Separate Reasons for Judgment of the President and Pincus J.A. concurring as to the
orders to be made. Dissenting Reasons for Judgment of Mackenzie J.

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APPLICATION GRANTED, APPEAL ALLOWED.
ORDERS AS FOLLOWS:

1.         ORDER OF THIS COURT [DELIVERED ON 4 OCTOBER 1995] IN APPEAL NO. 364/95 REFUSING AN APPLICATION FOR LEAVE TO APPEAL SET ASIDE.
2.         APPLICATION FOR LEAVE TO APPEAL AGAINST THE SENTENCE IMPOSED BY MR JUSTICE DERRINGTON ON 7 AUGUST 1995 GRANTED.
3.         APPEAL ALLOWED TO THE EXTENT OF RECOMMENDING THAT THE APPELLANT BE ELIGIBLE FOR RELEASE ON PAROLE ON 1 MARCH 1998.
4.         FURTHER ORDER THAT THE SENTENCE OF 18 MONTHS IMPOSED BY MR JUSTICE DERRINGTON ON THE APPELLANT ON 7 AUGUST 1995 BE MADE CUMULATIVE UPON ALL THE SENTENCES IMPOSED IN THE DISTRICT COURT ON 10 MARCH 1995, RESULTING IN TOTAL SENTENCES OF 8 YEARS.

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CATCHWORDS: SENTENCE - construction of sentences - application to

reopen matter previously determined - mistake as to effect of previous orders - injustice to applicant - jurisdiction to reopen proceedings - jurisdiction - inherent power - jurisdiction to correct error - s. 8, Supreme Court of Queensland Act 1991 - period in custody not taken account of.

Counsel:	Mrs L Clare for the respondent. Mr Hamlyn-Harris for the applicant.
Solicitors:	Queensland Director of Public Prosecutions for the respondent. Legal Aid Office for the applicant.
Hearing date:	01/02/1996

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 19/07/1996

The circumstances giving rise to this proceeding are set out in the reasons for judgment of the other members of the Court.

The applicant sought an extension of time to apply for leave to appeal against sentences imposed on him in the District Court and in the Trial Division, leave to appeal, and that the appeals be allowed. The applications in respect of the sentences imposed in the District Court were not pressed and were refused at the hearing in this Court on 1 February 1996. Since leave to appeal from the sentences imposed in the Trial Division has been refused by this Court on a prior occasion and the order refusing leave has been entered,[1] there is a threshold question whether there is power to grant the orders which are still sought. The Court of Criminal Appeal has previously held that there is no power to extend the time to appeal against conviction after an earlier appeal against conviction has been dismissed, and that the correct procedure is an application under s. 672A of the Criminal Code: Smith [1968] Q.W.N. 50; Smith [No. 2] [1969] Q.W.N. 10; see also R. v. Shannon (1982) 32 S.A.S.R. 5, 8; Mickelberg v. R. (1989) 167 C.L.R. 259, 287. In the judgment of Lucas J. in…

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 Pettigrew

Details

AGLC: R v Pettigrew [1996] QCA 235
Case: [1996] QCA 235
Decision Date: 19/07/1996

CaseChat Overview and Summary

The applicant sought an extension of time to apply for leave to appeal against sentences imposed on him in the District Court and in the Trial Division, leave to appeal, and that the appeals be allowed. The applicant effectively sought to set aside the Court of Appeal's previous decision, which was refused. The Court had jurisdiction to set aside the previous decision, as the order was based upon a factual misapprehension, shared by the parties and the Court, derived from ambiguity in the order of a lower Court. The Court considered the merits of the application and agreed with the reasons for judgment of Pincus J.A. and allowed the appeal. The orders were as follows: 1. Order of this Court [delivered on 4 October 1995] in Appeal No. 364/95 refusing an application for leave to appeal set aside. 2. Application for leave to appeal against the sentence imposed by Mr Justice Derrington on 7 August 1995 granted. 3. Appeal allowed to the extent of recommending that the appellant be eligible for release on parole on 1 March 1998. 4. Further order that the sentence of 18 months imposed by Mr Justice Derrington on the appellant on 7 August 1995 be made cumulative upon all the sentences imposed in the District Court on 10 March 1995, resulting in total sentences of 8 years.

In conclusion, the Court allowed the appeal and made orders for the applicant to be eligible for release on parole on 1 March 1998 and for the sentence imposed by Mr Justice Derrington on 7 August 1995 to be made cumulative upon all the sentences imposed in the District Court on 10 March 1995, resulting in total sentences of 8 years.

Orders