R v Stuart - [2005] QCA 215

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stuart [2005] QCA 215

PARTIES:

R
v
STUART, Craig Edward
(applicant)

FILE NO/S:

CA No 424 of 2004
DC No 1882 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application - Criminal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

17 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

17 June 2005

JUDGES:

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

ORDER:

A warrant for the apprehension of the applicant made on 3 May 2005 lie on the file until the determination of the applicant's application for special leave to appeal to the High Court of Australia, or until that application is abandoned, or until further order

CATCHWORDS:

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - WARRANTS FOR ARREST AND DETENTION - EXECUTION - where applicant convicted after trial of assault occasioning grievous bodily harm - where applicant sentenced to three months imprisonment - where applicant's appeal against conviction to the Court of Appeal dismissed - where applicant lodged application for special leave to appeal to the High Court - whether warrant for arrest of applicant should be ordered to lie on the file until the outcome of the application for special leave is known

Marotta v The Queen (1999) 73 ALJR 265, cited

R v P; ex parte Attorney-General [2002] QCA 436; CA No 172 of 2002, 17 October 2002, followed

COUNSEL:

A J Glynn SC for applicant
M J Copley for respondent

SOLICITORS:

Welldon Zande & Reddy (Petrie) for applicant
Director of Public Prosecutions (Queensland) for respondent

KEANE JA: On 13 December 2004, the applicant was convicted after a trial of assault occasioning grievous bodily harm. He was sentenced to three months imprisonment with twelve months probation thereafter.

He appealed to this Court on the ground that the learned trial Judge had misdirected the jury in relation to the operation of Section 23 of the Criminal Code. That appeal was dismissed on 3 May 2005. The applicant had then served ten days of his sentence prior to the grant of bail to him pending the hearing of his appeal.

Upon the dismissal of his appeal, an order was made for an issue of a warrant for his apprehension, but it was further ordered that the warrant remain on the court file for a period of two days. On 5 May 2005, the Court ordered that the warrant remain on the Court file until 24 June 2005 or further order in anticipation of an application for special leave to appeal to the High Court on the dismissal of the applicant's appeal to this Court.

On 30 May 2005, the applicant filed an application for special leave to appeal to the High Court. It appears that the application for special leave may be heard in September 2005 at the earliest.
The applicant now seeks…

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 Stuart

Details

AGLC: R v Stuart [2005] QCA 215
Case: [2005] QCA 215
Decision Date: 17 June 2005

CaseChat Overview and Summary

The applicant, who was convicted of assault occasioning grievous bodily harm, sought to have a warrant for his arrest and detention placed on the file pending the outcome of his application for special leave to appeal to the High Court. The case was heard by a court in Queensland, which had jurisdiction over the matter as it pertained to criminal law and procedure. The primary issue before the court was whether it was appropriate to suspend the execution of the arrest warrant while the applicant pursued his application for special leave to appeal to the High Court.

The court considered the principle established in Marotta v The Queen, where the High Court held that a warrant for arrest should not be executed while an application for special leave to appeal is pending. The court also referred to R v P; ex parte Attorney-General, where a similar issue was addressed, and it was decided that the execution of the warrant should be deferred until the special leave application was resolved. The court was required to balance the interests of the applicant, who was seeking to avoid immediate incarceration, against the need to enforce the sentence imposed by the lower court.

In light of the legal principles established in Marotta v The Queen and R v P; ex parte Attorney-General, the court determined that the warrant for the apprehension of the applicant should indeed lie on the file until the outcome of the application for special leave to appeal to the High Court is known, or until the application is abandoned. This decision ensures that the applicant's right to appeal is not prejudiced by immediate enforcement of the sentence. The court's order reflects a cautious approach, respecting the applicant's procedural rights while acknowledging the need for the legal system to maintain its authority.

The court ordered that the warrant for the apprehension of the applicant made on 3 May 2005 lie on the file until the determination of the applicant's application for special leave to appeal to the High Court of Australia, or until that application is abandoned, or until further order. This order ensures that the applicant's right to appeal is preserved and that the execution of the warrant is deferred pending the resolution of the special leave application.

Orders

Orders of the court

A warrant for the apprehension of the applicant made on 3 May 2005 lie on the file until the determination of the applicant's application for special leave to appeal to the High Court of Australia, or until that application is abandoned, or until further order

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Stuart [2005] QCA 215
PARTIES:	R v STUART, Craig Edward (applicant)
FILE NO/S:	CA No 424 of 2004 DC No 1882 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application - Criminal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	17 June 2005
DELIVERED AT:	Brisbane
HEARING DATE:	17 June 2005
JUDGES:	McPherson and Keane JJA and White J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	A warrant for the apprehension of the applicant made on 3 May 2005 lie on the file until the determination of the applicant's application for special leave to appeal to the High Court of Australia, or until that application is abandoned, or until further order
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - WARRANTS FOR ARREST AND DETENTION - EXECUTION - where applicant convicted after trial of assault occasioning grievous bodily harm - where applicant sentenced to three months imprisonment - where applicant's appeal against conviction to the Court of Appeal dismissed - where applicant lodged application for special leave to appeal to the High Court - whether warrant for arrest of applicant should be ordered to lie on the file until the outcome of the application for special leave is known Marotta v The Queen (1999) 73 ALJR 265, cited R v P; ex parte Attorney-General [2002] QCA 436; CA No 172 of 2002, 17 October 2002, followed
COUNSEL:	A J Glynn SC for applicant M J Copley for respondent
SOLICITORS:	Welldon Zande & Reddy (Petrie) for applicant Director of Public Prosecutions (Queensland) for respondent