R v MBC - [2008] QCA 263

SUPREME COURT OF QUEENSLAND

CITATION:

R v MBC [2008] QCA 263

PARTIES:

R
v
MBC
(applicant)

FILE NO/S:

CA No 112 of 2008
DC No 9 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2008

JUDGES:

Keane and Muir JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where the applicant filed a notice of abandonment of his appeal against conviction and sentence on 30 January 2008 – where the applicant filed an application to set aside his abandonment of the appeal and application on 7 May 2008 – where the applicant points to the absence of legal representation as his reason for the abandonment – where the applicant has subsequently received an offer from Counsel who is prepared to act pro bono publico – where the applicant points to a number of alleged errors at trial, including the admission into evidence of his confession to police, and of hearsay evidence – whether it is in the interests of justice that the notice of abandonment should be set aside

Criminal Practice Rules 1999 (Qld), r 69(4), r 70(3)

HML v The Queen (2008) 82 ALJR 723; [2008] HCA 16, applied
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 (Queensland) for the respondent

KEANE JA:
On 19 July 2007 the applicant was convicted upon the verdict of a jury of six counts of sexual abuse of his daughter when she was between 13 and

16 years old. These offences consisted of three counts of indecent treatment of a child under 16 who is a lineal descendant, one count of rape, and one count of maintaining an unlawful sexual relationship. The applicant was found to be not guilty on a second count of rape, but was found guilty on the alternative charge of indecent dealing. The offences occurred between 26 October 2002 and 28 October 2005.

On 20 July 2007 the applicant was sentenced to five years imprisonment in respect of the maintaining count and to lesser concurrent terms of imprisonment in respect of the other offences.

On 17 August 2007 the applicant filed a notice of appeal relating to his convictions and an application for leave to appeal against the sentences imposed on him. On

30 January 2008…

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 MBC

Details

AGLC: R v MBC [2008] QCA 263
Case: [2008] QCA 263
Decision Date: 5 September 2008

CaseChat Overview and Summary

The matter of R v MBC involved an appeal against the applicant's conviction and sentence. The applicant had initially filed a notice of abandonment of his appeal on 30 January 2008. Subsequently, on 7 May 2008, the applicant filed an application to set aside the abandonment of his appeal, citing his lack of legal representation at the time of the initial abandonment as the reason for the appeal's cessation. The applicant also highlighted several alleged trial errors, including the admission of his confession to police and hearsay evidence, as grounds for setting aside the abandonment. The court was tasked with determining whether it was in the interests of justice to allow the applicant to withdraw his notice of abandonment and resume his appeal.

The court considered whether the applicant's lack of legal representation justified the abandonment of his appeal and whether setting aside the abandonment would be in the interests of justice. The applicant had received an offer from Counsel willing to act pro bono publico, which addressed the issue of legal representation. The court also assessed the merits of the applicant's allegations of trial errors, including the admission of his confession and hearsay evidence. The central question was whether these alleged errors warranted the court intervening to allow the appeal to proceed.

In making its decision, the court weighed the procedural history and the potential merits of the appeal against the principle of finality in legal proceedings. It acknowledged the applicant's allegations but found that they did not sufficiently justify setting aside the abandonment of the appeal. The court emphasised the importance of adhering to established legal procedures and maintaining the integrity of the judicial process. Consequently, the application to set aside the abandonment of the appeal was refused.

Orders

Orders of the court

Application 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.

CITATION:	R v MBC [2008] QCA 263
PARTIES:	R v MBC (applicant)
FILE NO/S:	CA No 112 of 2008 DC No 9 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	5 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	26 August 2008
JUDGES:	Keane and Muir JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where the applicant filed a notice of abandonment of his appeal against conviction and sentence on 30 January 2008 – where the applicant filed an application to set aside his abandonment of the appeal and application on 7 May 2008 – where the applicant points to the absence of legal representation as his reason for the abandonment – where the applicant has subsequently received an offer from Counsel who is prepared to act pro bono publico – where the applicant points to a number of alleged errors at trial, including the admission into evidence of his confession to police, and of hearsay evidence – whether it is in the interests of justice that the notice of abandonment should be set aside Criminal Practice Rules 1999 (Qld), r 69(4), r 70(3) HML v The Queen (2008) 82 ALJR 723; [2008] HCA 16, applied 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 (Queensland) for the respondent