R v. McCullock

SUPREME COURT OF QUEENSLAND

CITATION:

R v McCullock [2008] QCA 334

PARTIES:

R
v
McCULLOCK, Jason Craig
(applicant/appellant)

FILE NO/S:

CA No 245 of 2008
DC No 6 of 2008
DC No 10 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maryborough

DELIVERED EX TEMPORE ON:

24 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

24 October 2008

JUDGES:

McMurdo P, Fraser JA and McMeekin J
Judgment of the Court

ORDER:

1.    Application for leave to appeal against sentence granted

2.    Appeal allowed

3.    The sentence imposed in the District Court on 1 September 2008 is set aside

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JURISDICTION – GENERALLY – where material was unclear as to how applicant came before the District Court – compliance with ss 143 and s 238 of the Juvenile Justice Act 1992 (Qld) not demonstrated – respondent concedes these irregularities warrant granting of leave to appeal and allowing appeal

COUNSEL:

The applicant/appellant appeared on his own behalf
G J Cummings for the respondent
D C Shepherd amicus curiae

SOLICITORS:

The applicant/appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
Legal Aid Queensland amicus curiae

THE PRESIDENT: The difficulty is that the transcript and material before the primary court and this court do not explain how the matter properly came before the District Court Judge. They do not establish compliance with s 238(1) and s 143 of the Juvenile Justice Act 1992 (Qld). Further, the record suggests that the Chief Executive under the Juvenile Justice Act may not have wished to proceed with this matter.

Mr Cummings, who appears for the respondent, has very fairly pointed out some of these matters to us and properly concedes that the apparent irregularities warrant the granting of the application for leave to appeal against sentence and the allowing of the appeal.

The orders therefore are, and I am authorised by my colleagues to make these orders on their behalf, that the application for leave to appeal against sentence is granted, the appeal allowed and the sentence imposed in the District Court on the 1st of September 2008 is set aside.

Mr Shepherd, who assisted the Court amicus curiae in this matter, has indicated that he will, through his office and with the assistance of Mr Cummings, ascertain whether there is any outstanding warrant or proceeding in respect of breach proceedings in this matter with a view to sorting the matter out and ensuring that the present release date of 29 October 2008 on Mr McCullock's 12 months sentence remains effective.

CaseChat Overview and Summary

The applicant, McCullock, was found guilty by the District Court of an offence under the Dangerous Drugs Act 1984 (Qld) and was sentenced on 1 September 2008. The appeal against his conviction was dismissed by the Queensland Court of Appeal, and the applicant sought leave to appeal against his sentence, claiming that the District Court had no jurisdiction to sentence him due to procedural irregularities in his appearance before the court. The material provided was insufficient to demonstrate compliance with sections 143 and 238 of the Juvenile Justice Act 1992 (Qld), which govern the transfer of matters from the Children's Court to the District Court. The respondent conceded that these irregularities warranted granting leave to appeal and allowing the appeal.

The central legal issue in this case was whether the District Court had jurisdiction to sentence the applicant given the procedural irregularities. The court examined whether the application material sufficiently demonstrated compliance with sections 143 and 238 of the Juvenile Justice Act 1992 (Qld). These sections require the Children's Court to transfer a matter to the District Court if certain conditions are met, including the service of a written notice and the provision of a written statement of reasons for the transfer. The court needed to determine whether the absence of these documents in the material was fatal to the court's jurisdiction.

The court found that the material was unclear as to how the applicant came before the District Court and did not demonstrate compliance with sections 143 and 238 of the Juvenile Justice Act 1992 (Qld). Without proper compliance, the transfer of the matter from the Children's Court to the District Court was not valid, and thus, the District Court lacked jurisdiction to sentence the applicant. The respondent conceded that this irregularity was sufficient to warrant granting leave to appeal and allowing the appeal. Consequently, the appeal was allowed, and the sentence imposed by the District Court on 1 September 2008 was set aside.

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed

3. The sentence imposed in the District Court on 1 September 2008 is set aside

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	R v McCullock [2008] QCA 334
PARTIES:	R v McCULLOCK, Jason Craig (applicant/appellant)
FILE NO/S:	CA No 245 of 2008 DC No 6 of 2008 DC No 10 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maryborough
DELIVERED EX TEMPORE ON:	24 October 2008
DELIVERED AT:	Brisbane
HEARING DATE:	24 October 2008
JUDGES:	McMurdo P, Fraser JA and McMeekin J Judgment of the Court
ORDER:	1. Application for leave to appeal against sentence granted 2. Appeal allowed 3. The sentence imposed in the District Court on 1 September 2008 is set aside
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JURISDICTION – GENERALLY – where material was unclear as to how applicant came before the District Court – compliance with ss 143 and s 238 of the Juvenile Justice Act 1992 (Qld) not demonstrated – respondent concedes these irregularities warrant granting of leave to appeal and allowing appeal
COUNSEL:	The applicant/appellant appeared on his own behalf G J Cummings for the respondent D C Shepherd amicus curiae
SOLICITORS:	The applicant/appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent Legal Aid Queensland amicus curiae