R v Phillips - [2017] QCA 88

SUPREME COURT OF QUEENSLAND

CITATION:

R v Phillips [2017] QCA 88

PARTIES:

R
v
PHILLIPS, Douglas Allan
(applicant)

FILE NO/S:

CA No 287 of 2016
SC No 259 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 12 September 2016

DELIVERED ON:

12 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2017

JUDGES:

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

ORDER:

The application for an extension of time within which to appeal the conviction be granted.

CATCHWORDS:

APPEAL AND NEW TRIAL – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED – where on the 12 September 2016 the applicant and his three co-offenders were found not guilty of murder but guilty of manslaughter – where the applicant was convicted and sentenced to 12 years and six months imprisonment – where the sentence necessitated the declaration of a serious violent offence – where the applicant ultimately wishes to appeal against conviction – where the Crown opposes an extension of time within which to appeal on the basis that such an appeal does not have any prospects of success – where it is necessary for the applicant to show good reason for the delay in filing the Notice of Appeal and that it is in the interests of justice to grant the appeal – where the applicant did not have access to legal representation during the period when a Notice of Appeal should have been lodged – where it is necessary to undertake a provisional assessment of the strength of the applicant’s case in determining whether a granting of an extension of time would be in the interests of justice – where the Court does not have access to the evidence led at trial – where the applicant is facing a very substantial period of imprisonment – whether it is in the interests of justice to grant the extension sought

Criminal Code (Qld), s 7, s 8

R v Amundsen[2016] QCA 177, applied
R v SCH[2015] QCA 38, applied
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied

COUNSEL:

The applicant appeared on his own behalf
V A Loury QC for the respondent

SOLICITORS:

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

PHILIPPIDES JA: I agree for the reasons given by Boddice J that the application for an extension of time within which to appeal against the applicant’s conviction should be granted.
McMURDO JA: I agree with Boddice J.
BODDICE J: On 12 September 2016, a jury found the applicant and his three co-accused not guilty of murder but guilty of manslaughter. The applicant was sentenced to 12 years and six months imprisonment with the consequence there was an automatic declaration of a serious violent offence.
By application filed 19 October…

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 Phillips

Details

AGLC: R v Phillips [2017] QCA 88
Case: [2017] QCA 88
Decision Date: 12 May 2017

CaseChat Overview and Summary

The case of R v Phillips involved an appeal against a conviction for manslaughter, with the applicant seeking an extension of time to appeal. The applicant and his co-offenders were found guilty of manslaughter after a trial in the Supreme Court of Queensland. The applicant was sentenced to 12 years and six months imprisonment, with the declaration of a serious violent offence. The Crown opposed the extension of time, arguing that the appeal did not have any prospects of success and that the applicant had not demonstrated good reason for the delay in filing the Notice of Appeal. The applicant argued that he did not have access to legal representation during the period when a Notice of Appeal should have been lodged, and that it was necessary to undertake a provisional assessment of the strength of his case in determining whether a granting of an extension of time would be in the interests of justice.

The court considered the relevant principles for granting an extension of time within which to appeal a conviction. The court noted that the applicant must show good reason for the delay in filing a Notice of Appeal within time and that it is in the interests of justice to grant the extension. The court also noted that a consideration of the second aspect may necessitate a provisional assessment of the strength of the proposed appeal, the prejudice to the respondent and the length of the delay. The court noted that it did not have access to the evidence led at trial, but that the applicant was facing a very substantial period of imprisonment.

The court found that the applicant had shown good reason for the delay in filing a Notice of Appeal within time, as he did not have access to legal representation during the period when a Notice of Appeal should have been lodged. The court also found that it was in the interests of justice to grant the extension, as the applicant was facing a very substantial period of imprisonment and there was no significant prejudice to the Crown. The court noted that a provisional assessment of the strength of the applicant’s case indicated that the appeal may have some prospect of success. The court granted the application for an extension of time within which to appeal the conviction.

The court ordered that the application for an extension of time within which to appeal the conviction be granted.

Orders

Orders of the court

The application for an extension of time within which to appeal the conviction be granted.

