Legal Research
Cases
R v Marriner

R v Marriner

Case [2006] QCA 32 18 May 2007

Type to search within this case.

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 2003
DIVISION: 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 made
ORDER:

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 188
R 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, cited
COUNSEL: 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…

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 Marriner

Details

AGLC: R v Marriner [2006] QCA 32
Case: [2006] QCA 32
Decision Date: 18 May 2007

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.

Orders

Orders of the court

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

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Marriner [2006] QCA 32

Most Recent Citation

R v Cifuentes [2006] QCA 566

Cases citing this decision · 17 of 17 shown

Hickey v Commissioner of Police
[2023] QDC 181 Para 3

…3] QWN 1 per Gibbs J at 4, following R v Harman [1959] 2 QB 134. R v Blow was followed in R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, in which McPherson JA observed that it is not every order following chronologically after conviction that amounts to a “sentence” on conviction: “There must be a relationship o…
Aitchison v Director of Public Prosecutions (ACT)
[2021] ACTCA 21 Para 1

…Tas R 42, Grierson v The King (1938) 60 CLR 431 ( Grierson ), Bridges v The Queen (1998) 20 WAR 59, R v McNamara (No 2) [1997] 1 VR 257, R v Marriner [2006] QCA 32; 1 Qd R 179, Tognolini v The Queen (No 2) [2012] VSCA 311, R v Clark [2003] NSWCCA 308 and Burridge v Chief Magistrate of the Magistrates Court of th…
R v Walker
[2020] QCA 281

…appeal Criminal Practice Rules 1999 (Qld), r 70(3) R v Basacar [2008] QCA 285, cited R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, cited R v Walker [2019] QCA 199, related COUNSEL: The applicant appeared on her own behalf G J Cummings for the respondent SOLICITORS: The applicant appeared on her own behalf Dire…
R v Gerhardt
[2019] QCA 283

…A 329, followed R v Garbett (1847) 1 Den 236; (1847) 169 ER 227; [1847] EngR 36, followed R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, cited R v Norden [2009] 2 Qd R 455; [2009] QCA 42, cited R v Riley [1896] 1 QB 309, applied COUNSEL: A Hoare with R Lake for the applicant J A Geary for the respondent SOLICITO…
R v Milne
[2016] QCA 235

…[2][2006] QCA 32; [2007] 1 Qd R 179 at 183.…
R v Williams
[2016] QCA 204

…The Queen (2006) 80 ALJR 614; [2006] HCA 9, cited R v Basacar [2008] QCA 285, cited R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, cited R v O’Hara [2015] QCA 283, cited R v Upson (No 2) (2013) 229 A Crim R 275; [2013] QCA 149, applied R v Williams [2015] QCA 276, cited Walton v Gardiner (1993) 177 CLR 378; [199…
Ralph v Commissioner of Police
[2015] QDC 206

…The King (1936) 55 CLR 499 R v Blow [1963] QWN 1 R v Harman [1959] 2 QB 134 R v Johnston [2008] QCA 291 R v Marriner [2007] 1 Qd R 179; [2006] QCA 32 Schneider v Curtis [1967] Qd. R. 300 Teelow v Commissioner of Police [2009] QCA 84 White v Commissioner of Police [2014] QCA 121 COUNSEL: Cummings, G. of Counsel f…
R v Cherry
[2014] QCA 262 Para 1

…nder s 188 did not give rise to any appeal rights under the Criminal Code 1899 (Qld). [1] R v Cherry [2004] QCA 328. [2] R v Cherry [2014] QSC 58. [3][2006] QCA 32.…
R v BBK (No 2)
[2014] QCA 71

…QCA 2, cited R v Christensen [2007] QCA 56, considered R v Johnston [2008] QCA 291, considered R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, followed R v Upson (No 2) [2013] QCA 149, distinguished COUNSEL: The applicant appeared on his own behalf P J McCarthy for the respondent SOLICITORS: The applicant appear…
R v Pearce
[2011] QCA 290

…86) 160 CLR 392; [1986] HCA 26, cited R v Basacar [2008] QCA 285, considered R v DAQ [2008] QCA 75, applied R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, considered COUNSEL: The applicant appeared on his own behalf D A Holliday for the respondent SOLICITORS: The applicant appeared on his own behalf Director of…
R v Norden
[2009] QCA 42

…R v Holley, ex parte Attorney-General [1997] 2 Qd R 407; [1996] QCA 480, applied R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, considered R v Muller [2006] 2 Qd R 126; [2005] QCA 417, applied R v Stevens [2006] QCA 361, cited COUNSEL: J Sharp for the applicant/appellant G P Cash for the respondent SOLICITORS:…
R v. Hansen
[2008] QCA 351 Para 2

