R v Spoehr - [2008] QCA 37

SUPREME COURT OF QUEENSLAND

CITATION:

R v Spoehr [2008] QCA 37

PARTIES:

R
v
SPOEHR, Kym
(applicant)

FILE NO/S:

CA No 209 of 2007
DC No 43 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED EX TEMPORE ON:

15 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2008

JUDGES:

Keane and Fraser JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for extension of time refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – QUEENSLAND – PROCEDURE – EXTENSION OF TIME – where the applicant was convicted on his own plea of guilty – where an application to appeal against sentence has already been heard and determined by the Court of Appeal on an earlier occasion – whether there are sufficient grounds to warrant the grant of an extension of time to appeal

Elliot v The Queen (2007) 239 ALR 651; [2007] HCA 51, applied
Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, applied
Jeffers v R (1993) 112 ALR 85; [1993] HCA 11, applied
R v Senior[2005] QCA 21; CA No 399 of 2005, 11 February 2005, applied
R v Spoehr [2003] QCA 412; CA No 210 of 2003, 16 September 2003, cited
R v Tait [1999] 2 Qd R 677; [1998] QCA 304, distinguished

COUNSEL:

The applicant appeared on his own behalf
M J Copley for the respondent

SOLICITORS:

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

KEANE JA: On the 26th of May 2003 the applicant was convicted on his own plea of a number of offences, the most serious of which was seven counts of rape. He also pleaded guilty to one count of sexual assault, one count of deprivation of liberty and one count of assault with intent to rape. These offences were committed in December 2001 when the applicant attacked a female tourist in bushland, detaining her for an afternoon and a night by tying her up and raping her seven times during that time. The detail of the applicant's crimes is set out in reasons of President McMurdo, with whom Justices Davies and Jerrard agreed in the R v Spoehr [2003] QCA 412.

The applicant was sentenced to an effective term of 14 years imprisonment. He applied to appeal against this sentence. The application was refused by this Court on 16 September 2003. It may be noted that the applicant did not seek to appeal against his conviction, which was not called into question until the present application, which was filed four years after the application for leave to appeal against sentence was refused.

On 29 August 2007 the applicant filed a notice of appeal challenging both his convictions…

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 Spoehr

Details

AGLC: R v Spoehr [2008] QCA 37
Case: [2008] QCA 37
Decision Date: 15 February 2008

CaseChat Overview and Summary

The case of R v Spoehr involved the applicant, who was convicted on his own plea of guilty. He sought an extension of time to appeal against his conviction, a matter that had already been addressed and decided by the Court of Appeal previously. The application was heard in the relevant Australian court, which was tasked with determining whether there were sufficient grounds to warrant the grant of an extension of time to appeal.

The legal issues before the court centred on the criteria for granting an extension of time to appeal against conviction in a case where an earlier appeal against sentence had been heard and determined. The court had to consider the statutory provisions governing the extension of time for such appeals, as well as the principles of law and justice that guide the exercise of discretion in such matters. Specifically, the court needed to assess whether the applicant had demonstrated exceptional circumstances that warranted an extension of time.

In delivering its decision, the court carefully examined the statutory framework and the relevant legal authorities. The court found that while the applicant had raised points of law that were arguably of some merit, they did not reach the threshold of being exceptional circumstances that would warrant an extension of time. The court also considered the applicant's previous opportunities to appeal and his decision not to do so at the appropriate time. Ultimately, the court concluded that there were insufficient grounds to grant the extension of time sought by the applicant.

Accordingly, the court refused the application for an extension of time. The applicant was not granted permission to appeal against his conviction. This decision reinforces the importance of timely appeals and the stringent criteria that must be met to secure an extension of time in such matters.

Orders

Orders of the court

Application for extension of time refused.

Background

Background to the litigation

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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 Spoehr [2008] QCA 37
PARTIES:	R v SPOEHR, Kym (applicant)
FILE NO/S:	CA No 209 of 2007 DC No 43 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED EX TEMPORE ON:	15 February 2008
DELIVERED AT:	Brisbane
HEARING DATE:	15 February 2008
JUDGES:	Keane and Fraser JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – QUEENSLAND – PROCEDURE – EXTENSION OF TIME – where the applicant was convicted on his own plea of guilty – where an application to appeal against sentence has already been heard and determined by the Court of Appeal on an earlier occasion – whether there are sufficient grounds to warrant the grant of an extension of time to appeal Elliot v The Queen (2007) 239 ALR 651; [2007] HCA 51, applied Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, applied Jeffers v R (1993) 112 ALR 85; [1993] HCA 11, applied R v Senior[2005] QCA 21; CA No 399 of 2005, 11 February 2005, applied R v Spoehr [2003] QCA 412; CA No 210 of 2003, 16 September 2003, cited R v Tait [1999] 2 Qd R 677; [1998] QCA 304, distinguished
COUNSEL:	The applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent