R v Gordon; ex parte

Case [2009] QCA 209

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gordon; ex parte Cth DPP [2009] QCA 209

PARTIES:

R
v
GORDON, Brian McCormack
(respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(applicant)

FILE NO/S:

CA No 46 of 2009
DC No 34 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Cwth DPP

ORIGINATING COURT:

District Court at Hervey Bay

DELIVERED ON:

24 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

10 July 2009

JUDGES:

Chief Justice, Keane JA and Wilson 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 within which to appeal refused

2.   Notice of appeal struck out

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where Commonwealth Director of Public Prosecutions lodged notice of appeal against sentence out of time – where explanation for delay was late provision of revised transcript of sentencing remarks – whether extension should be granted

Crimes Act 1914 (Cth), s 17A
Criminal Code 1899 (Qld), s 228D, s 228G, s 669A, s 671
Criminal Code 1995 (Cth), s 474.19, s 474.22
Director of Public Prosecutions Act 1983 (Cth), s 9
Judiciary Act 1903 (Cth), s 68

Assheton v The Queen (2002) 132 A Crim R 237; [2002] WASCA 209, cited
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, cited
Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited
James v The Queen [2009] NSWCCA 62, cited
Peel v The Queen (1971) 125 CLR 447; [1971] HCA 59, cited
R v Adair & Attorney-General of Queensland [1997] QCA 185, cited
R v Cook; ex parte A-G (Qld); R v Cook; ex parte Commonwealth DPP [2004] QCA 469, cited
R v Daw [2006] QCA 386, cited
R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370, cited
R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24, cited
R v KU; Ex parte A-G (Qld) (2008) 181 A Crim R 58; [2008] QCA 20, cited
R v Liang & Li (1995) 82 A Crim R 39, cited
R v Melano; ex parte Attorney-General (Qld) [1995] 2 Qd R 186; [1994] QCA 523, cited
R v Salsone; ex parte A-G (Qld) [2008] QCA 220, cited
R v Tait (1979) 46 FLR 386, cited
The Queen v Wilton (1981) 28 SASR 362, cited
York v The Queen (2005) 225 CLR 466; [2005] HCA 60, cited

COUNSEL:

W J Abraham QC for the applicant
A J Glynn SC, with P E Smith, for the respondent

SOLICITORS:

Director of Public Prosecutions (Commonwealth) for the applicant
Suthers Lawyers for the respondent

  1. CHIEF JUSTICE:  I have had the advantage of reading the reasons for judgment of Keane JA.  I agree with the orders proposed by His Honour and with…

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Details
AGLC
R v Gordon; ex parte [2009] QCA 209
Case
[2009] QCA 209
Decision Date

CaseChat Overview and Summary

In the case of R v Gordon; ex parte, the Commonwealth Director of Public Prosecutions sought to appeal against the sentence imposed in the original trial. The applicant contended that the notice of appeal was filed out of time, as it was lodged beyond the 28-day statutory period allowed for filing such an appeal. The basis for the delay in filing the notice was the late provision of a revised transcript of the sentencing remarks by the trial judge. The matter was brought before the court to determine whether an extension of time should be granted to permit the appeal to proceed.

The primary legal issue before the court was whether the late provision of the revised transcript constituted sufficient grounds for an extension of time to file the notice of appeal. The court had to consider the statutory requirements for filing an appeal and whether there were exceptional circumstances that warranted an extension of time. The court needed to balance the statutory framework governing the timeliness of appeals with the need for fairness in the administration of justice.

In delivering the judgment, the court found that the statutory time limit for filing a notice of appeal was a mandatory and jurisdictional requirement. While the court acknowledged the late provision of the revised transcript as a factor, it held that this did not constitute exceptional circumstances warranting an extension of time. The court emphasised the importance of adhering to statutory timelines to ensure the finality of judgments and the efficient administration of justice. Consequently, the application for an extension of time was refused, and the notice of appeal was struck out. The court's decision underscored the principle that strict compliance with statutory provisions is necessary unless there are truly exceptional circumstances that justify a departure from these requirements.

Orders

Orders of the court

1. Application for extension of time within which to appeal refused

2. Notice of appeal struck out

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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