Background

Background to the litigation

The application for an extension of time within which to appeal against conviction was opposed by the Crown on the basis that any appeal against conviction did not have any prospects of success. The applicant’s sole proposed ground of appeal against conviction that the verdict of the jury was unreasonable or cannot be supported having regard to the evidence, contains no particularisation of the basis upon which it was asserted the verdict was unreasonable or against the weight of the evidence.Background On Christmas Day 2012, the deceased, Robert Jordan, was at his residence with other members of his family. Whilst there, he was approached by the applicant and the applicant’s brother. They asked the deceased to come outside. The deceased did so and was confronted by two further males in the driveway of his home. Whilst on the driveway, the deceased was viciously assaulted by the four males. He was knocked to the ground and punched and kicked repeatedly. One or more of the males stomped on the deceased repeatedly. Ultimately, the attack ceased and the four males decamped from the scene. The deceased was rendered assistance but died of the injuries sustained in the attack. Those injuries were substantial, including multiple injuries to the head, neck and upper body. On 27 March 2015, an indictment was presented in this Court charging the applicant and three co-offenders with the murder of the deceased. Their trial proceeded before a jury, commencing on 18 April 2016. Each pleaded not guilty to the murder of the deceased. After a trial lasting 11 days, the jury found each defendant not guilty of murder but guilty of manslaughter.Trial The Crown case at trial was that the deceased was sought out by the applicant and his co-offenders in a revenge attack. The basis for the charge of murder was that each had attended the deceased’s residence with the intention of assaulting the deceased. Two bases for murder were relied upon by the Crown. First, s 7 of the Criminal Code. The Crown contended that each offender aided or encouraged the other in the intentional assault of the deceased, knowing there was an intention to at least cause the deceased grievous bodily harm. Second, s 8 of the Criminal Code. The Crown contended that each offender had attended the deceased’s residence with the common purpose of assaulting the deceased and that a probable consequence of that common purpose was that one of the persons assaulting him would do so intending to kill the deceased or at least to do him grievous bodily harm. At issue at trial was whether the deceased’s death was a foreseeable consequence of the actions of the defendant and his co-offenders, whether the applicant aided or encouraged another who had the requisite intention and whether it was a probable consequence of the unlawful common purpose that the deceased would be assaulted by a person with the requisite intention.Discussion In order to obtain an extension of time within which to appeal the conviction, it is necessary for the applicant to show good reason for the delay in filing a Notice of Appeal within time and that it is in the interests of justice to grant the extension. A consideration of the second aspect may necessitate a provisional assessment of the strength of the proposed appeal, the prejudice to the respondent and the length of the delay.[1][1]R v Amundsen [2016] QCA 177 at [7]; R v Tait [1999] 2 Qd R 667 at [5].

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 Phillips [2017] QCA 88
PARTIES:	R v PHILLIPS, Douglas Allan (applicant)
FILE NO/S:	CA No 287 of 2016 SC No 259 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 12 September 2016
DELIVERED ON:	12 May 2017
DELIVERED AT:	Brisbane
HEARING DATE:	6 March 2017
JUDGES:	Philippides and McMurdo JJA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for an extension of time within which to appeal the conviction be granted.
CATCHWORDS:	APPEAL AND NEW TRIAL – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED – where on the 12 September 2016 the applicant and his three co-offenders were found not guilty of murder but guilty of manslaughter – where the applicant was convicted and sentenced to 12 years and six months imprisonment – where the sentence necessitated the declaration of a serious violent offence – where the applicant ultimately wishes to appeal against conviction – where the Crown opposes an extension of time within which to appeal on the basis that such an appeal does not have any prospects of success – where it is necessary for the applicant to show good reason for the delay in filing the Notice of Appeal and that it is in the interests of justice to grant the appeal – where the applicant did not have access to legal representation during the period when a Notice of Appeal should have been lodged – where it is necessary to undertake a provisional assessment of the strength of the applicant’s case in determining whether a granting of an extension of time would be in the interests of justice – where the Court does not have access to the evidence led at trial – where the applicant is facing a very substantial period of imprisonment – whether it is in the interests of justice to grant the extension sought Criminal Code (Qld), s 7, s 8 R v Amundsen[2016] QCA 177, applied R v SCH[2015] QCA 38, applied R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied
COUNSEL:	The applicant appeared on his own behalf V A Loury QC for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent