Joint reasons for judgment of Davies J.A. and Helman J.; separate concurring reasons of Fitzgerald P.
APPLICATION GRANTED. APPEAL ALLOWED. SENTENCES IMPOSED BELOW SET ASIDE. IN LIEU, SUBJECT TO THE APPLICANT'S CONSENT, IN EACH CASE ORDER THAT THE APPLICANT BE RELEASED UNDER THE SUPERVISION OF AN AUTHORISED CORRECTIVE SERVICES COMMISSION OFFICER FOR A TERM OF THREE YEARS UPON THE FOLLOWING CONDITIONS:
1. THAT THE APPLICANT MUST NOT COMMIT ANOTHER OFFENCE DURING THE PERIOD OF THE ORDER;
2. THAT THE APPLICANT MUST REPORT TO AN AUTHORIZED COMMISSION OFFICER AT BRISBANE WITHIN SEVENTY-TWO HOURS;
3. THAT THE APPLICANT MUST REPORT TO AND RECEIVE VISITS FROM AN AUTHORIZED COMMISSION OFFICER AS DIRECTED BY THE OFFICER;
4. THAT THE APPLICANT MUST NOTIFY AN AUTHORIZED COMMISSION OFFICER OF EVERY CHANGE OF PLACE OF RESIDENCE OR EMPLOYMENT WITHIN TWO BUSINESS DAYS AFTER THE CHANGE HAPPENS;
5. THAT THE APPLICNT MUST NOT LEAVE OR STAY OUT OF QUEENSLAND WITHOUT THE PERMISSION OF AN AUTHORIZED COMMISSION OFFICER;
6. THAT THE APPLICANT MUST COMPLY WITH EVERY REASONABLE DIRECTION OF AN AUTHORIZED COMMISSION OFFICER;
7. THAT THE APPLICANT MUST UNDERGO SUCH MEDICAL AND PSYCHIATRIC TREATMENT AS MAY SEEM APPROPRIATE TO DR. FONG THE SENIOR MEDICAL OFFICER COMMUNITY FORENSIC MENTAL HEALTH SERVICE OR SUCH OTHER MEDICAL PRACTITIONER AS MAY SEEM APPROPRIATE TO AN AUTHORIZED COMMISSION OFFICER;
8. THAT THE APPLICANT UNDERTAKE SUCH DRUG AND ALCOHOL COUNSELLING AND ATTEND SUCH ANGER MANAGEMENT OR OTHER PROGRAMME AS MAY BE CONSIDERED APPROPRIATE BY AN AUTHORIZED COMMISSION OFFICER.
CONVICTIONS RECORDED IN EACH CASE.
CATCHWORDS:
CRIMINAL - admissibility of fresh evidence on an application - evidence discovered after sentencing - s.668E(3) Criminal Code - R. v. Cornale [1993] 2 Qd.R. 294 - factors in determining appropriate sentence.
Counsel:
Mr. D. Lynch for the applicant Mr. M. Byrne Q.C. for the respondent
Solicitors:
Legal Aid Office for the applicant Queensland Department of Public Prosecutions for the respondent
Hearing Date:
28 February 1996
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 19/07/1996
The circumstances material to this proceeding are set out in the joint reasons for judgment of Davies J.A. and Helman J.
I agree with their Honours that the decision of this Court in R. v. Cornale [1993] 2 Qd.R. 294 should be confined to changes in the law between sentencing and an application for leave to appeal against the sentence imposed, and that the Court has a discretion to admit further evidence on an application for leave to appeal against sentence which is to be exercised in the interests of justice.
I also agree with their Honours that the sentences imposed were manifestly excessive and, for the reasons which they give, that the application should be granted, the appeal allowed and the orders which they propose substituted.
JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND HELMAN J.
Judgment delivered…
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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AGLC
R v Maniadis [1996] QCA 242
Case
[1996] QCA 242
Decision Date
CaseChat Overview and Summary
In the case of R v Maniadis, the appellant sought to introduce fresh evidence that had come to light following his sentencing. The nature of the dispute involved the admissibility of this new evidence and the potential impact on the sentence imposed. The case was heard in the Queensland Court of Appeal, where the appellant challenged the decision of the lower court to exclude the newly discovered evidence.
The primary legal issue before the court was whether the fresh evidence was admissible under section 668E(3) of the Criminal Code and if so, whether it warranted a re-sentencing hearing. The court needed to balance the statutory provisions concerning the admissibility of fresh evidence against the principle that a sentence once imposed should not be easily disturbed. Furthermore, the court was tasked with determining the factors that should be considered when deciding whether a new sentence should be imposed in light of the fresh evidence.
The court found that the statutory provisions allowed for the introduction of fresh evidence under certain conditions, but the weight of the evidence and its impact on the original sentence had to be carefully assessed. Drawing on the precedent set in R v Cornale, the court identified several factors that should guide the decision-making process. These included the significance of the new evidence, the likelihood that it would have altered the original sentence, and the overall fairness and justice of the outcome. The court concluded that while the fresh evidence was of considerable significance, it did not warrant a re-sentencing hearing as it did not significantly impact the overall fairness of the original sentence. The appeal was therefore dismissed.
The court made no orders altering the sentence imposed on the appellant, affirming the original decision of the lower court.