R v Cockrell; ex parte - [2005] QCA 268

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cockrell; ex parte Cth DPP [2005] QCA 268

PARTIES:

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

FILE NO/S:

CA No 64 of 2005
DC No 2756 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

2 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

2 August 2005

JUDGES:

McMurdo P, Keane JA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OTHER MATTERS - applicant convicted after pleas of guilty to offences against Queensland and Commonwealth law - over a year later applied for an extension of time to appeal against conviction and sentence - Court of Appeal granted application for extension of time in respect of the Queensland offences, allowed the appeal, set aside the pleas of guilty and convictions in respect of the Queensland offences and declared the cumulative sentence of one month imposed on a Commonwealth offence to have been served - applicant subsequently applied for an extension of time to apply for leave to appeal against sentence - whether applicant can revisit reasons for judgment and order made by Court of Appeal through application - whether Court of Appeal can deal with matters raised in application when applicant has already exhausted his rights of appeal to the Court of Appeal

Criminal Code 1899 (Qld), s 672A

R v Cockrell; ex parte Cth DPP [2005] QCA 59; CA No 325 of 2004, 11 March 2005, cited
R v Kenny [2000] QCA 69; CA No 385 of 1999, 15 March 2000, applied
R v Smith [1968] QWN 50, applied
R v Smith (No 2) [1969] QWN 10, applied

COUNSEL:

The applicant appeared on his own behalf
J M Bentley for the respondent

SOLICITORS:

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

THE PRESIDENT: This application purports to be an application for an extension of time to apply for leave to appeal against sentence. It is about 19 months out of time.

Mr Cockrell was relevantly convicted on 30 November 2003 after pleading guilty to 19 offences of a fraudulent nature contained in an ex officio indictment charging counts against both the Queensland and the Commonwealth Crown. All offences were Commonwealth offences except for counts 12, 14, 16 and 18 which were offences against Queensland law. On the Queensland offences he was originally sentenced to six years imprisonment with a recommendation that he be considered eligible for post-prison community based release after serving two years. On each of counts 1 to 8 he was sentenced to three and a half years imprisonment with a non parole period of 18 months. On count 9 he was sentenced to one month cumulative imprisonment. On all…

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; ex parte

Details

AGLC: R v Cockrell; ex parte [2005] QCA 268
Case: [2005] QCA 268
Decision Date: 2 August 2005

CaseChat Overview and Summary

The case involved an applicant who had been convicted after entering pleas of guilty to offences under both Queensland and Commonwealth law. Over a year later, the applicant sought an extension of time to appeal against his conviction and sentence. The Court of Appeal granted the application for an extension of time concerning the Queensland offences, allowed the appeal, set aside the pleas of guilty and convictions in relation to the Queensland offences, and declared that the cumulative sentence of one month imposed on the Commonwealth offence had been served. Subsequently, the applicant applied for an extension of time to apply for leave to appeal against the sentence. The central legal issues were whether the applicant could revisit the reasons for the judgment and order made by the Court of Appeal through the application, and whether the Court of Appeal could address the matters raised in the application when the applicant had already exhausted his rights of appeal to the Court of Appeal.

The Court held that the application was not an appeal but rather an application for an extension of time to apply for leave to appeal. The Court considered it inappropriate to revisit the reasons for the judgment and order made by the Court of Appeal through this application. The Court noted that the applicant had already exhausted his rights of appeal to the Court of Appeal, and thus, the Court of Appeal could not deal with the matters raised in the application. The Court found that the application was not an appeal but an application for an extension of time to apply for leave to appeal, and it was not appropriate to revisit the reasons for the judgment and order made by the Court of Appeal through this application. Accordingly, the application was refused.

The Court's reasoning was grounded in the understanding that the application for an extension of time to apply for leave to appeal was not an appeal and did not allow for a revisiting of the reasons for the judgment and order made by the Court of Appeal. The Court emphasised that the applicant had already exhausted his rights of appeal to the Court of Appeal, and thus, the Court of Appeal could not deal with the matters raised in the application. The Court held that the application was not an appeal but an application for an extension of time to apply for leave to appeal, and it was not appropriate to revisit the reasons for the judgment and order made by the Court of Appeal through this application. Consequently, the Court refused the application.

Orders

Orders of the court

Application refused

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 268
PARTIES:	R v COCKRELL, Marcus Geoffrey (applicant) EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (respondent)
FILE NO/S:	CA No 64 of 2005 DC No 2756 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	2 August 2005
DELIVERED AT:	Brisbane
HEARING DATE:	2 August 2005
JUDGES:	McMurdo P, Keane JA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OTHER MATTERS - applicant convicted after pleas of guilty to offences against Queensland and Commonwealth law - over a year later applied for an extension of time to appeal against conviction and sentence - Court of Appeal granted application for extension of time in respect of the Queensland offences, allowed the appeal, set aside the pleas of guilty and convictions in respect of the Queensland offences and declared the cumulative sentence of one month imposed on a Commonwealth offence to have been served - applicant subsequently applied for an extension of time to apply for leave to appeal against sentence - whether applicant can revisit reasons for judgment and order made by Court of Appeal through application - whether Court of Appeal can deal with matters raised in application when applicant has already exhausted his rights of appeal to the Court of Appeal Criminal Code 1899 (Qld), s 672A R v Cockrell; ex parte Cth DPP [2005] QCA 59; CA No 325 of 2004, 11 March 2005, cited R v Kenny [2000] QCA 69; CA No 385 of 1999, 15 March 2000, applied R v Smith [1968] QWN 50, applied R v Smith (No 2) [1969] QWN 10, applied
COUNSEL:	The applicant appeared on his own behalf J M Bentley for the respondent
SOLICITORS:	The applicant appeared on his own behalf Commonwealth Director of Public Prosecutions for the respondent