R v Kenny

[2000] QCA 69

COURT OF APPEAL

McMURDO P
DAVIES JA
MOYNIHAN J

CA No 385 of 1999

THE QUEEN

KENNY, Robert Francis Applicant

BRISBANE

DATE 15/03/2000

JUDGMENT

THE PRESIDENT: The applicant seeks an extension of time within which to appeal against his conviction of 11 May 1999 for assault occasioning bodily harm and also seeks an extension of time for leave to appeal against his sentence of 120 hours community service with a recorded conviction.

His current application is dated 22 November 1999. It is therefore five and a half months out of time. He has provided no reasons for the delay in his application.

He claims, in general terms, that inadmissible evidence was tendered against him in the District Court and that he has ascertained additional facts favourable to him since his conviction although nothing has been placed before this Court in an appropriate form.

The applicant faces a number of difficulties. Firstly, he pleaded guilty before his Honour Judge Nase in the District Court. His second and even more significant difficulty is that he has already made an application for an extension of time to appeal in respect of this matter. See R v. Kenny [1999] QCA 399, CA No 246 of 1999, 17 September 1999.

I have read the transcript of the proceedings before this Court on that occasion. The applicant argued that he ought to be allowed to withdraw his plea of guilty as he pleaded guilty without legal advice because the Judge told him his trial had to proceed and he was unable to present evidence to the Court which he believed would assist him.

He claimed he could not have dislocated the complainant's shoulder as he was much shorter than the complainant. He also claimed that the sentence imposed of 120 hours community service was manifestly excessive. He would have preferred a $500 fine even though he was not working at the time of sentence and he had a bad back and had no ability to pay a fine.

This Court considered the application in CA Number 246 of 1999 on its merits and concluded that applicant had failed to establish any grounds justifying the setting aside of the plea of guilty.

The Court also determined that the sentence imposed was well within the appropriate range for an offence of this type and that there would be no substance in any application for leave to appeal against that sentence if an extension of time were granted.

As this very application has already been dealt with by this Court on its merits, the applicant has no standing to bring a fresh application. See R v. Smith [1968] QWN 50; R v. Smith (No. 2) [1969] QWN 10; R v. Pettigrew [1987] 1 Qd R 601; and R v. Brain (1999) SASR 92.

In my view, the application must be refused.

DAVIES JA: I agree.

MOYNIHAN J: So do I.

THE PRESIDENT: The order is: the application is refused.

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CaseChat Overview and Summary

The case of R v Kenny concerns an application by Robert Francis Kenny to extend the time within which to appeal against his conviction and sentence. Kenny had been convicted in the District Court of assault occasioning bodily harm and was sentenced to 120 hours of community service. The applicant seeks an extension of time to appeal against both his conviction and sentence, which was initially made on 11 May 1999 and is now five and a half months out of time. Kenny's application, dated 22 November 1999, argues that inadmissible evidence was tendered against him in the District Court and that he has since ascertained additional facts favourable to him, although these facts have not been presented to the Court.

The primary legal issue before the Court was whether the applicant should be granted an extension of time to appeal against his conviction and sentence. Kenny faced challenges in his application, including that he had already made a similar application, which was rejected by the Court. The Court considered the merits of the previous application and concluded that the applicant had failed to establish any grounds for setting aside his guilty plea. Furthermore, the sentence imposed was deemed to be within the appropriate range for the offence, and there would be no substance in any application for leave to appeal against that sentence if an extension of time were granted. The Court also noted that the applicant had no standing to bring a fresh application as the matter had already been dealt with on its merits.

In light of the above, the Court found that the application must be refused. The Court cited several precedents to support its decision, including R v Smith and R v Pettigrew. The Court determined that the applicant had not provided any reasons for the delay in his application, nor had he presented any new facts in an appropriate form. The Court concluded that the application had no merit and ordered that it be refused.

The final order of the Court was that the application for an extension of time within which to appeal against his conviction and sentence was refused.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established