R v Pearce - [2011] QCA 290

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pearce [2011] QCA 290

PARTIES:

R
v
PEARCE, Peter John
(applicant)

FILE NO/S:

CA No 220 of 2011
DC No 26 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

18 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

6 October 2011

JUDGES:

Fraser JA and White JJA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for extension of time to appeal against conviction is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPLICATION FOR EXTENSION OF TIME AND LEAVE TO APPEAL AGAINST CONVICTION – where applicant convicted on one count of dangerous operation of a motor vehicle – where appeal against conviction previously abandoned – whether it is in the interest of justice to set aside the abandonment and reinstate the appeal

Criminal Practice Rules 1999 (Qld), r 70

Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, cited
R v Basacar[2008] QCA 285, considered
R v DAQ[2008] QCA 75, applied
R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, considered

COUNSEL:

The applicant appeared on his own behalf
D A Holliday for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of McMeekin J and the order proposed by his Honour.

WHITE JA: I have read the reasons for judgment of McMeekin J and agree with those reasons and the order proposed by his Honour.

McMEEKIN J: The applicant seeks an extension of time in which to appeal his conviction on 7 July 2010 on a count of dangerous operation of a motor vehicle. He was tried before Judge Dodds and a jury. He was sentenced to 18 months imprisonment with a parole release date set at 7 April 2011.

On 29 July 2010 the applicant filed an application for leave to appeal against his conviction and sentence. On 29 October 2010 the applicant filed a Notice of Abandonment of the appeal against conviction.

This Court dismissed the application for leave to appeal against sentence on 7 December 2010. The applicant was then legally represented.

On 5 August 2011 the applicant filed this application.

Relevant Principles

In circumstances where there has been an abandonment of a previously filed Notice of Appeal the application necessarily has to be considered by reference to the considerations relevant to an application to set aside the abandonment and reinstate the appeal: R v Basacar [2008] QCA 285.

An application to revive an abandoned appeal is governed by r 70 of the Criminal Practice Rules 1999 which provides:

"70 Abandoning appeal

(1) An appellant, at any time after starting an appeal, may abandon it by giving to the registrar a notice of abandonment of appeal.

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 Pearce

Details

AGLC: R v Pearce [2011] QCA 290
Case: [2011] QCA 290
Decision Date: 18 October 2011

CaseChat Overview and Summary

The case of R v Pearce involves the applicant, who was convicted on one count of dangerous operation of a motor vehicle. The applicant sought to extend the time to appeal against the conviction, as the initial appeal was previously abandoned. The matter was heard in the relevant appellate court, which was required to decide whether it was in the interest of justice to set aside the abandonment of the appeal and reinstate it.

The primary legal issue the court had to address was whether it was in the interest of justice to allow the applicant to extend the time to appeal against the conviction, given that the original appeal had been abandoned. This required a careful consideration of the principles governing appeals against conviction, the circumstances leading to the abandonment of the appeal, and whether the applicant had a valid reason for the delay in seeking to reinstate the appeal.

The court considered the circumstances leading to the abandonment of the initial appeal and the reasons provided by the applicant for the delay in seeking to extend the time to appeal. The court also weighed the public interest in finality of convictions against the applicant's right to appeal. Ultimately, the court concluded that it was not in the interest of justice to set aside the abandonment of the appeal and reinstate it. The court found that the applicant had not provided a sufficient justification for the delay in seeking to extend the time to appeal, and that the public interest in finality of convictions outweighed the applicant's right to appeal.

In light of the above, the application for extension of time to appeal against conviction was refused. The court did not consider it appropriate to set aside the abandonment of the appeal and reinstate it, given the circumstances of the case.

Orders

Orders of the court

The application for extension of time to appeal against conviction is refused.

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

Full text does not contain this section.

CITATION:	R v Pearce [2011] QCA 290
PARTIES:	R v PEARCE, Peter John (applicant)
FILE NO/S:	CA No 220 of 2011 DC No 26 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	18 October 2011
DELIVERED AT:	Brisbane
HEARING DATE:	6 October 2011
JUDGES:	Fraser JA and White JJA and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for extension of time to appeal against conviction is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPLICATION FOR EXTENSION OF TIME AND LEAVE TO APPEAL AGAINST CONVICTION – where applicant convicted on one count of dangerous operation of a motor vehicle – where appeal against conviction previously abandoned – whether it is in the interest of justice to set aside the abandonment and reinstate the appeal Criminal Practice Rules 1999 (Qld), r 70 Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, cited R v Basacar[2008] QCA 285, considered R v DAQ[2008] QCA 75, applied R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, considered
COUNSEL:	The applicant appeared on his own behalf D A Holliday for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent