R v Suey - [2009] QCA 261

SUPREME COURT OF QUEENSLAND

CITATION:

R v Suey [2009] QCA 261

PARTIES:

R
v
SUEY, William John
(applicant)

FILE NO/S:

CA No 102 of 2009
DC No 1161 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)
Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

27 August 2009

JUDGES:

Keane and Chesterman JJA and P Lyons 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 against conviction and sentence is refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant has applied for an extension of time in which to appeal against his conviction – where the applicant submits the conviction is unsafe and unsatisfactory – whether the learned trial judge’s summing-up caused the trial to miscarry – whether the outcome of the trial was irrational

CRIMINAL LAW – SENTENCE – APPEAL AND NEW TRIAL – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant has applied for leave to appeal against his sentence – where the applicant claims his sentence was manifestly excessive in all the circumstances – where there was delay in bringing the application to appeal against sentence – where the applicant submits he was unwell at the time of his apprehension and was thereby delayed – whether the submission is without substance – whether the refusal of the extension would result in a miscarriage of justice – where the application for an extension of time within which to appeal against conviction is refused

CRIMINAL LAW – APPEAL AND NEW TRIAL –PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – ADJOURNMENT – GROUNDS FOR GRANTING OR REFUSING – OTHER MATTERS – where the applicant sought an adjournment of his appeal – where the adjournment was refused on the basis that an adjournment would not improve the applicant’s ability to make submissions

Criminal Code 1899 (Qld), s 568

R v Haddad [2001] QCA 171, considered
R v Herricane [1997] QCA 426, considered

R v Williams [2001] 2 Qd R 442; [2000] QCA 409, considered

COUNSEL:

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

SOLICITORS:

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

KEANE JA: I have had the advantage of reading in draft the reasons for judgment prepared by P Lyons J. I agree with those reasons and with the order proposed by his Honour.

CHESTERMAN JA: I agree that the application for an extension of time within which to appeal against conviction and the application for leave to appeal against sentence should be dismissed for the reasons given by P Lyons J.

P LYONS J: On some 16 occasions over 2004 and 2005, houses…

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 Suey

Details

AGLC: R v Suey [2009] QCA 261
Case: [2009] QCA 261
Decision Date: 4 September 2009

CaseChat Overview and Summary

In the matter of R v Suey, the applicant, Suey, sought an extension of time to appeal against both his conviction and sentence. The trial court had found Suey guilty of several criminal offences and sentenced him to imprisonment. Dissatisfied with the outcome, Suey applied for an extension of time to appeal, claiming that the trial judge's summing-up caused the trial to miscarry and that his sentence was manifestly excessive. The application for leave to appeal was accompanied by a request for an adjournment of the hearing of the application.

The primary legal issues before the court were whether the trial judge's summing-up had caused the trial to miscarry, rendering the conviction unsafe and unsatisfactory, and whether the sentence was manifestly excessive. Additionally, the court had to determine whether the delay in Suey's application for leave to appeal against sentence, which he attributed to his unsound health at the time of his apprehension, warranted an extension of time. The court also needed to assess whether the refusal of the extension would result in a miscarriage of justice.

The court dismissed the application for an extension of time within which to appeal against both conviction and sentence. The court found that the trial judge's summing-up did not cause the trial to miscarry, and thus the conviction was safe and satisfactory. Regarding the sentence, the court held that it was not manifestly excessive. The court also found that Suey's submission of being unwell at the time of apprehension was without substance and did not warrant an extension of time. The court concluded that an adjournment of the hearing of the application would not improve Suey's ability to make submissions and denied the application for an adjournment.

The court refused the application for an extension of time within which to appeal against conviction and sentence.

Orders

Orders of the court

The application for an extension of time within which to appeal against conviction and sentence is 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 Suey [2009] QCA 261
PARTIES:	R v SUEY, William John (applicant)
FILE NO/S:	CA No 102 of 2009 DC No 1161 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction) Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	4 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	27 August 2009
JUDGES:	Keane and Chesterman JJA and P Lyons 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 against conviction and sentence is refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant has applied for an extension of time in which to appeal against his conviction – where the applicant submits the conviction is unsafe and unsatisfactory – whether the learned trial judge’s summing-up caused the trial to miscarry – whether the outcome of the trial was irrational CRIMINAL LAW – SENTENCE – APPEAL AND NEW TRIAL – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant has applied for leave to appeal against his sentence – where the applicant claims his sentence was manifestly excessive in all the circumstances – where there was delay in bringing the application to appeal against sentence – where the applicant submits he was unwell at the time of his apprehension and was thereby delayed – whether the submission is without substance – whether the refusal of the extension would result in a miscarriage of justice – where the application for an extension of time within which to appeal against conviction is refused CRIMINAL LAW – APPEAL AND NEW TRIAL –PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – ADJOURNMENT – GROUNDS FOR GRANTING OR REFUSING – OTHER MATTERS – where the applicant sought an adjournment of his appeal – where the adjournment was refused on the basis that an adjournment would not improve the applicant’s ability to make submissions Criminal Code 1899 (Qld), s 568 R v Haddad [2001] QCA 171, considered R v Herricane [1997] QCA 426, considered R v Williams [2001] 2 Qd R 442; [2000] QCA 409, considered
COUNSEL:	The applicant appeared on his own behalf M Copley SC for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent