R v McBride - [2011] QCA 25

SUPREME COURT OF QUEENSLAND

CITATION:

R v McBride [2011] QCA 25

PARTIES:

R
v
McBRIDE, John Grant
(applicant/appellant)

FILE NO/S:

CA No 262 of 2010
DC No 3089 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)
Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Orders delivered ex tempore 16 February 2011
Reasons delivered 22 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2011

JUDGES:

Margaret McMurdo P, Fraser and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 16 February 2011:

1.    Application for an extension of time is granted.

2.    Time to appeal is extended to 4 November 2010.

3.    Appeal allowed.

4.    The conviction entered following the applicant's plea of guilty is set aside and instead a verdict of acquittal is entered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant pleaded guilty to contravening a protection order in favour of the complainant after being convicted of indictable offences against the complainant – where the only basis of the contravention was the facts of the indictable offences – where the convictions of the indictable offences were set aside in a previous appeal and the applicant was acquitted in a subsequent re-trial – where an appeal against the conviction of the contravention had been overlooked – whether a miscarriage of justice would occur if an extension of time were refused

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where the applicant pleaded guilty to contravening a protection order in favour of the complainant after being convicted of indictable offences against the complainant – where the only basis of the contravention was the facts of the indictable offences –where plea for the contravention was entered after a notice of appeal against conviction of the indictable offences was filed – where the decision to plead guilty was not a fully informed forensic choice – whether the conviction should be set aside notwithstanding the applicant’s plea of guilty

Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, applied
R v Carkeet [2009] 1 Qd R 190; [2008] QCA 143, considered
R v GV [2006] QCA 394, applied
R v McBride [2008] QCA 412, cited
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied

COUNSEL:

R Clutterbuck for the applicant/appellant
D L Meredith for the respondent

SOLICITORS:

McMillan Legal for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

[1] MARGARET McMURDO P: At the hearing of this matter on 16 February 2011, the Court granted the application for an extension of time to appeal against conviction, extended the time for appealing against conviction to 4 November 2010, allowed the appeal, set aside the conviction and instead ordered that a verdict of…

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 McBride

Details

AGLC: R v McBride [2011] QCA 25
Case: [2011] QCA 25
Decision Date: 16 February 2011

CaseChat Overview and Summary

The case of R v McBride involved an applicant who had pleaded guilty to contravening a protection order after having been convicted of indictable offences against the complainant. The applicant's appeal against the conviction for the indictable offences had been overlooked, leading to a situation where the conviction for the contravention of the protection order remained unchallenged. The applicant sought an extension of time to appeal the conviction of the contravention and argued that a miscarriage of justice would occur if the extension was refused. The case was heard in the relevant appellate court.

The central legal issues addressed by the court were whether the applicant's plea of guilty to the contravention of the protection order could be set aside and whether an extension of time to appeal should be granted. The court had to consider whether the applicant's decision to plead guilty was a fully informed forensic choice, particularly given that the plea was entered after a notice of appeal against the conviction of the indictable offences was filed. Additionally, the court needed to determine whether the oversight of the appeal against the indictable offences conviction constituted a miscarriage of justice warranting an extension of time to appeal the contravention conviction.

The court found that the applicant's plea for the contravention was not a fully informed forensic choice due to the timing and the circumstances surrounding the notice of appeal filed against the indictable offences conviction. The court concluded that the oversight of the appeal against the indictable offences conviction did indeed constitute a miscarriage of justice, thereby justifying an extension of time to appeal the contravention conviction. Consequently, the court granted the application for an extension of time, set the new appeal date, allowed the appeal, and set aside the conviction, entering a verdict of acquittal in its place.

The final orders of the court were that the application for an extension of time was granted, with the time to appeal extended to 4 November 2010. The appeal was allowed, and the conviction entered following the applicant's plea of guilty was set aside, with a verdict of acquittal being entered instead.

Orders

Orders of the court

Delivered ex tempore on 16 February 2011:

1. Application for an extension of time is granted.

2. Time to appeal is extended to 4 November 2010.

3. Appeal allowed.

4. The conviction entered following the applicant's plea of guilty is set aside and instead a verdict of acquittal is entered.

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 McBride [2011] QCA 25
PARTIES:	R v McBRIDE, John Grant (applicant/appellant)
FILE NO/S:	CA No 262 of 2010 DC No 3089 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction) Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	Orders delivered ex tempore 16 February 2011 Reasons delivered 22 February 2011
DELIVERED AT:	Brisbane
HEARING DATE:	16 February 2011
JUDGES:	Margaret McMurdo P, Fraser and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 16 February 2011: 1. Application for an extension of time is granted. 2. Time to appeal is extended to 4 November 2010. 3. Appeal allowed. 4. The conviction entered following the applicant's plea of guilty is set aside and instead a verdict of acquittal is entered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant pleaded guilty to contravening a protection order in favour of the complainant after being convicted of indictable offences against the complainant – where the only basis of the contravention was the facts of the indictable offences – where the convictions of the indictable offences were set aside in a previous appeal and the applicant was acquitted in a subsequent re-trial – where an appeal against the conviction of the contravention had been overlooked – whether a miscarriage of justice would occur if an extension of time were refused CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where the applicant pleaded guilty to contravening a protection order in favour of the complainant after being convicted of indictable offences against the complainant – where the only basis of the contravention was the facts of the indictable offences –where plea for the contravention was entered after a notice of appeal against conviction of the indictable offences was filed – where the decision to plead guilty was not a fully informed forensic choice – whether the conviction should be set aside notwithstanding the applicant’s plea of guilty Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, applied R v Carkeet [2009] 1 Qd R 190; [2008] QCA 143, considered R v GV [2006] QCA 394, applied R v McBride [2008] QCA 412, cited R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied
COUNSEL:	R Clutterbuck for the applicant/appellant D L Meredith for the respondent
SOLICITORS:	McMillan Legal for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent