R v Cockrell - [2005] QCA 59

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cockrell; ex parte Cth DPP [2005] QCA 59

PARTIES:

R
v
COCKRELL, Marcus Geoffrey
(applicant/appellant)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(respondent)

FILE NO/S:

CA No 325 of 2004
DC No 2756 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 March 2005

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2005

JUDGES:

McMurdo P, Jerrard JA and Mackenzie J
Separate reasons for judgment of each member of the Court, McMurdo P and Jerrard JA concurring as to the orders made, Mackenzie J dissenting in part

ORDER:

1.    Grant the application for an extension of time within       which to appeal against conviction in respect of the       Queensland offences contained in the ex officio       indictment 2756/03 (counts 12, 14, 16 and 18)
2.    Allow the appeal and set aside the pleas of guilty and       the convictions in respect of the Queensland offences       contained in the ex officio indictment 2756/03 (counts       12, 14, 16 and 18)
3.    Declare that the cumulative sentence of one month       imprisonment imposed on count nine has now been       served

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant became aware of unlawful presentation of indictment after time period in which to appeal had expired – where matter re-listed before sentencing judge and told the only remedy was by way of appeal to the Court of Appeal – where filed application to Court of Appeal within one month of unsuccessful application to the primary judge – whether application for an extension of time should be granted

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PROSECUTION – FILING OF INFORMATION, PRESENTMENT OR INDICTMENT – QUEENSLAND – where applicant convicted after plea of guilty to ex officio indictment containing offences against Criminal Code 1899 (Qld) – where ex officio indictment not lawfully presented in accordance with requirements in s 560(2) and s 561 Criminal Code 1899 (Qld) – whether pleas of guilty for offences and convictions based on them should be set aside – whether order for acquittal or new trial can be made

CRIMINAL LAW – PROBATION, PAROLE, RELEASE ON LICENSE AND REMISSIONS – FEDERAL OFFENDERS – where applicant convicted after plea of guilty to ex officio indictment containing 15 offences against Commonwealth law – where sentenced to an effective term of three and a half years imprisonment with an non-parole period of 18 months in respect of 14 of the Commonwealth offences and one month cumulative imprisonment in respect of one of the Commonwealth offences – where non-parole period now expired – where Commonwealth Attorney-General required under s 19AL Crimes Act 1914 (Cth) to order in writing that a person be released on parole at the end of the non-parole period – where Attorney-General did…

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 [2005] QCA 59
Case: [2005] QCA 59
Decision Date: 11 March 2005

CaseChat Overview and Summary

The appeal heard by the Court of Appeal involved the applicant, Cockrell, who sought to appeal his conviction on several charges under Queensland law, as well as the legality of his sentencing. Cockrell had originally pleaded guilty to an ex officio indictment containing offences against the Criminal Code 1899 (Qld) and was subsequently convicted. However, Cockrell contended that the indictment was not lawfully presented, thereby invalidating his pleas of guilty and the resulting convictions. Additionally, Cockrell had served the non-parole period for his sentence but was not released on parole due to the Commonwealth Attorney-General's failure to issue a written order for his release.

The court was required to address several key legal issues, including whether Cockrell's application for an extension of time to appeal should be granted, considering he became aware of the unlawful presentation of the indictment after the appeal period had expired. Additionally, the court needed to determine if the pleas of guilty and the resulting convictions should be set aside due to the unlawful presentation of the indictment. The court also had to decide if an order for acquittal or a new trial could be made given the circumstances. Furthermore, the court had to consider whether the Commonwealth Attorney-General could still make an order for Cockrell's release on parole, even though the non-parole period had already expired.

In granting the application for an extension of time, the Court of Appeal recognised that Cockrell had not been aware of the unlawful presentation of the indictment until after the usual appeal period had lapsed. The court deemed it appropriate to allow the appeal in light of this new information. The court further held that the unlawful presentation of the indictment rendered Cockrell's pleas of guilty and the resulting convictions invalid. Consequently, the court set aside the pleas of guilty and the convictions in respect of the specified Queensland offences. Additionally, the court found that the cumulative sentence of one month imprisonment imposed on count nine had been served. The court determined that it could not compel the Commonwealth Attorney-General to make an order for Cockrell's release on parole, as the non-parole period had already expired.

The court ordered that the application for an extension of time to appeal against the conviction in respect of the Queensland offences be granted. The court allowed the appeal, set aside the pleas of guilty and the convictions in respect of the specified Queensland offences, and declared that the cumulative sentence of one month imprisonment imposed on count nine had been served. The court did not compel the Commonwealth Attorney-General to make an order for Cockrell's release on parole, as the non-parole period had already expired.

Orders

Orders of the court

1. Grant the application for an extension of time within which to appeal against conviction in respect of the Queensland offences contained in the ex officio indictment 2756/03 (counts 12, 14, 16 and 18)

2. Allow the appeal and set aside the pleas of guilty and the convictions in respect of the Queensland offences contained in the ex officio indictment 2756/03 (counts 12, 14, 16 and 18)

3. Declare that the cumulative sentence of one month imprisonment imposed on count nine has now been served

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 Cockrell; ex parte Cth DPP [2005] QCA 59
PARTIES:	R v COCKRELL, Marcus Geoffrey (applicant/appellant) EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (respondent)
FILE NO/S:	CA No 325 of 2004 DC No 2756 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	11 March 2005
DELIVERED AT:	Brisbane
HEARING DATE:	16 February 2005
JUDGES:	McMurdo P, Jerrard JA and Mackenzie J Separate reasons for judgment of each member of the Court, McMurdo P and Jerrard JA concurring as to the orders made, Mackenzie J dissenting in part
ORDER:	1. Grant the application for an extension of time within which to appeal against conviction in respect of the Queensland offences contained in the ex officio indictment 2756/03 (counts 12, 14, 16 and 18) 2. Allow the appeal and set aside the pleas of guilty and the convictions in respect of the Queensland offences contained in the ex officio indictment 2756/03 (counts 12, 14, 16 and 18) 3. Declare that the cumulative sentence of one month imprisonment imposed on count nine has now been served
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant became aware of unlawful presentation of indictment after time period in which to appeal had expired – where matter re-listed before sentencing judge and told the only remedy was by way of appeal to the Court of Appeal – where filed application to Court of Appeal within one month of unsuccessful application to the primary judge – whether application for an extension of time should be granted CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PROSECUTION – FILING OF INFORMATION, PRESENTMENT OR INDICTMENT – QUEENSLAND – where applicant convicted after plea of guilty to ex officio indictment containing offences against Criminal Code 1899 (Qld) – where ex officio indictment not lawfully presented in accordance with requirements in s 560(2) and s 561 Criminal Code 1899 (Qld) – whether pleas of guilty for offences and convictions based on them should be set aside – whether order for acquittal or new trial can be made CRIMINAL LAW – PROBATION, PAROLE, RELEASE ON LICENSE AND REMISSIONS – FEDERAL OFFENDERS – where applicant convicted after plea of guilty to ex officio indictment containing 15 offences against Commonwealth law – where sentenced to an effective term of three and a half years imprisonment with an non-parole period of 18 months in respect of 14 of the Commonwealth offences and one month cumulative imprisonment in respect of one of the Commonwealth offences – where non-parole period now expired – where Commonwealth Attorney-General required under s 19AL Crimes Act 1914 (Cth) to order in writing that a person be released on parole at the end of the non-parole period – where Attorney-General did…