Muir, Fraser and Chesterman JJA Separate reasons for judgment of each member of the Court, Muir and Chesterman JJA concurring as to the orders made, Fraser JA dissenting
ORDERS:
1. Appeal allowed
2. The conviction is quashed
3. The order for imprisonment is set aside
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARDON, COMMUTATION OF PENALTY, REFERENCE ON PETITION FOR PARDON AND INQUIRY AFTER CONVICTION – REFERENCE TO COURT – where petitioner was convicted in October 2006 of engaging in sexual intercourse with a person who was under 16 years old, whilst outside Australia – where petitioner unsuccessfully appealed against conviction and sentence in April 2007 - where in March 2008 the petitioner applied to the Commonwealth Minister for Home Affairs for a pardon or, alternatively, requested that his case be referred to the Court of Appeal pursuant to s 672A of the Criminal Code 1899 (Qld) – where the Minister declined to do so and this decision was challenged by the petitioner in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) – where initial decision was set aside and remitted for consideration under the law by Federal Court – where the Attorney-General for the Commonwealth referred the matter to the Court of Appeal under s 672A
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARDON, COMMUTATION OF PENALTY, REFERENCE ON PETITION FOR PARDON AND INQUIRY AFTER CONVICTION – where issue arose as to whether the Court of Appeal had the requisite jurisdiction of a reference from the Commonwealth Attorney-General under s 672A of the Criminal Code 1899 (Qld) – whether s 68 of the Judiciary Act1903 (Cth) operated to give the Court of Appeal jurisdiction over a referral by the Commonwealth Attorney-General for a Commonwealth offence
CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – TO CONSIDER FRESH EVIDENCE – where petitioner adduced fresh evidence at reference hearing, which in combination it was alleged by the petitioner had the effect of making the guilty verdict unsafe – whether the verdict at trial was unreasonable
Crimes Act1914 (Cth), s 50BA, s 87ZR, s 87ZS Criminal Code 1899 (Qld), s 672A Judiciary Act1903 (Cth), s 2, s 68(2)
[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 Martens (No 2) [2009] QCA 351
Case
[2009] QCA 351
Decision Date
CaseChat Overview and Summary
Martens was convicted in October 2006 of engaging in sexual intercourse with a person under 16 years old while outside Australia. He unsuccessfully appealed the conviction and sentence in April 2007. In March 2008, he applied to the Commonwealth Minister for Home Affairs for a pardon or, alternatively, requested that his case be referred to the Court of Appeal pursuant to s 672A of the Criminal Code 1899 (Qld). The Minister declined to refer the case to the Court of Appeal, a decision that was challenged by Martens in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Federal Court set aside the Minister's decision and remitted it for consideration under the law by the Court of Appeal. The Attorney-General for the Commonwealth referred the matter to the Court of Appeal under s 672A.
The Court of Appeal had to determine whether it had jurisdiction over a referral by the Commonwealth Attorney-General under s 672A of the Criminal Code 1899 (Qld) for a Commonwealth offence. The Court of Appeal had to decide if s 68 of the Judiciary Act 1903 (Cth) operated to give the Court of Appeal jurisdiction over a referral by the Commonwealth Attorney-General. The Court of Appeal also had to consider whether the fresh evidence presented by Martens made the guilty verdict unsafe and unreasonable.
The Court of Appeal held that it did not have jurisdiction to hear a referral from the Commonwealth Attorney-General for a Commonwealth offence under s 672A of the Criminal Code 1899 (Qld). The Court of Appeal found that s 68 of the Judiciary Act 1903 (Cth) did not operate to give the Court of Appeal jurisdiction over a referral by the Commonwealth Attorney-General. The Court of Appeal found that the fresh evidence presented by Martens did not make the guilty verdict unsafe and unreasonable. The Court of Appeal allowed the appeal, quashed the conviction, and set aside the order for imprisonment.