R v Martens (No 2)

Case [2009] QCA 351


SUPREME COURT OF QUEENSLAND

CITATION:

R v Martens [2009] QCA 351

PARTIES:

R
v
MARTENS, Frederic Arthur
(petitioner)

FILE NO/S:

CA No 85 of 2009
SC No 83 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Reference under s 672A Criminal Code

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

13 November 2009

DELIVERED AT:

Brisbane

HEARING DATE:

9 September 2009; 10 September 2009

JUDGES:

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 Act 1903 (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 Act 1914 (Cth), s 50BA, s 87ZR, s 87ZS
Criminal Code
1899 (Qld), s 672A
Judiciary Act
1903 (Cth), s 2, s 68(2)

Allen, Allen and Winter (1910) 5 Cr App Rep 225, cited
Grierson v The King
(1938) 60 CLR 431; [1938] HCA 45, cited
Hay v Justices of the Tower Division of London (1890) 24 QBD 561, considered
Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68, cited
Martens v Commonwealth & Another (2009) 174 FCR 114

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Details
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.

Orders

Orders of the court

1. Appeal allowed

2. The conviction is quashed

3. The order for imprisonment is set aside

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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