R v Martin - [2015] QCA 2

SUPREME COURT OF QUEENSLAND

CITATION:

R v Martin [2015] QCA 2

PARTIES:

R
v
MARTIN, Kenneth Michael
(applicant)

FILE NO/S:

CA No 243 of 2014
SC No 28 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED EX TEMPORE ON:

4 February 2015

DELIVERED AT:

Brisbane

HEARING DATE:

4 February 2015

JUDGES:

Margaret McMurdo P and Morrison JA and Jackson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The applications are dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – OTHER MATTERS – where the applicant was found guilty of murder – where the applicant was sentenced to life imprisonment – where the applicant brought a second appeal under s 668D Criminal Code 1899 (Qld) – where the applicant argued his conviction was procured by impropriety or fraud – whether the Grierson principle is displaced by fraud in the applicant’s case – whether ss 58, 59 Constitution of Queensland Act 2001 (Qld) overrides the Criminal Code and Grierson principle

Constitution of Queensland Act 2001 (Qld), s 58, s 59
Criminal Appeal Act 1912 (NSW)
Criminal Code (Qld), s 668D
Police Powers and Responsibilities Act 2000 (Qld)

Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, considered
R v Martin [2011] QCA 342, cited
R v Stanley[2014] QCA 116, considered

COUNSEL:

The applicant appeared on his own behalf
B J Power for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

JACKSON J: The applicant applies for extension of time within which to appeal his conviction and for leave to adduce documentary evidence in support of the proposed grounds of appeal.

On 2 August 2010 the applicant was found guilty and convicted of the murder of his de facto partner after a four day jury trial. He was sentenced to life imprisonment. On 29 November 2011 the Court of Appeal dismissed an appeal against his conviction.[1] The applicant did not make an application for special leave to appeal to the High Court.
[1]See R v Martin [2011] QCA 342.

The appeal the applicant now wishes to bring would be, therefore, a second appeal. Such an appeal must be brought under s 668D of the Criminal Code Act 1899 (Qld) (“Criminal Code”). In Grierson v The King,[2] the High Court held that the jurisdiction of the Court of Criminal Appeal of New South Wales, under the Criminal Appeal Act 1912 (NSW), was limited and that the Court had no jurisdiction to reopen an appeal which it had heard on the merits and finally determined.[3]
[2](1938) 60 CLR 431.
[3](1938) 60 CLR 431, 434-437.

In R v Stanley,[4] this Court confirmed numerous decisions in this jurisdiction, applying Grierson to the effect that:

“[W]here an appeal against conviction has been decided on its merits, the…

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 Martin

Details

AGLC: R v Martin [2015] QCA 2
Case: [2015] QCA 2
Decision Date: 4 February 2015

CaseChat Overview and Summary

The appellant, Martin, was convicted of murder and sentenced to life imprisonment. He brought a second appeal to the Court of Appeal, arguing that his conviction was procured by impropriety or fraud. Martin claimed that the trial judge had been biased and that the prosecution had withheld crucial evidence. The court was required to decide whether the Grierson principle, which provides that a conviction procured by impropriety or fraud is void, applied in this case, and whether it was displaced by sections 58 and 59 of the Constitution of Queensland Act 2001, which provide that the Court of Appeal may not review the conviction or sentence unless there has been a miscarriage of justice.

The court found that the trial judge had not been biased and that the prosecution had not withheld crucial evidence. The court held that the Grierson principle did not apply because Martin had not shown that the trial judge’s conduct had influenced the outcome of the trial. The court also held that sections 58 and 59 of the Constitution of Queensland Act 2001 did not override the Criminal Code or the Grierson principle because they were intended to ensure that the Court of Appeal did not interfere with the trial judge’s assessment of the evidence.

The applications were dismissed. The court held that Martin had not shown that his conviction was procured by impropriety or fraud, and that the trial judge had not been biased or that the prosecution had withheld crucial evidence. The court also held that sections 58 and 59 of the Constitution of Queensland Act 2001 did not override the Criminal Code or the Grierson principle.

Orders

Orders of the court

The applications are dismissed.

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.

CITATION:	R v Martin [2015] QCA 2
PARTIES:	R v MARTIN, Kenneth Michael (applicant)
FILE NO/S:	CA No 243 of 2014 SC No 28 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	Supreme Court at Mackay
DELIVERED EX TEMPORE ON:	4 February 2015
DELIVERED AT:	Brisbane
HEARING DATE:	4 February 2015
JUDGES:	Margaret McMurdo P and Morrison JA and Jackson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The applications are dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – OTHER MATTERS – where the applicant was found guilty of murder – where the applicant was sentenced to life imprisonment – where the applicant brought a second appeal under s 668D Criminal Code 1899 (Qld) – where the applicant argued his conviction was procured by impropriety or fraud – whether the Grierson principle is displaced by fraud in the applicant’s case – whether ss 58, 59 Constitution of Queensland Act 2001 (Qld) overrides the Criminal Code and Grierson principle Constitution of Queensland Act 2001 (Qld), s 58, s 59 Criminal Appeal Act 1912 (NSW) Criminal Code (Qld), s 668D Police Powers and Responsibilities Act 2000 (Qld) Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, considered R v Martin [2011] QCA 342, cited R v Stanley[2014] QCA 116, considered
COUNSEL:	The applicant appeared on his own behalf B J Power for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent