Separate reasons for judgment of each member of the Court, Davies and Pincus JJ.A. concurring as to the orders made, Shepherdson J dissenting.
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APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
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CATCHWORDS: CRIMINAL LAW - application for leave to appeal against decision of Dowsett J that the applicant not be arraigned on an indictment for accessory after the fact of murder - application for leave to appeal against decision of White J that the Crown have leave to have the indictment for accessory after the fact returned to enter a nolle prosequi and to present a new indictment for murder and decision not to stay or quash the indictment for murder - whether a plea of guilty from a person charged with being an accessory after the fact could not be accepted until it had been determined whether or not the principal offender was guilty - whether the Court has jurisdiction to hear the application for leave to appeal against orders of White J - whether there is a right of appeal against an interlocutory order of the Supreme Court in relation to a trial on indictment.

Rowley (1948) 32 Crim.App.R. 147
Darby (1982) 148 C.L.R. 668
R v. Foster; ex parte Gillies [1937] St.R.Qd. 67
R v. Queensland Television Ltd; ex parte Attorney-General [1983] 2 Qd.R. 648
Ex parte Maher [1986] 1 Qd.R. 303
Skase [1995] 2 Qd.R. 297
Connell v. The Queen (No. 5) (1993) 10 W.A.R. 424
Carter (1994) 74 A.Crim.R. 300
R v. Pettigrew [1997] 1 Qd.R. 601
Williams v. Spautz (1992) 174 C.L.R. 509
Grierson v. The King (1938) 60 C.L.R. 431
Director of Public Prosecutions (Queensland) v. Wentworth (Appeal No. 4118 of 1996, 10 September 1996)
S. 569 Criminal Code
S. 10 Judicature Act 1876
S. 254 Supreme Court Act 1995 (Qld)
S. 8(1), s. 9(1), s. 29, s. 69 Supreme Court of Queensland Act 1991

Counsel:Ms J Dick for the applicant.
Mrs L Clare for the respondent.

Solicitors:Legal Aid Queensland for the applicant.
Director of Prosecutions (Queensland) for the respondent.

Hearing date: 4 August 1997.

REASONS FOR JUDGMENT - DAVIES J.A.
Judgment delivered 2 December 1997

The facts relevant to this appeal, or purported appeal, are set out in the reasons of Pincus J.A. which I have read. I adopt his Honour's statement of those facts and I agree with his Honour that the only question which this Court must now decide is whether it has jurisdiction to entertain the applications made to it for leave to appeal against orders made by White J. on 5 March 1997 refusing to stay proceedings on or to quash the indictment for murder against the applicant.
It was not contended for the applicant that he had any right of appeal to this Court under the Criminal Code and…

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 Lowrie

Details

AGLC: R v Lowrie [1997] QCA 434
Case: [1997] QCA 434
Decision Date: 2 December 1997

CaseChat Overview and Summary

This case involved an application for leave to appeal against decisions made by Dowsett J and White J in criminal proceedings. The applicant, Kerry Catherine Lowrie, was charged with being an accessory after the fact to murder. The appeal sought to challenge the decisions of Dowsett J not to accept a plea on the charge and White J's refusal to stay or quash an indictment for murder. The Court of Appeal had to determine whether it had jurisdiction to hear the appeal. The majority of the Court held that it did not have jurisdiction to entertain the appeal against White J's orders as there was no right of appeal against interlocutory orders made in criminal trials on indictment. The majority reasoned that the relevant statutory provisions did not confer such a right of appeal. Shepherdson J dissented, arguing that the Court had inherent jurisdiction to grant a stay for abuse of process and that there was a right of appeal against a refusal to grant such a stay. However, the majority view was that the Court of Appeal's jurisdiction was limited to appeals against convictions and sentences as provided for in the Criminal Code. The applications for leave to appeal were therefore dismissed.

Orders