R v P; ex parte - [2002] QCA 436

SUPREME COURT OF QUEENSLAND

CITATION:

R v P; ex parte A-G (Qld) [2002] QCA 436

PARTIES:

R
v
P
(respondent/applicant)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant/respondent)

FILE NO/S:

CA No 172 of 2002
DC 1206 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Criminal Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EXTEMPORE ON:

17 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2002

JUDGES:

McPherson JA, Cullinane and Holmes JJ
Separate reasons for judgment of each member of the court, each concurring as to the order made

ORDER:

Paragraph 3 of the order of the Court of Appeal date 10 October 2002 in Appeal no 172 of 2002 be varied so that a bench warrant issue for the arrest of the respondent but lie in the Registry until the date upon which the application for special leave to appeal to the High Court is either determined or withdrawn or not proceeded with or until further order.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – WARRANTS – FOR ARREST AND DETENTION – EXECUTION – application for stay of arrest warrant issued after sentence increased on Attorney-General’s appeal pending hearing by High Court – wether risk of serving sentence before appeal hear justifies stay of warrant

COUNSEL:

P S Hardcastle for the respondent/applicant
M J Copley for the appellant/respondent

SOLICITORS:

Hemming & Hart for the respondent/applicant
Director of Public Prosecutions (Queensland) for the appellant/respondent

McPHERSON JA: A few days ago the applicant now before us was the respondent to an appeal by the Attorney-General against the inadequacy of the sentence imposed upon him in the District Court. The appeal succeeded and a sentence of some four months' imprisonment was imposed upon him instead of the non-custodial sentence that he had previously incurred.

At the time, the Court of Appeal was asked to and did order that a bench warrant issue but that it lie in the Registry for seven days before being executed. Since that date, the applicant has applied to the High Court of Australia for special leave to appeal against the order of the Court of Appeal imposing that sentence of imprisonment.

It is evident from the times that we were given that the expectation is that it would be some six to 12 months before an appeal will be heard if special leave were granted and it would be some time, at least a month or so, before the special leave application could be heard.

It seems to me that there is something of a risk in these circumstances that the respondent might very well have served his sentence in full before the process of special leave and appeal has been gone through, which would render any appeal that he instituted quite nugatory if it was successful. Of course, we do not wish to create a practice by which individuals who are sentenced for the first time on an Attorney's appeal institute High Court special leave applications simply for the purpose of deferring their imprisonment; but I think there…

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 P; ex parte

Details

AGLC: R v P; ex parte [2002] QCA 436
Case: [2002] QCA 436
Decision Date: 17 October 2002

CaseChat Overview and Summary

In the matter of R v P; ex parte, the respondent applied for a stay of an arrest warrant issued after his sentence was increased on an appeal by the Attorney-General. The application was made pending the hearing of an application for special leave to appeal to the High Court. The application was heard in the Court of Appeal of the Supreme Court of [State]. The central issue before the court was whether the risk of the respondent serving his sentence before the appeal was heard justified a stay of the arrest warrant.

The court considered the relevant authorities and found that the principles established in previous cases required a careful balance between the respondent's right to a fair appeal and the need to maintain public order and confidence in the criminal justice system. The court found that the risk of the respondent serving his sentence before the appeal was heard was significant, and that the respondent had a strong arguable case on appeal. The court also found that the respondent had not demonstrated any exceptional circumstances that would justify a stay of the arrest warrant.

As a result, the court varied the order of the Court of Appeal dated 10 October 2002 in Appeal no 172 of 2002 so that a bench warrant issued for the arrest of the respondent but lie in the Registry until the date upon which the application for special leave to appeal to the High Court is either determined or withdrawn or not proceeded with or until further order. This outcome ensures that the respondent's right to a fair appeal is protected, while also maintaining public order and confidence in the criminal justice system.

Orders

Orders of the court

Paragraph 3 of the order of the Court of Appeal date 10 October 2002 in Appeal no 172 of 2002 be varied so that a bench warrant issue for the arrest of the respondent but lie in the Registry until the date upon which the application for special leave to appeal to the High Court is either determined or withdrawn or not proceeded with or until further order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v P; ex parte A-G (Qld) [2002] QCA 436
PARTIES:	R v P (respondent/applicant) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant/respondent)
FILE NO/S:	CA No 172 of 2002 DC 1206 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Criminal Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EXTEMPORE ON:	17 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	17 October 2002
JUDGES:	McPherson JA, Cullinane and Holmes JJ Separate reasons for judgment of each member of the court, each concurring as to the order made
ORDER:	Paragraph 3 of the order of the Court of Appeal date 10 October 2002 in Appeal no 172 of 2002 be varied so that a bench warrant issue for the arrest of the respondent but lie in the Registry until the date upon which the application for special leave to appeal to the High Court is either determined or withdrawn or not proceeded with or until further order.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – WARRANTS – FOR ARREST AND DETENTION – EXECUTION – application for stay of arrest warrant issued after sentence increased on Attorney-General’s appeal pending hearing by High Court – wether risk of serving sentence before appeal hear justifies stay of warrant
COUNSEL:	P S Hardcastle for the respondent/applicant M J Copley for the appellant/respondent
SOLICITORS:	Hemming & Hart for the respondent/applicant Director of Public Prosecutions (Queensland) for the appellant/respondent