R v Cox - [2011] QCA 269

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cox [2011] QCA 269

PARTIES:

R
v
COX, Stephen Brian Cox
(applicant)

FILE NO/S:

CA No 221 of 2011
DC No 1080 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

5 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

5 October 2011

JUDGES:

Chesterman and White JJA, and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal is dismissed.

2. Application for an extension of time within which to appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL MISCELLANOUS MATTERS – PROCEDURE – where applicant was convicted of 11 counts of misappropriation of money – where the applicant was sentenced to six years’ imprisonment – where applicant sought an extension of time in which to appeal and an application for leave to appeal against conviction or sentence in August 2011 – where the applicant had previously appealed to the Court of Appeal against his convictions and sentence – where that prior appeal had been disposed of on the merits – whether the Court of Appeal had jurisdiction to hear a further appeal against those same convictions

R v Ali [2008] QCA 39, cited
Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, cited
R v MAM [2005] QCA 323, cited
R v Nudd [2007] QCA 40, cited

COUNSEL:

The applicant appeared on his own behalf
M B Lehane for the respondent

SOLICITORS:

The applicant appeared on her own behalf
Director of Public Prosecutions (Queensland) for the respondent

CHESTERMAN JA: On 30 April 2009, after a 15 day trial, the applicant was convicted of 11 counts of misappropriation of money. He was sentenced to six years' imprisonment. He appealed on 1 October 2010. His appeal against convictions was dismissed and his application for leave to appeal against sentence was refused.

On 8 August 2011, the applicant filed two notices, one for extension of time within which to appeal and one notice of appeal, or application for leave to appeal against conviction or sentence. Both applications are, of course, well out of time. The applicant, in the meantime, since the disposal of the last appeal, has been tried in the Supreme Court on a charge against the Commonwealth Crimes Act of a conspiracy to defraud the Commonwealth.

He was sentenced by Justice Fryberg in June of this year to nine years and 11 months' imprisonment. The applicant complains that in the course of the trial before Justice Fryberg, he, or his lawyers, were delivered large quantities of documents, which he hadn't had access to before, which he says were relevant to the charges he faced under the State Criminal Code for fraud and he says the documents would have assisted him in the presentation of a defence to those charges.

He complains as well that…

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 Cox

Details

AGLC: R v Cox [2011] QCA 269
Case: [2011] QCA 269
Decision Date: 5 October 2011

CaseChat Overview and Summary

The matter under consideration was an appeal against the decision of a lower court in the case of R v Cox. The applicant had been convicted on 11 counts of misappropriation of money and was sentenced to six years' imprisonment. The applicant sought both an extension of time to appeal and leave to appeal against the conviction or sentence, an application made in August 2011. This was not the first appeal brought by the applicant; a prior appeal to the Court of Appeal against the same convictions and sentence had been concluded on the merits. The central legal issue for the court was whether it possessed the jurisdiction to entertain a further appeal against the convictions and sentence that had already been determined on the merits in a previous appeal.

The court examined the nature of the applicant's previous appeal and its resolution on the merits, noting that once an appeal has been decided on its merits, the same issues cannot generally be re-litigated. The court underscored the importance of finality in legal proceedings and the principle that an appellate court should not be placed in the position of re-examining the same issues twice. In light of the prior appeal's resolution, the court found that it did not have the jurisdiction to hear the current application for an extension of time to appeal or for leave to appeal against the convictions and sentence.

Consequently, the court dismissed both the application for leave to appeal and the application for an extension of time within which to appeal. The court's decision was grounded in the principle of finality and the need to prevent the re-litigation of issues that have already been determined. No further orders were made beyond those dismissing the applications.

Orders

Orders of the court

1. Application for leave to appeal is dismissed.

2. Application for an extension of time within which to appeal is dismissed.

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 Cox [2011] QCA 269
PARTIES:	R v COX, Stephen Brian Cox (applicant)
FILE NO/S:	CA No 221 of 2011 DC No 1080 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	5 October 2011
DELIVERED AT:	Brisbane
HEARING DATE:	5 October 2011
JUDGES:	Chesterman and White JJA, and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal is dismissed. 2. Application for an extension of time within which to appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL MISCELLANOUS MATTERS – PROCEDURE – where applicant was convicted of 11 counts of misappropriation of money – where the applicant was sentenced to six years’ imprisonment – where applicant sought an extension of time in which to appeal and an application for leave to appeal against conviction or sentence in August 2011 – where the applicant had previously appealed to the Court of Appeal against his convictions and sentence – where that prior appeal had been disposed of on the merits – whether the Court of Appeal had jurisdiction to hear a further appeal against those same convictions R v Ali [2008] QCA 39, cited Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, cited R v MAM [2005] QCA 323, cited R v Nudd [2007] QCA 40, cited
COUNSEL:	The applicant appeared on his own behalf M B Lehane for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent