SUPREME COURT OF QUEENSLAND
CITATION: R v Marriner [2006] QCA 32 PARTIES: R
v
MARRINER, James Arthur
(applicant)FILE NO/S: CA No 191 of 2005
DC No 2370 of 2003DIVISION: Court of Appeal PROCEEDING: Miscellaneous Application – Criminal ORIGINATING
COURT:District Court at Brisbane DELIVERED ON: 17 February 2006 DELIVERED AT: Brisbane HEARING DATE: 8 February 2006 JUDGES: de Jersey CJ, McPherson and Williams JJA
Separate reasons for judgment of each member of the Court,
each concurring as to the orders madeORDER:
1. Appeal or application for leave to appeal against the order refusing the application under s 188 of the Penalties and Sentences Act to re-open the sentence imposed on 3 October 2003 dismissed 2. Application to set aside abandonment of notice of appeal or to reinstate application for leave to appeal against sentence refused CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – MISCELLANEOUS POWERS OF COURTS AND JUDGES – application to re-open sentence – whether right of appeal conferred by legislation – whether order appealed against capable of categorisation as a “sentence” as defined in s 668D of the Criminal Code – whether order capable of being regarded as “in consequence of” the applicant’s conviction at trial – whether a discernable relationship exists between the order appealed against and the conviction – s 188 Penalties and Sentences Act 1992 (Qld) – whether avenue for appeal exists under s 118 District Court of Queensland Act 1967 (Qld) CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – where application for leave to appeal abandoned – principles to be applied in setting aside abandonment and reinstating application – whether circumstances sufficient to meet “interests of justice” requirement in Rule 69(4) of the Criminal Practice Rules 1999 (Qld) – whether appeal, if reinstated, would have any prospects of success – whether sentence manifestly excessive Criminal Code 1899 (Qld), s 668D
Criminal Practice Rules 1999 (Qld), r 69(4)
District Court of Queensland Act 1967 (Qld), s 118
Penalties and Sentences Act 1992 (Qld), s 188R v Amery [1999] QCA 236; CA No 119 of 1999, 18 June
1999, considered
R v Blow [1963] QWN 1, distinguished
R v Cassar, ex p Attorney-General [2001] QCA 300; [2002] 1
Qd R 386, distinguished
R v Smith [1997] QCA 109; CA No 566 of 1996, 9 May
1997, considered
R v Green [1989] 1 Qd R 408, cited
R v Harman [1959] 2 QB 134, cited
R v Mackenzie [2000] QCA 324; [2002] 1 Qd R 410, cited
R v Shambrook [1997] QCA 356: CA No 359 of 1996, 21
October 1997, considered
R v Tabe [1983] 2 Qd R 60, cited
Stewart v The King (1921) 29 CLR 234, citedCOUNSEL: P E Smith for the applicant S G Bain for the respondent SOLICITORS: Howden Saggers Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the
respondent
de JERSEY CJ: I have had the advantage of reading the reasons for…
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- AGLC
- R v Marriner [2006] QCA 32
- Case
- [2006] QCA 32
- Decision Date
CaseChat Overview and Summary
In the case of R v Marriner, the respondent sought to appeal against a decision of the District Court of Queensland that dismissed his application to re-open his sentence. The applicant had been convicted and sentenced in 2003, and his appeal against the sentence was abandoned. He later sought to re-open the sentence under section 188 of the Penalties and Sentences Act 1992 (Qld), which was refused. The applicant sought to appeal against this refusal but first had to apply to the Court of Appeal to set aside the abandonment of his original notice of appeal or to reinstate the application for leave to appeal against the sentence.
The primary legal issues before the court were whether the right of appeal was conferred by legislation, whether the order appealed against could be categorised as a “sentence” under section 668D of the Criminal Code, whether there was a discernable relationship between the order and the conviction, and whether an avenue for appeal existed under section 118 of the District Court of Queensland Act 1967. The court had to determine whether the order refusing to re-open the sentence was appealable and whether the application to set aside the abandonment of the notice of appeal or to reinstate the application for leave to appeal against the sentence was valid.
The court held that the order refusing to re-open the sentence was not a “sentence” within the meaning of section 668D of the Criminal Code, and therefore, there was no right of appeal. The court also found that there was no discernable relationship between the order and the conviction. The court further held that the order was not appealable under section 118 of the District Court of Queensland Act 1967, as it did not fall within the scope of that provision. Consequently, the application to set aside the abandonment of the notice of appeal or to reinstate the application for leave to appeal against the sentence was also refused.
The court dismissed the appeal or application for leave to appeal against the order refusing the application to re-open the sentence imposed on 3 October 2003 and refused the application to set aside the abandonment of the notice of appeal or to reinstate the application for leave to appeal against the sentence.
The primary legal issues before the court were whether the right of appeal was conferred by legislation, whether the order appealed against could be categorised as a “sentence” under section 668D of the Criminal Code, whether there was a discernable relationship between the order and the conviction, and whether an avenue for appeal existed under section 118 of the District Court of Queensland Act 1967. The court had to determine whether the order refusing to re-open the sentence was appealable and whether the application to set aside the abandonment of the notice of appeal or to reinstate the application for leave to appeal against the sentence was valid.
The court held that the order refusing to re-open the sentence was not a “sentence” within the meaning of section 668D of the Criminal Code, and therefore, there was no right of appeal. The court also found that there was no discernable relationship between the order and the conviction. The court further held that the order was not appealable under section 118 of the District Court of Queensland Act 1967, as it did not fall within the scope of that provision. Consequently, the application to set aside the abandonment of the notice of appeal or to reinstate the application for leave to appeal against the sentence was also refused.
The court dismissed the appeal or application for leave to appeal against the order refusing the application to re-open the sentence imposed on 3 October 2003 and refused the application to set aside the abandonment of the notice of appeal or to reinstate the application for leave to appeal against the sentence.
Orders
Orders of the court
1.
Appeal or application for leave to appeal against the order refusing the application under s 188 of the Penalties and Sentences Act to re-open the sentence imposed on 3 October 2003 dismissed
2.
Application to set aside abandonment of notice of appeal or to reinstate application for leave to appeal against sentence refused
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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