R v Hussein & Hussein - [2009] QCA 246

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hussein & Hussein [2009] QCA 246

PARTIES:

R
v
HUSSEIN, Azhar Zuhayr
(applicant)

R
v
HUSSEIN, Afsheen Kashef
(applicant)

FILE NO/S:

CA No 146 of 2009
CA No 147 of 2009
DC No 631 of 2006
DC No 748 of 2006
DC No 2089 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

28 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2009

JUDGES:

Keane, Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Applications for extension of time within which to appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where applicants were convicted, after trial, of six counts of rape against complainant [C] and sentenced to fifteen and a half and fifteen years imprisonment – where applicants pleaded guilty to ten counts of rape and one count of deprivation of liberty against complainant [D] and sentenced to eleven and a half and ten years imprisonment to be served concurrently with the sentences in respect of the offences against [C] – where applicants’ previous appeals against conviction and applications for leave to appeal against sentence were dismissed – where applicants sought leave to adduce fresh evidence and submitted that the primary judge sentenced the applicants on the basis of four factual errors – whether extension of time should be granted

Corrective Services Act 2006 (Qld)
Penalties and Sentences Act 1992 (Qld), s 188(1)(c)

Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, considered
R v AP [2003] QCA 445, cited
R v McQuire [2004] 1 Qd R 685; [2003] QCA 523, cited
R v Nudd [2007] QCA 40, cited
R v Senior [2005] QCA 21, cited
R v Smith [1968] QWN 50, considered
R v Smith (No 2) [1969] QWN 10, cited

COUNSEL:

The applicants appeared on their own behalf
P F Rutledge for the respondent

SOLICITORS:

The applicants appeared on their own behalf
Director of Public Prosecutions (Qld) for the respondent

KEANE JA: I have had the advantage of reading the reasons for judgment prepared by Muir JA. I agree with the order proposed by his Honour and with his Honour's reasons.

MUIR JA: The applicants were convicted on 18 January 2006 after a trial in the District Court of six counts of rape committed on the complainant [C] on 17 September 2004. Each was convicted as principal offender on three of the counts and as aiding the other on the remaining counts. On 9 March 2006, the applicants pleaded guilty to ten counts of rape and one count of deprivation of liberty on 13 February 2005 of another complainant [D]. After the trial of the offences concerning [C], the judge who had presided at the trial sentenced the applicants for the…

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 Hussein & Hussein

Details

AGLC: R v Hussein and Hussein [2009] QCA 246
Case: [2009] QCA 246
Decision Date: 28 August 2009

CaseChat Overview and Summary

The applicants, Hussein and Hussein, were convicted after trial of six counts of rape against complainant [C] and sentenced to fifteen and a half and fifteen years imprisonment, respectively. They also pleaded guilty to ten counts of rape and one count of deprivation of liberty against complainant [D] and were sentenced to eleven and a half and ten years imprisonment, to be served concurrently with the sentences in respect of the offences against [C]. Their previous appeals against conviction and applications for leave to appeal against sentence were dismissed. They now sought leave to adduce fresh evidence, submitting that the primary judge sentenced them on the basis of four factual errors.

The primary issue before the court was whether the applicants should be granted an extension of time to appeal against their sentences. The court considered the applicants’ submissions regarding the alleged factual errors and whether these errors warranted an extension of time. The applicants argued that the alleged errors were significant and impacted the severity of their sentences. They contended that these errors should be considered as fresh evidence, thereby justifying an extension of time for their appeal.

The court examined the applicants' submissions and found that the alleged factual errors did not warrant an extension of time. The court held that the applicants had not demonstrated any exceptional circumstances that would justify an extension. The applicants' previous appeals and applications for leave to appeal against sentence had already been dismissed, and the court found no new evidence or argument that would warrant reconsideration. The court concluded that the applicants' submissions did not meet the threshold for an extension of time.

Accordingly, the court dismissed the applicants' applications for an extension of time to appeal against their sentences. The court found that the applicants had not demonstrated any exceptional circumstances or new evidence that would warrant an extension of time. The applicants' previous appeals and applications for leave to appeal against sentence had already been dismissed, and the court found no new evidence or argument that would warrant reconsideration.

Orders

Orders of the court

Applications for extension of time within which to appeal against sentence dismissed.

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 Hussein & Hussein [2009] QCA 246
PARTIES:	R v HUSSEIN, Azhar Zuhayr (applicant) R v HUSSEIN, Afsheen Kashef (applicant)
FILE NO/S:	CA No 146 of 2009 CA No 147 of 2009 DC No 631 of 2006 DC No 748 of 2006 DC No 2089 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	28 August 2009
DELIVERED AT:	Brisbane
HEARING DATE:	19 August 2009
JUDGES:	Keane, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Applications for extension of time within which to appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where applicants were convicted, after trial, of six counts of rape against complainant [C] and sentenced to fifteen and a half and fifteen years imprisonment – where applicants pleaded guilty to ten counts of rape and one count of deprivation of liberty against complainant [D] and sentenced to eleven and a half and ten years imprisonment to be served concurrently with the sentences in respect of the offences against [C] – where applicants’ previous appeals against conviction and applications for leave to appeal against sentence were dismissed – where applicants sought leave to adduce fresh evidence and submitted that the primary judge sentenced the applicants on the basis of four factual errors – whether extension of time should be granted Corrective Services Act 2006 (Qld) Penalties and Sentences Act 1992 (Qld), s 188(1)(c) Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, considered R v AP [2003] QCA 445, cited R v McQuire [2004] 1 Qd R 685; [2003] QCA 523, cited R v Nudd [2007] QCA 40, cited R v Senior [2005] QCA 21, cited R v Smith [1968] QWN 50, considered R v Smith (No 2) [1969] QWN 10, cited
COUNSEL:	The applicants appeared on their own behalf P F Rutledge for the respondent
SOLICITORS:	The applicants appeared on their own behalf Director of Public Prosecutions (Qld) for the respondent