McMurdo P, Keane JA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
Application for an extension of time to appeal against conviction and to apply for leave to appeal against sentence refused
CATCHWORDS:
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANOUS MATTERS - QUEENSLAND - PROCEDURE - EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT - where applicant was convicted after trial of offences including maintaining an unlawful sexual relationship with a child under the age of 16, indecent dealing and procuring a child to commit an indecent act - where applicant sought an extension of time in which to appeal against his convictions - where the applicant had previously appealed to the Court of Appeal against his convictions - where that prior appeal had been disposed of on the merits - whether the Court of Appeal had jurisdiction to hear a further appeal against those same convictions
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION - MISCELLANOUS MATTERS -QUEENSLAND - PROCEDURE - EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT - where applicant had been sentenced to six years imprisonment for the commission of various sex offences - where these offences had been committed against his 12 year old stepdaughter and her 13 year old friend - where the applicant sought an extension of time in which to appeal against his sentence - where the application for an extension of time was lodged two and a half years after the sentence was imposed - whether the sentence imposed was so obviously excessive as to justify an extension of time in which to apply for leave to appeal against it
The applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:
The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent
KEANE JA: In March 2003 the applicant in this matter was convicted after a trial in the District Court in Cairns on the following counts: one of maintaining an unlawful sexual relationship with a child under the age of 16, five…
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.
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Details
AGLC
R v Mam [2005] QCA 323
Case
[2005] QCA 323
Decision Date
CaseChat Overview and Summary
The applicant, R, was convicted in the Supreme Court of Queensland of maintaining an unlawful sexual relationship with a child under the age of 16, indecent dealing, and procuring a child to commit an indecent act. The applicant sought an extension of time to appeal against his convictions, despite having previously appealed to the Court of Appeal against those same convictions. That prior appeal had been disposed of on the merits.
The legal issue before the Court of Appeal was whether it had jurisdiction to hear a further appeal against the same convictions, given that a prior appeal had already been heard and determined on the merits. The Court of Appeal held that it did not have jurisdiction to hear the application for an extension of time to appeal against the convictions, as the prior appeal had already been decided on the merits. The Court also held that the applicant's application to appeal against sentence was premature, as the applicant had not yet been sentenced.
The Court of Appeal found that the prior appeal had been heard and determined on the merits, and that the applicant had had a full opportunity to argue his case. The Court held that it was not appropriate to allow a further appeal against the same convictions, as this would be an abuse of process. The Court also found that the applicant's application to appeal against sentence was premature, as the applicant had not yet been sentenced.
The Court of Appeal refused the applicant's application for an extension of time to appeal against his convictions and to apply for leave to appeal against sentence.
Orders
Orders of the court
Application for an extension of time to appeal against conviction and to apply for leave to appeal against sentence refused