R v GV

Case [2006] QCA 394 13 October 2006

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SUPREME COURT OF QUEENSLAND

CITATION:

R v GV [2006] QCA 394

PARTIES:

R
v
GV
(applicant)

FILE NO/S:

CA No 190 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Orders delivered extempore 27 September 2006
Reasons delivered 13 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2006

JUDGES:

Jerrard JA and Jones and Atkinson JJ
Judgment of the Court

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – on numerous occasions prior to trial the applicant received legal advice to plead not guilty on the basis that defences under ss 24 and 25 of the Criminal Code 1899 (Qld) were available to him – where applicant was unexpectedly advised to plead guilty on the morning of the trial – where applicant pleaded guilty – where the applicant did not know he could appeal a conviction after pleading guilty – whether the applicant had any real prospects of success on an appeal to set aside his conviction

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – GENERAL PRINCIPLES – where the applicant pleaded guilty to dangerous driving on the morning of the trial – where the facts presented to the sentencing judge raised a complete defence to the charges – whether the trial judge should have exercised discretion in directing that a plea of not guilty be entered – whether in all of the circumstances a miscarriage of justice had occurred

Criminal Code 1899 (Qld), s 24, s 25

Maxwell v The Queen (1996) 184 CLR 501, applied
Meissner v The Queen (1995) 184 CLR 132, cited
R v Jerome and McMahon [1964] Qd R 595, discussed
R v Lewis [2006] QCA 121; CA No 325 of 2005, 21 April 2006, cited
R v Mundraby [2004] QCA 493; CA No 312 of 2004, 23 December 2004, cited
R v Ogborne [2006] QCA 161; CA No 233 of 2005, 17 May 2006, applied
R v Popovic [1964] Qd R 561, discussed
R v Tatnell [1962] Qd R 11, discussed
R v Warner [1980] Qd R 207, cited
R v Webb [1986] 2 Qd R 446, cited
Webster & Co v The AUSN Co Ltd [1902] St R Qd 207, discussed

COUNSEL:

D S Courtney for the applicant
C W Heaton for the respondent

SOLICITORS:

Locantro Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: The applicant applied for leave to appeal his conviction out of time. At the end of the hearing the Court made the following orders: that the application for leave to extend the time within which to appeal against conviction and sentence was granted; the plea of guilty and conviction were set aside and a plea of not…

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 GV

Details

AGLC: R v GV [2006] QCA 394
Case: [2006] QCA 394
Decision Date: 13 October 2006

CaseChat Overview and Summary

In the case of R v GV, the appellant challenged his conviction on the grounds that he was misled by his legal representatives to plead guilty to dangerous driving when he believed a not guilty plea was appropriate. The matter was heard in the Court of Appeal in Queensland, where the appellant sought an extension of time to appeal against his conviction. The appellant's legal team argued that he had been advised to plead not guilty on multiple occasions prior to the trial due to available defences under sections 24 and 25 of the Criminal Code 1899 (Qld). However, on the morning of the trial, he was unexpectedly instructed to plead guilty, which he did, not realising he could appeal the conviction post-plea.

The court was required to determine whether the appellant had any real prospects of success on an appeal to set aside his conviction. This involved examining the general principles governing the grant or refusal of extensions of time for appeals, particularly in circumstances where the appellant was misled by his legal representatives. Additionally, the court needed to consider whether the trial judge should have exercised discretion in directing that a plea of not guilty be entered and whether a miscarriage of justice had occurred given the facts presented to the sentencing judge raised a complete defence to the charges.

The Court of Appeal considered the appellant's arguments and found that there was a significant likelihood of success in setting aside the conviction. The court noted the appellant's repeated advice to plead not guilty and the unexpected change in legal strategy on the morning of the trial. Furthermore, the court recognised that the facts presented during sentencing raised a complete defence, indicating a miscarriage of justice. Consequently, the Court of Appeal granted an extension of time for the appeal and quashed the conviction, ordering a retrial.

Orders