R v Ford - [2009] QCA 132

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ford [2009] QCA 132

PARTIES:

R
v
FORD, Garry Robin
(applicant)

FILE NO/S:

CA No 74 of 2008
DC No 1253 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)
Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2009

JUDGES:

Keane and Chesterman JJA and A Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for extension of time to appeal against conviction refused

2. Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – WHAT CONSTITUTES – where applicant alleged miscarriage of justice insofar as counsel at trial was refused an adjournment – where applicant alleged refusal arose from listing judge's preconceived view of his guilt – where transcripts reveal counsel at trial had previously advised Court that matter was ready to proceed – where Crown objected to adjournment due to complainant's ill health – whether refusal to adjourn trial constitutes miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – WHAT CONSTITUTES – where applicant alleged miscarriage of justice insofar as refusal to adjourn trial prevented trial counsel from receiving adequate instructions from applicant – where commencement of trial was delayed to permit trial counsel to be instructed – where trial counsel conducted case in a manner consistent with having received instructions from applicant – whether miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – WHAT CONSTITUTES – where applicant convicted of attempted sodomy of and permitting himself to be sodomised by a child under 16 years – where applicant asserted Crown failed to established a "satisfactory date" as to applicant's knowledge that complainant was HIV positive – where undisputed evidence was that parties used a condom and that applicant was unconcerned with complainant's HIV status – whether miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant previously sentenced to eight years imprisonment with respect to other sexual offences against other complainants – where applicant sentenced to three years imprisonment cumulatively with respect to instant complaint – where the effect of instant sentence to postpone parole eligibility by
18 months – whether sentence manifestly excessive

R v Pandelis [2009] QCA 25, cited

COUNSEL:

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

SOLICITORS:

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

KEANE JA: On 13 December 2006 the applicant was convicted upon the verdict of a jury of one count of wilfully exposing a child under 16 years to an indecent film, one count of indecent dealing with a child under 16 years, one count of attempted sodomy and one count…

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 Ford

Details

AGLC: R v Ford [2009] QCA 132
Case: [2009] QCA 132
Decision Date: 22 May 2009

CaseChat Overview and Summary

The case of R v Ford was heard by the court in an appeal against conviction and sentence. The applicant, Ford, was convicted of attempted sodomy of and permitting himself to be sodomised by a child under 16 years. The legal issues before the court were whether the refusal of an adjournment and the sentence imposed constituted a miscarriage of justice. The applicant alleged that the refusal to adjourn the trial prevented his trial counsel from receiving adequate instructions and that the listing judge had a preconceived view of his guilt. Additionally, Ford argued that the Crown failed to establish a satisfactory date as to when he knew the complainant was HIV positive.

The court found that the refusal to adjourn did not constitute a miscarriage of justice. The transcripts showed that the trial counsel had previously advised the court that the matter was ready to proceed and that the Crown objected to the adjournment due to the complainant's ill health. The court found that the applicant's trial counsel conducted the case in a manner consistent with having received instructions from the applicant. Furthermore, the court held that the applicant had failed to establish that the refusal to adjourn trial prevented his trial counsel from receiving adequate instructions. In relation to the sentence, the court found that the sentence was not manifestly excessive or inadequate.

The court refused the applicant's application for an extension of time to appeal against his conviction and his application for leave to appeal against his sentence. The court held that there was no miscarriage of justice and that the sentence was not manifestly excessive or inadequate. The effect of the sentence was to postpone parole eligibility by 18 months, which was not considered manifestly excessive.

Orders

Orders of the court

1. Application for extension of time to appeal against conviction refused

2. Application for leave to appeal against sentence refused

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 Ford [2009] QCA 132
PARTIES:	R v FORD, Garry Robin (applicant)
FILE NO/S:	CA No 74 of 2008 DC No 1253 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction) Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	22 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	15 May 2009
JUDGES:	Keane and Chesterman JJA and A Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for extension of time to appeal against conviction refused 2. Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – WHAT CONSTITUTES – where applicant alleged miscarriage of justice insofar as counsel at trial was refused an adjournment – where applicant alleged refusal arose from listing judge's preconceived view of his guilt – where transcripts reveal counsel at trial had previously advised Court that matter was ready to proceed – where Crown objected to adjournment due to complainant's ill health – whether refusal to adjourn trial constitutes miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – WHAT CONSTITUTES – where applicant alleged miscarriage of justice insofar as refusal to adjourn trial prevented trial counsel from receiving adequate instructions from applicant – where commencement of trial was delayed to permit trial counsel to be instructed – where trial counsel conducted case in a manner consistent with having received instructions from applicant – whether miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – WHAT CONSTITUTES – where applicant convicted of attempted sodomy of and permitting himself to be sodomised by a child under 16 years – where applicant asserted Crown failed to established a "satisfactory date" as to applicant's knowledge that complainant was HIV positive – where undisputed evidence was that parties used a condom and that applicant was unconcerned with complainant's HIV status – whether miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant previously sentenced to eight years imprisonment with respect to other sexual offences against other complainants – where applicant sentenced to three years imprisonment cumulatively with respect to instant complaint – where the effect of instant sentence to postpone parole eligibility by 18 months – whether sentence manifestly excessive R v Pandelis [2009] QCA 25, cited
COUNSEL:	The applicant appeared on his own behalf M J Copley SC for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent