R v NI - [2007] QCA 442

SUPREME COURT OF QUEENSLAND

CITATION:

R v NI [2007] QCA 442

PARTIES:

R
v
NI
(applicant)

FILE NO/S:

CA No 109 of 2007
DC No 372 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

14 December 2007

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2007

JUDGES:

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

ORDER:

Application dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL-PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant charged with 15 counts of a sexual nature against two boys – where charges joined – where jury convicted on some counts, directed to acquit on others, and acquitted on the remainder – whether charges properly joined – whether jury properly directed on how evidence of one complainant could be used with respect to charges concerning the other complainant – whether verdicts of not guilty on some counts inconsistent with findings of guilt on other counts – whether principles of s 668E relevant when considering whether an application for extension of time should be granted

Criminal Code 1899 (Qld), s 668E

Armstrong v The Queen (1990) 48 A Crim R 358, considered
Hoch v The Queen (1988) 165 CLR 292, considered
Phillips v The Queen [2006] 225 CLR 303, considered
R v Conley (1982) 6 A Crim R 51, considered
R v GAE [2000] 1 VR 198, considered
R v O’Keefe [2000] 1 Qd R 564, considered
R v Pfennig (1995) 182 CLR 461, applied
R v Salerno [1973] VR 59, considered
R v Tait [1999] 2 Qd R 667, considered
R v Wickham, unreported, Supreme Court of New South Wales, Court of Criminal Appeal, 17 December 1991, BC 9101334
Sutton v The Queen (1984) 152 CLR 528, considered
The Queen v Kilbourne [1973] AC 729, considered
The Queen v Boardman [1975] AC 421, followed

COUNSEL:

P E Smith for the applicant
D L Meredith for the respondent

SOLICITORS:

Connolly Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: On 13 September 2005 the applicant was convicted on five counts of indecent treatment of MS, one count of sodomy with MS, two counts of indecent treatment of PN, and four counts of sodomy with PN. There was a directed acquittal on one count indecent treatment of MS, and the jury returned verdicts of not guilty on two further sodomy counts involving PN. The head sentence was 10 years imprisonment with a recommendation for release on parole after serving three years.

An application seeking an extension of time for leave to appeal was filed on 10 May 2007; supporting material was not filed until November 2007. The applicant was represented at the pre-trial hearing and at the trial by very experienced senior counsel instructed by a firm…

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 NI

Details

AGLC: R v NI [2007] QCA 442
Case: [2007] QCA 442
Decision Date: 14 December 2007

CaseChat Overview and Summary

The applicant, who was convicted of 15 counts of a sexual nature against two boys, appealed against his conviction. The Court of Appeal was required to determine whether the charges were properly joined, whether the jury was properly directed on how evidence of one complainant could be used with respect to charges concerning the other complainant, whether the verdicts of not guilty on some counts were inconsistent with findings of guilt on other counts, and whether the principles of section 668E of the Criminal Code were relevant when considering whether an application for extension of time should be granted.

The Court of Appeal found that the charges were properly joined and that the jury was properly directed on how evidence of one complainant could be used with respect to charges concerning the other complainant. The Court also found that the verdicts of not guilty on some counts were not inconsistent with findings of guilt on other counts. However, the Court found that the applicant's application for an extension of time was not meritorious and was accordingly dismissed.

The Court of Appeal dismissed the applicant's appeal against his conviction and found that the trial judge's directions to the jury were adequate. The Court also found that the verdicts of not guilty on some counts were not inconsistent with findings of guilt on other counts. The Court did not consider it necessary to consider the principles of section 668E of the Criminal Code in relation to the application for an extension of time as the application was dismissed on other grounds.

Orders

Orders of the court

Application 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 NI [2007] QCA 442
PARTIES:	R v NI (applicant)
FILE NO/S:	CA No 109 of 2007 DC No 372 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	14 December 2007
DELIVERED AT:	Brisbane
HEARING DATE:	23 November 2007
JUDGES:	Williams and Muir JJA and McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application dismissed
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL-PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant charged with 15 counts of a sexual nature against two boys – where charges joined – where jury convicted on some counts, directed to acquit on others, and acquitted on the remainder – whether charges properly joined – whether jury properly directed on how evidence of one complainant could be used with respect to charges concerning the other complainant – whether verdicts of not guilty on some counts inconsistent with findings of guilt on other counts – whether principles of s 668E relevant when considering whether an application for extension of time should be granted Criminal Code 1899 (Qld), s 668E Armstrong v The Queen (1990) 48 A Crim R 358, considered Hoch v The Queen (1988) 165 CLR 292, considered Phillips v The Queen [2006] 225 CLR 303, considered R v Conley (1982) 6 A Crim R 51, considered R v GAE [2000] 1 VR 198, considered R v O’Keefe [2000] 1 Qd R 564, considered R v Pfennig (1995) 182 CLR 461, applied R v Salerno [1973] VR 59, considered R v Tait [1999] 2 Qd R 667, considered R v Wickham, unreported, Supreme Court of New South Wales, Court of Criminal Appeal, 17 December 1991, BC 9101334 Sutton v The Queen (1984) 152 CLR 528, considered The Queen v Kilbourne [1973] AC 729, considered The Queen v Boardman [1975] AC 421, followed
COUNSEL:	P E Smith for the applicant D L Meredith for the respondent
SOLICITORS:	Connolly Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent