R v. Petersen - [2008] QCA 405

SUPREME COURT OF QUEENSLAND

CITATION:

R v Petersen [2008] QCA 405

PARTIES:

R
v
PETERSEN, Gregory Stephen
(applicant)

FILE NO/S:

CA No 217 of 2008
SC No 4 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)
Miscellaneous Application – Criminal

ORIGINATING COURT:

Supreme Court at Bundaberg

DELIVERED ON:

12 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

1 December 2008

JUDGES:

de Jersey CJ, McMurdo P and White AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The application for leave to adduce evidence is refused.1.

The application for an extension of time to appeal against conviction and to apply for leave to appeal against sentence is refused.2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – applicant pleaded guilty to one count of producing a dangerous drug and one count of possession of a motorcycle used in the commission of a crime – applicant pleaded not guilty when first arraigned on 26 February 2008 – applicant assaulted Crown witness in adjournment – applicant's legal representatives withdrew as they were potential witnesses in assault case – applicant's new representatives granted adjournment until 3 March 2008 – applicant pleaded guilty when arraigned on 3 March 2008 – applicant filed notice of appeal more than four months out of time – applicant claimed he did not plead guilty – applicant claimed he was affected by pain, sleep deprivation and stress – applicant claimed he was denied right to representation – applicant said delay in appealing due to inability to contact legal representation and difficulty obtaining documents – whether an extension of time to appeal against conviction and for leave to appeal against sentence should be granted

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – TO CONSIDER FRESH EVIDENCE – applicant convicted of production of cannabis crop in forest area – applicant submitted affidavit material from family members and friends during hearing of appeal – affidavit material to the effect that those persons had not seen applicant involved with cannabis crop, except to purchase small quantities for pain relief – applicant implicated in production of crop by medication packet bearing his name found near crop, phone messages and map in his papers marking the spot of the crop – whether the applicant should be allowed to adduce further evidence

Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, cited
Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, cited
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, cited
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, cited
Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, cited
R v Allison (2003) 138 A Crim R 378; [2003] QCA 125, cited

R v Gudgeon

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. Petersen

Details

AGLC: R v Petersen [2008] QCA 405
Case: [2008] QCA 405
Decision Date: 12 December 2008

CaseChat Overview and Summary

In the case of R v. Petersen, the applicant sought an extension of time to appeal against his conviction and sentence. Petersen had originally pleaded not guilty but later changed his plea to guilty. The court was required to consider whether an extension of time to file the notice of appeal and the application for leave to appeal against sentence should be granted. Petersen argued that he did not plead guilty, that he was affected by pain, sleep deprivation, and stress, and that he was denied the right to representation. He also claimed there was a delay in appealing due to his inability to contact legal representation and difficulty obtaining documents.

The court examined the circumstances surrounding the late filing of the notice of appeal. It noted that Petersen had been arraignned twice, first on 26 February 2008 when he pleaded not guilty, and again on 3 March 2008 when he pleaded guilty. The notice of appeal was filed more than four months out of time. The court considered Petersen's claims of lack of representation, stress, and pain, but found that these did not sufficiently explain the significant delay in lodging the notice of appeal. The court also held that the inability to contact legal representation and difficulty in obtaining documents did not justify the late filing.

The court found that the application for an extension of time to appeal against the conviction and to apply for leave to appeal against the sentence should be refused. The court rejected the applicant's argument that he did not plead guilty and considered that the stress and pain he experienced did not constitute exceptional circumstances warranting an extension. The court held that the delay was not satisfactorily explained and that the applicant's claims did not meet the threshold for granting an extension of time. The application for leave to adduce further evidence during the appeal was also refused.

In summary, the court refused both the application for an extension of time to appeal and the application to adduce further evidence. The court found that the applicant's explanations for the delay and the circumstances surrounding the appeal did not justify an extension of time.

Orders

Orders of the court

The application for leave to adduce evidence is refused.1.

The application for an extension of time to appeal against conviction and to apply for leave to appeal against sentence is refused.2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Petersen [2008] QCA 405
PARTIES:	R v PETERSEN, Gregory Stephen (applicant)
FILE NO/S:	CA No 217 of 2008 SC No 4 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction) Miscellaneous Application – Criminal
ORIGINATING COURT:	Supreme Court at Bundaberg
DELIVERED ON:	12 December 2008
DELIVERED AT:	Brisbane
HEARING DATE:	1 December 2008
JUDGES:	de Jersey CJ, McMurdo P and White AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The application for leave to adduce evidence is refused.1. The application for an extension of time to appeal against conviction and to apply for leave to appeal against sentence is refused.2.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – applicant pleaded guilty to one count of producing a dangerous drug and one count of possession of a motorcycle used in the commission of a crime – applicant pleaded not guilty when first arraigned on 26 February 2008 – applicant assaulted Crown witness in adjournment – applicant's legal representatives withdrew as they were potential witnesses in assault case – applicant's new representatives granted adjournment until 3 March 2008 – applicant pleaded guilty when arraigned on 3 March 2008 – applicant filed notice of appeal more than four months out of time – applicant claimed he did not plead guilty – applicant claimed he was affected by pain, sleep deprivation and stress – applicant claimed he was denied right to representation – applicant said delay in appealing due to inability to contact legal representation and difficulty obtaining documents – whether an extension of time to appeal against conviction and for leave to appeal against sentence should be granted CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – TO CONSIDER FRESH EVIDENCE – applicant convicted of production of cannabis crop in forest area – applicant submitted affidavit material from family members and friends during hearing of appeal – affidavit material to the effect that those persons had not seen applicant involved with cannabis crop, except to purchase small quantities for pain relief – applicant implicated in production of crop by medication packet bearing his name found near crop, phone messages and map in his papers marking the spot of the crop – whether the applicant should be allowed to adduce further evidence Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, cited Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, cited Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, cited Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, cited Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, cited R v Allison (2003) 138 A Crim R 378; [2003] QCA 125, cited R v Gudgeon