…In determining that question the decisions of this court in R v Basacar and R v Marriner [2006] QCA 32 require three things to be considered. They are: (a) The reason for the abandonment of the appeal in the first place; (b) The explanation for any delay that has occurred in the meantime; and (c) The prospects o…
R v Johnston
[2008] QCA 291 Para 1

…[1963] QWN 1 per Gibbs J at 4, following R v Harman [1959] 2 QB 134. R v Blow was followed in R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, in which Mc Pherson JA observed that it is not every order following chronologically after conviction that amounts to a “sentence” on conviction: “There must be a relations…
R v Basacar
[2008] QCA 285

…99) (Qld), r 70 R v Green [1989] 1 Qd R 408, cited R v Griffin [1969] 2 NSWR 497, cited R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, cited R v Tabe [1983] 2 Qd R 60, cited COUNSEL: The applicant appeared on his own behalf M J Copley for the respondent SOLICITORS: The applicant appeared on his own behalf Direct…
R v MBC
[2008] QCA 263

…pplied R v BBI [2007] QCA 376, applied R v Conway; ex parte A-G (Qld) [2002] QCA 507, cited R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, applied COUNSEL: B H P Mumford for the applicant S G Bain for the respondent SOLICITORS: P W Skewes & Dempster (Longreach) for the applicant Director of Public Prosecutions (…
R v. Christensen
[2007] QCA 56 Para 1

…In R v Marriner [2006] QCA 32, it was held there is no right of appeal against an order made under s 188(1)(c) of the Penalties and Sentences Act refusing to reopen a sentence. That is because, as put by McPherson JA with the agreement of the other members of the court, “no right of appeal against that order is…
R v Cifuentes
[2006] QCA 566 Para 1

…months. He referred this Court to many sentences imposed for similar offences, including sentences involving police officers. Those were R v Marriner [2006] QCA 32, [1] R v Smith [1997] QCA 109, [2] and the decision in New South Wales of R v O’Mally [2005] NSW CCA 166.[3] [1]CA No 191 of 2005, 17 February 2006.…

View all 17 citing cases →

Cases cited in this decision · 8 of 8 shown

R v M
[2004] QCA 184 Para 4

…It is not necessary to refer to the detail of the appellant’s career of offending, which is set out in the reasons of the Court of Appeal in R v M [2004] QCA 184. An accusation of having committed unlawful carnal knowledge might to some youths seem almost as much a matter of pride as of shame; but the complainan…
R v Cassar; Ex parte Attorney-General (Qld)
[2001] QCA 300

…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 3…
R v MacKenzie
[2000] QCA 324

…y 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, cited COUNSEL: P E Smit…
R v Amery
[1999] QCA 236 Para 5

…cant’s counsel the only ones that concerned extortion or attempt to extort under s 416 of the Code were R v Shambrook [1997] QCA 356, and R v Amery [1999] QCA 236. The others including R v Smith [1997] QCA 109 were convictions for extortion by public officers under s 88 of the Code, which, although it uses the wo…
R v Shambrook
[1997] QCA 356 Para 5

…hich we were referred by applicant’s counsel the only ones that concerned extortion or attempt to extort under s 416 of the Code were R v Shambrook [1997] QCA 356, and R v Amery [1999] QCA 236. The others including R v Smith [1997] QCA 109 were convictions for extortion by public officers under s 88 of the Code,…
R v Smith
[1997] QCA 109 Para 5

…ortion or attempt to extort under s 416 of the Code were R v Shambrook [1997] QCA 356, and R v Amery [1999] QCA 236. The others including R v Smith [1997] QCA 109 were convictions for extortion by public officers under s 88 of the Code, which, although it uses the word “extortion”, is directed to the very differe…
Stewart v R
[1921] HCA 17

…brook [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, cited COUNSEL: 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 responde…
[1959] 2 QB 134
[1959] 2 QB 134 Para 6

…ether or not the order is made instead of passing sentence.” In R v Blow [1963] QWN 1, the Court of Criminal Appeal, following R v Harman [1959] 2 QB 134, held the expression “on conviction” does not mean “at the time of conviction”, but “in consequence of conviction”.…

Legislation cited in this decision · 5

Criminal Practice Rules 1999 (Qld)
69(4) 2 mentions (from Para 1)
District Court of Queensland Act 1967 (Qld)
118 2 mentions (from Para 12)
Penalties and Sentences Act 1992 (Qld)
188 2 mentions (from Para 4)
Criminal Practice Rules 1900 (QLD)
1 mention (from Para 16)
Supreme Court of Queensland Act 1991 (Qld)
1 mention (from Para 5)