R v Kelly - [2001] QCA 292

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kelly [2001] QCA 292

PARTIES:

R
v
KELLY, Stephen Roy
(applicant)

FILE NO/S:

CA No 106 of 2001
CA No 167 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Application for Reopening (Criminal)

ORIGINATING COURT:

Court of Appeal at Brisbane

DELIVERED ON:

27 July 2001

DELIVERED AT:

Brisbane

HEARING DATE:

9 July 2001

JUDGES:

McMurdo P, Davies JA and Thomas JA
Judgment of the Court

ORDER:

Application to reopen the sentencing proceedings refused

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPLICATION TO REOPEN SENTENCE – applicant pleaded guilty to manslaughter – where a sentence of 9 years imprisonment with a recommendation after 3½ years imposed on appeal – where application for parole refused on basis of psychiatric report – where application for reopening of sentence under s 188(1)(c) and s 188(5)(b) Penalties and Sentences Act 1992 (Qld) – where applicant must demonstrate that the court imposed a sentence decided on a clear factual error of substance – where the time for determining a clear factual error under s 188(1)(c) is the time of the original sentencing proceeding sought to be reopened – where s 188(1)(c) does not provide the power to reopen simply because a recommendation is not given effect – where the court was aware the Corrections Board can have regard to new material in determining parole applications

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PRACTICE AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – POWERS OF APPELLATE COURT – whether application for reopening should have been brought in the original sentencing court – where sentences imposed by the Court of Appeal become the sentence of the primary court for the purposes of Division 2 of Part 7 Penalties and Sentences Act 1992 (Qld) – where current application brought under s 188 of the Penalties and Sentences Act – where Court of Appeal has the power to re-open a proceeding where it has imposed a sentence based on a clear factual error of substance

Corrective Services Act 1988 (Qld), s 207B
Corrective Services Act 2000 (Qld), s 76(1)(a)
Corrective Services Amendment Act 2001 (Qld)
Penalties and Sentences Act 1992 (Qld), s 157(2), s 188(1)(c), s 188(5)(b)

Benson & Ors v Chief Executive, Department of Corrective Services [2001] QSC 159, 14 May 2001, considered
R v DC [1999] QCA 486; CA No 267 of 1999, 24 November 1999, applied
R v MacKenzie [2000] QCA 324; CA No 267 of 1999, 11 August 2000, applied
R v Rasmussen; Ex parte Attorney-General (Qld) [2000] QCA 494; CA No 288 of 1999, 1 December 2000, referred to
Williams v Queensland Community Corrections Board [2000] QCA 75' Appeal No 6237 of 1999, 17 March 2000, considered

COUNSEL:

The applicant appeared on his own behalf
M J Byrne QC for the respondent

SOLICITORS:

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

THE COURT: The applicant,…

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 Kelly

Details

AGLC: R v Kelly [2001] QCA 292
Case: [2001] QCA 292
Decision Date: 27 July 2001

CaseChat Overview and Summary

The matter of R v Kelly was before the court where the applicant, who had pleaded guilty to manslaughter, sought to reopen the sentence imposed on him. The original sentence was 9 years imprisonment with a recommendation to the parole board to release the applicant after 3½ years. This recommendation was overturned on appeal, and the applicant's application for parole was subsequently refused based on a psychiatric report. The applicant sought to reopen the sentencing proceedings under sections 188(1)(c) and 188(5)(b) of the Penalties and Sentences Act 1992 (Qld), arguing that the original sentence was based on a clear factual error of substance.

The court was required to determine whether the applicant's application for reopening the sentence should have been brought in the original sentencing court and whether the court had the power to re-open a proceeding where it had imposed a sentence based on a clear factual error of substance. The court held that the applicant must demonstrate that the court imposed a sentence decided on a clear factual error of substance at the time of the original sentencing proceeding sought to be reopened. The court also held that section 188(1)(c) did not provide the power to reopen simply because a recommendation was not given effect. Furthermore, the court was aware that the Corrections Board can have regard to new material in determining parole applications. The court found that the applicant's application for reopening the sentence was without merit.

The court dismissed the application to reopen the sentencing proceedings. The court held that the applicant had not demonstrated that the court imposed a sentence decided on a clear factual error of substance. The court also held that the applicant's application for reopening the sentence should have been brought in the original sentencing court and that the Court of Appeal did not have the power to re-open a proceeding where it had imposed a sentence based on a clear factual error of substance. The court further held that the applicant's argument that the failure to give effect to the recommendation amounted to a clear factual error of substance was without merit. The court dismissed the application and made no orders.

Orders

Orders of the court

Application to reopen the sentencing proceedings 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 Kelly [2001] QCA 292
PARTIES:	R v KELLY, Stephen Roy (applicant)
FILE NO/S:	CA No 106 of 2001 CA No 167 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	Application for Reopening (Criminal)
ORIGINATING COURT:	Court of Appeal at Brisbane
DELIVERED ON:	27 July 2001
DELIVERED AT:	Brisbane
HEARING DATE:	9 July 2001
JUDGES:	McMurdo P, Davies JA and Thomas JA Judgment of the Court
ORDER:	Application to reopen the sentencing proceedings refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPLICATION TO REOPEN SENTENCE – applicant pleaded guilty to manslaughter – where a sentence of 9 years imprisonment with a recommendation after 3½ years imposed on appeal – where application for parole refused on basis of psychiatric report – where application for reopening of sentence under s 188(1)(c) and s 188(5)(b) Penalties and Sentences Act 1992 (Qld) – where applicant must demonstrate that the court imposed a sentence decided on a clear factual error of substance – where the time for determining a clear factual error under s 188(1)(c) is the time of the original sentencing proceeding sought to be reopened – where s 188(1)(c) does not provide the power to reopen simply because a recommendation is not given effect – where the court was aware the Corrections Board can have regard to new material in determining parole applications CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PRACTICE AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – POWERS OF APPELLATE COURT – whether application for reopening should have been brought in the original sentencing court – where sentences imposed by the Court of Appeal become the sentence of the primary court for the purposes of Division 2 of Part 7 Penalties and Sentences Act 1992 (Qld) – where current application brought under s 188 of the Penalties and Sentences Act – where Court of Appeal has the power to re-open a proceeding where it has imposed a sentence based on a clear factual error of substance Corrective Services Act 1988 (Qld), s 207B Corrective Services Act 2000 (Qld), s 76(1)(a) Corrective Services Amendment Act 2001 (Qld) Penalties and Sentences Act 1992 (Qld), s 157(2), s 188(1)(c), s 188(5)(b) Benson & Ors v Chief Executive, Department of Corrective Services [2001] QSC 159, 14 May 2001, considered R v DC [1999] QCA 486; CA No 267 of 1999, 24 November 1999, applied R v MacKenzie [2000] QCA 324; CA No 267 of 1999, 11 August 2000, applied R v Rasmussen; Ex parte Attorney-General (Qld) [2000] QCA 494; CA No 288 of 1999, 1 December 2000, referred to Williams v Queensland Community Corrections Board [2000] QCA 75' Appeal No 6237 of 1999, 17 March 2000, considered
COUNSEL:	The applicant appeared on his own behalf M J Byrne QC for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent