and a half years imprisonment with a non-parole period of 18 months. In respect of the State offences, he was sentenced to an effective sentence of six years imprisonment with a recommendation that he be considered for post prison community based release after serving two years in actual custody. A period of 596 days was declared to be time already served. A further period of one month's imprisonment was imposed to be served cumulatively…

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 [2009] QCA 315
Case: [2009] QCA 315
Decision Date: 20 October 2009

CaseChat Overview and Summary

The applicant in the case sought leave to appeal against his conviction and sentence out of time. The application was made in the context of criminal law, specifically concerning the procedures for notices of appeal, the time for appealing and the extension thereof. The applicant sought to explain the delay in lodging his appeal by referencing his depression and his concurrent litigation in federal courts concerning migration matters. Despite having served the sentences imposed, the applicant argued that an extension of time should be granted to allow the appeal to proceed.

The court was required to decide whether the applicant's explanation for the delay was sufficient to warrant an extension of time, and whether the appeal would be futile if leave was granted. The applicant maintained that his depression had significantly impacted his ability to prepare and lodge the appeal within the prescribed time, and that the concurrent litigation in federal courts concerning migration matters had further contributed to the delay. However, the court considered the applicant's argument that the appeal would be futile if leave was granted, as the applicant had already served the sentences imposed.

The court found that the applicant's explanation for the delay was not sufficient to warrant an extension of time. The court considered that the applicant had been aware of his right to appeal and the need to lodge an appeal within the prescribed time, and that the applicant had not demonstrated any exceptional circumstances that would justify an extension of time. The court also found that the appeal would be futile if leave was granted, as the applicant had already served the sentences imposed. Accordingly, the court refused the application for an extension of time.

Orders

Orders of the court

Application for extension of time 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Cockrell [2009] QCA 315
PARTIES:	R v COCKRELL, Marcus Geoffrey (applicant)
FILE NO/S:	CA No 176 of 2009 DC No 2756 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	20 October 2009
DELIVERED AT:	Brisbane
HEARING DATE:	13 October 2009
JUDGES:	Keane, Holmes and Muir JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where applicant sought leave to appeal against conviction and sentence out of time – where applicant sought to explain delay by reference to depression – where applicant maintained concurrent litigation in federal courts with respect to migration matters – where applicant has served sentences imposed – where appeal would be futile – whether extension of time should be granted Crimes Act 1914 (Cth), s 19AL Barac v Director of Public Prosecutions [2009] 1 Qd R 104; [2007] QCA 112, cited Cockrell v Minister for Immigration and Citizenship [2009] HCASL 2, cited Cockrell v Minister for Immigration and Citizenship [2009] FCA 436, cited Cockrell v Minister for Immigration and Citizenship [2009] FCA 444, cited Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345; [2008] FCAFC 160, cited Cockrell v Minister for Immigration and Citizenship (2007) 100 ALD 52; [2007] FCA 1779, cited R v Cockrell [2005] 2 Qd R 448; [2005] QCA 59, cited R v Cockrell; ex parte Cth DPP[2005] QCA 268, cited R v Lewis (2006) 163 A Crim R 169; [2006] QCA 121, cited
COUNSEL:	The applicant appeared on his own behalf D N Adsett for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Commonwealth) for the respondent