R v Kingelty - [2002] QCA 373

[2002] QCA 373

COURT OF APPEAL

DAVIES JA
WILLIAMS JA
JONES J

CA No 161 of 2002

THE QUEEN

JODY KINGELTY

BRISBANE

..DATE 20/09/2002

JUDGMENT

MR P F RUTLEDGE (instructed by Director of Public Prosecutions (Queensland) for the Crown

APPELLANT conducted her own case

DAVIES JA: This is an application for extension of time within which to appeal against conviction and seek leave to appeal against sentence. The applicant was convicted on her own plea of guilty in the Supreme Court on 12 November 1999 of attempted murder on 26 January 1998. She was sentenced to eight years imprisonment and the learned sentencing judge made a declaration that the offence was a serious violent offence.

The applicant sought to appeal against her sentence and that application was dismissed by this Court on 26 May 2000. She did not appeal against her conviction.

This application was filed on 15 May 2002. Its main basis is that the applicant claims to have fresh material in the form of a statement from her co-accused with whom she was then living in a de facto relationship that she was involved in the commission of the offence only because he physically forced her to become involved and that he believed that she was worried for her own life because of his violent and threatening manner.

What is now said in this statement is inconsistent with the version which the applicant's counsel gave to the learned sentencing judge during the course of the sentence hearing. It also appears from what was said at that hearing, and was not contradicted by the applicant's counsel at the time, that the applicant said to another person on the night before her co-offender Griffiths attempted to kill the complainant, that the complainant was "going down". And whilst it is true that the applicant, having accompanied Griffith to the complainant's home on the night in question, remained in the car while he went inside armed with a cane knife, the engine was apparently kept running and she was in the driver's seat prepared to drive him away. There was also evidence that a person in the vicinity heard a female voice from the direction of the vehicle call out, "I'm going to kill you."

The complainant was the applicant's former de facto husband and, shortly prior to the commission of the offence, they had had a serious argument about his failure to honour his obligations with respect to children of their relationship.
The learned sentencing judge found, on the evidence presented to him, that the applicant's co-offender was doing her bidding and that she, in effect, urged him on. On the evidence before his Honour I think that those conclusions were justified.

It should be noted that the sentence hearing was nearly two years after the date of the offence and as I will mention shortly no attempt was made to correct the facts as I have set them out on the hearing of the applicant's application for leave to…

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 Kingelty

Details

AGLC: R v Kingelty [2002] QCA 373
Case: [2002] QCA 373
Decision Date: 20/09/2002

CaseChat Overview and Summary

The case of R v Kingelty involved an application for an extension of time to appeal against conviction and seek leave to appeal against sentence. The applicant, Jody Kingelty, was convicted on her own plea of guilty in the Supreme Court on 12 November 1999, of attempted murder that occurred on 26 January 1998. Kingelty was sentenced to eight years imprisonment, and the sentencing judge declared the offence to be a serious violent offence. The applicant did not appeal against her conviction, but her application for leave to appeal against sentence was dismissed by the Court of Appeal on 26 May 2000. Kingelty filed this application on 15 May 2002, claiming that she had fresh evidence in the form of a statement from her co-accused, which she said showed that she was involved in the commission of the offence only because he physically forced her to become involved.

The legal issues before the Court were whether the application for an extension of time should be granted, and if so, whether there was a sufficient prospect of success for an appeal against conviction. The Court of Appeal had to consider the applicant's explanation for the delay in presenting the fresh evidence and whether the evidence was likely to be of any assistance in an appeal against conviction. The Court had to balance the applicant's right to appeal against the need to ensure that justice was not delayed and to prevent abuse of the Court's process.

The Court of Appeal granted the application for an extension of time, finding that there was a sufficient prospect of success for an appeal against conviction. The Court noted that the applicant had been a victim of domestic violence since she was young and that she had been in a violent relationship with her co-offender at the time of the offence. The Court accepted that it was possible that the applicant had been unable to express what she now said to the Court due to her prolonged subjection to domestic violence and her relationship with the co-offender. The Court found that there was no satisfactory explanation for the delay in raising the issue of duress and that the applicant had failed to mention to a psychiatrist that she had been frightened of her co-offender. The Court held that although there was considerable doubt about the prospect of success, it was at least possible that the version which the co-offender now gave was true and that the grant of an extension of time would, at least, involve legal aid to investigate whether there was any substance in an appeal which the applicant now sought to make.

The Court ordered that time within which to appeal against conviction be extended until 15 May 2002, and that the applicant should approach legal aid to see if she could get help from them with respect to an appeal against conviction. The Court advised that the applicant should be guided by the advice of legal aid as to whether in the end there was any real prospect of success after their investigation of such an appeal.

Orders