R v Dutton - [2005] QCA 394

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dutton [2005] QCA 394

PARTIES:

R
v
DUTTON, Damian James
(applicant)

FILE NO/S:

CA No 205 of 2005
DC No 661 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

27 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

27 October 2005

JUDGES:

Williams and Jerrard JJA and Atkinson J
Separate reasons for judgment for each member of the Court, each concurring as to the order made

ORDER:

Application for an extension of time within which to appeal against conviction refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – applicant pleaded guilty to nine offences – application for extension of time to appeal against conviction filed 15 months late – whether the applicant produced sufficient material to satisfy the Court that his original plea of guilty was irregular

Meissner v R (1995) 184 CLR 132, considered

COUNSEL:

The applicant appeared on his on behalf
M R Byrne for the respondent

SOLICITORS:

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

WILLIAMS JA: The applicant, Damian James Dutton, pleaded guilty on 15 April 2004 to nine offences committed on four occasions between 29 January and 4 March 2003. There was one count of sexual assault, one count of rape, one count of attempted rape, one count of sexual assault with a circumstance of aggravation, one count of exposing an intellectually impaired person to an indecent act, two counts of indecent acts in a public place, one count of going armed so as to cause fear and one count of wilful damage.

On 16 April 2004 he was sentenced to an effective term of 10 years' imprisonment. The learned District Court Judge structured that sentence by imposing a sentence of seven years' imprisonment on the count of rape and three years' cumulative imprisonment on the count of attempted rape with equal or lesser sentences on the remaining counts.

The sentences imposed on counts 1 to 3 on the indictment were concurrent and the sentences imposed on counts 4 to 9 were concurrent with each other but cumulative on the sentence imposed on the count of rape. His Honour declared the applicant had been convicted of a serious violent offence in respect of the rape offence.

The terms of a suspended sentence of six months' imprisonment imposed in the Beenleigh Magistrates Court on 12 September 2002 had been breached by the applicant's commission of these further offences and he was ordered to serve that six month sentence concurrently with the sentences imposed on counts 1 to 3.

The applicant now applies for an extension of time to appeal against his conviction. That application was filed on 12 August 2005, about 15 months late. Grounds explaining the delay in making the application and an outline…

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 Dutton

Details

AGLC: R v Dutton [2005] QCA 394
Case: [2005] QCA 394
Decision Date: 27 October 2005

CaseChat Overview and Summary

The case of R v Dutton involved an application by the applicant for an extension of time to appeal against his conviction. The applicant had previously pleaded guilty to nine offences and now sought an extension of time to appeal, arguing that his original plea of guilty was irregular. The application for the extension was filed 15 months late, which raised procedural issues regarding the timeliness of the application and the applicant's entitlement to an extension under the relevant legislation. The court was required to determine whether the applicant had demonstrated sufficient grounds to warrant an extension of time to appeal against his conviction.

The legal issues before the court included whether the applicant had demonstrated sufficient irregularity in his original plea of guilty to warrant an extension of time to appeal. The court also had to consider the timeliness of the application for an extension of time and whether any extension of time should be granted under the relevant legislation. The court had to weigh the applicant's late filing of the application against the potential irregularity of the original plea of guilty and whether this irregularity warranted an extension of time.

The court found that the applicant had not produced sufficient material to demonstrate that his original plea of guilty was irregular. The court noted that the applicant had not provided any evidence to support his claim that his plea was irregular and that the application for an extension of time was filed 15 months late. The court held that the applicant had not satisfied the threshold requirements for an extension of time and that the application was accordingly dismissed. The court emphasised the importance of adhering to statutory deadlines and the need for applicants to provide sufficient evidence to support their claims of irregularity in their original plea of guilty.

The court refused the applicant's application for an extension of time to appeal against his conviction. The court found that the applicant had not demonstrated sufficient irregularity in his original plea of guilty to warrant an extension of time and that the late filing of the application for an extension of time was a significant factor in the court's decision. The court emphasised the importance of timely applications and the need for applicants to provide sufficient evidence to support their claims of irregularity. The court concluded that the application for an extension of time should be refused and that the applicant's conviction would stand.

Orders

Orders of the court

Application for an extension of time within which to appeal against conviction 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 Dutton [2005] QCA 394
PARTIES:	R v DUTTON, Damian James (applicant)
FILE NO/S:	CA No 205 of 2005 DC No 661 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	27 October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	27 October 2005
JUDGES:	Williams and Jerrard JJA and Atkinson J Separate reasons for judgment for each member of the Court, each concurring as to the order made
ORDER:	Application for an extension of time within which to appeal against conviction refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – applicant pleaded guilty to nine offences – application for extension of time to appeal against conviction filed 15 months late – whether the applicant produced sufficient material to satisfy the Court that his original plea of guilty was irregular Meissner v R (1995) 184 CLR 132, considered
COUNSEL:	The applicant appeared on his on behalf M R Byrne for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent