R v Dendle - [2020] QCA 160

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dendle [2020] QCA 160

PARTIES:

R
v
DENDLE, Robert Jon
(applicant)

FILE NOS:

CA No 24 of 2020
DC No 1333 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction and Sentence: 4 May 2018 (Rafter SC DCJ); [2019] QCA 194 (Fraser and Philippides JJA and Lyons SJA)

DELIVERED ON:

7 August 2020

DELIVERED AT:

Brisbane

REVIEW DATE:

6 May 2020

JUDGE:

Sofronoff P

ORDER:

The application for an extension of time is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – OTHER MATTERS – where the applicant was convicted of two counts of rape and three counts of indecent treatment – where the applicant previously appealed against his convictions and sought leave to appeal against his sentences – where the applicant’s appeal was dismissed and leave to appeal against his sentences was refused – where the applicant now seeks an extension of time to file a further appeal – where the applicant submits that one of the grounds of appeal, being that the verdict was unsafe and unsatisfactory, was never considered by the Court of Appeal – whether the Court has not yet determined his appeal because it has not yet determined that ground – whether there can be a further appeal to the Court of Appeal

Criminal Code (Qld), s 668E(1)

BCM v The Queen (2013) 88 ALJR 101; [2013] HCA 48, cited
Jones v The Queen (1989) 166 CLR 409; [1989] HCA 16, considered
R v Dendle[2019] QCA 194, related
R v Nudd[2007] QCA 40, applied

COUNSEL:

The applicant appeared on his own behalf
D Balic for the respondent

SOLICITORS:

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

SOFRONOFF P: This is an application for an extension of time within which to appeal.
After a trial, on 4 May 2018, the applicant was convicted of two counts of rape and three counts of indecent treatment of a child under 16 years. In each case the complainant was the same 13 year old boy. The applicant was sentenced to imprisonment for 12 years on one of the rape counts and to shorter concurrent sentences on the other counts. The applicant filed an appeal against his convictions and sought leave to appeal against his sentences. After a hearing, on 24 September 2019 his appeal was dismissed and leave to appeal against his sentences was refused.[1] The applicant now seeks an extension of time to file a further appeal.
[1]R v Dendle [2019] QCA 194 at [79].
The applicant’s appeal was based upon six grounds. Three grounds contended that evidence had been wrongly admitted. One ground complained about the conduct of the prosecution. Another ground complained about the conduct of defence counsel.
The remaining ground was that the verdict was “unsafe and unsatisfactory and not according to law”, which can…

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 Dendle

Details

AGLC: R v Dendle [2020] QCA 160
Case: [2020] QCA 160
Decision Date: 7 August 2020

CaseChat Overview and Summary

The case of R v Dendle involved the applicant, who had been convicted of two counts of rape and three counts of indecent treatment. Following the conviction, the applicant appealed against the decision, and subsequently sought leave to appeal against his sentences. Both the appeal and the application for leave to appeal were dismissed. The applicant now seeks an extension of time to file a further appeal, arguing that one of the grounds of appeal, namely that the verdict was unsafe and unsatisfactory, was never considered by the Court of Appeal. The applicant contends that because this ground was not addressed, his appeal has not been fully determined, and therefore a further appeal may be warranted.

The legal issues before the court centred on the availability of a further appeal where a ground of appeal was not previously considered by the Court of Appeal. Specifically, the court had to determine whether the applicant’s appeal could be considered incomplete if a particular ground of appeal was not addressed, and whether this would permit a subsequent appeal. Furthermore, the court had to consider the implications of the applicant's previous unsuccessful attempts to appeal both his conviction and sentence, and whether these prior proceedings could affect the current application for an extension of time.

In evaluating the application, the court examined the nature and scope of the applicant's previous appeals and the specific grounds that were argued. The court found that the applicant's previous appeal was comprehensive and included various grounds, including the contention that the verdict was unsafe and unsatisfactory. The court noted that this particular ground was indeed considered and rejected by the Court of Appeal. Consequently, the court held that the applicant's appeal had been fully determined, including all relevant grounds. As the applicant's appeal had already been dismissed, and the ground in question had been adequately considered, the court concluded that there was no basis for a further appeal. Accordingly, the application for an extension of time to file a further appeal was refused.

Orders

Orders of the court

The application for an extension of time is 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 Dendle [2020] QCA 160
PARTIES:	R v DENDLE, Robert Jon (applicant)
FILE NOS:	CA No 24 of 2020 DC No 1333 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction and Sentence: 4 May 2018 (Rafter SC DCJ); [2019] QCA 194 (Fraser and Philippides JJA and Lyons SJA)
DELIVERED ON:	7 August 2020
DELIVERED AT:	Brisbane
REVIEW DATE:	6 May 2020
JUDGE:	Sofronoff P
ORDER:	The application for an extension of time is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – OTHER MATTERS – where the applicant was convicted of two counts of rape and three counts of indecent treatment – where the applicant previously appealed against his convictions and sought leave to appeal against his sentences – where the applicant’s appeal was dismissed and leave to appeal against his sentences was refused – where the applicant now seeks an extension of time to file a further appeal – where the applicant submits that one of the grounds of appeal, being that the verdict was unsafe and unsatisfactory, was never considered by the Court of Appeal – whether the Court has not yet determined his appeal because it has not yet determined that ground – whether there can be a further appeal to the Court of Appeal Criminal Code (Qld), s 668E(1) BCM v The Queen (2013) 88 ALJR 101; [2013] HCA 48, cited Jones v The Queen (1989) 166 CLR 409; [1989] HCA 16, considered R v Dendle[2019] QCA 194, related R v Nudd[2007] QCA 40, applied
COUNSEL:	The applicant appeared on his own behalf D Balic for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent