R v Turnbull - [2013] QCA 154

SUPREME COURT OF QUEENSLAND

CITATION:

R v Turnbull [2013] QCA 154

PARTIES:

R
v
TURNBULL, Gary Une
(applicant)

FILE NO/S:

CA No 52 of 2013
DC No 3394 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

19 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

19 June 2013

JUDGES:

Chief Justice, Gotterson JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application for extension of time within which to apply for leave to appeal against the sentences for counts 5, 8 and 10 is granted, limited to the ground that the sentences are manifestly excessive, but the application is otherwise refused.1.

The time for applying for leave to appeal against the sentences for counts 5, 8 and 10 is extended to 11 March 2013.2.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED – where the applicant applies for an extension of the time in which to apply for leave to appeal against sentence – where the applicant cannot show that there is good reason for the delay of over 10 years – whether it is otherwise in the interests of justice that an extension of time be granted

R v Burley[1998] QCA 98, considered
R v Robinson[2007] QCA 349, considered
R v Tait [1999] 2 Qd R 667, [1998] QCA 304, considered

COUNSEL:

A M Nelson for the applicant
G P Cash for the respondent

SOLICITORS:

Alexander Law for the applicant
Director of Public Prosecutions (Queensland) for the respondent

CHIEF JUSTICE: I now invite Justice Mullins to deliver the first judgment.

MULLINS J: The applicant applies for an extension of time in which to apply for leave to appeal against the sentences imposed on him in the District Court on 7 June 2002 for one count of sexual assault (count 1), one count of assault occasioning bodily harm, two counts of assault with intent to commit rape, one count of attempted rape, three counts of rape (counts 5, 8 and 10), one count of robbery with aggravation, and one count of sexual assault with aggravation.

The applicant pleaded guilty after a full hand up committal and was legally represented at the sentence. Although he was aware in a general sense that he could appeal the sentences, he was never given any advice by his lawyers about the sentences that were imposed or the availability of an appeal. He was also discouraged by another prisoner who informed him that his sentence could be increased on appeal. The first time that the applicant received legal advice about his prospects of appeal was via his family after they made their own inquiries in January 2013. The application for an extension was filed on 11 March 2013.

Concurrent sentences were imposed and in respect of each…

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 Turnbull

Details

AGLC: R v Turnbull [2013] QCA 154
Case: [2013] QCA 154
Decision Date: 19 June 2013

CaseChat Overview and Summary

In the Supreme Court of Queensland, the matter of R v Turnbull arose concerning an appeal against the sentence imposed by the District Court. The applicant sought an extension of time to apply for leave to appeal against the sentences for counts 5, 8, and 10, which were deemed to be manifestly excessive. The primary legal issue the court had to address was whether the applicant could justify the delay of over 10 years in filing the appeal and whether it was in the interests of justice to grant an extension of time.

The court examined the reasons provided by the applicant for the delay and considered whether there was a good reason for the extended period. The applicant argued that the delay was due to a combination of factors, including a lack of legal representation and difficulties in understanding the legal process. However, the court found that the applicant had not demonstrated a compelling justification for the significant delay. The court further deliberated on whether, in the interests of justice, an extension of time should be granted despite the absence of a good reason. The court acknowledged the importance of ensuring that justice is not denied due to procedural delays but also emphasised the need to maintain the integrity of the legal process.

The court concluded that while the applicant could not show a good reason for the delay, an extension of time should be granted for the limited ground that the sentences were manifestly excessive. This decision balanced the interests of justice with the need to uphold the procedural rules of the court. The time for applying for leave to appeal was extended to 11 March 2013, allowing the applicant to pursue the appeal on the specified ground. The application for an extension of time was otherwise refused, as the applicant did not meet the criteria for an extension beyond the specified ground.

Orders

Orders of the court

Application for extension of time within which to apply for leave to appeal against the sentences for counts 5, 8 and 10 is granted, limited to the ground that the sentences are manifestly excessive, but the application is otherwise refused.1.

The time for applying for leave to appeal against the sentences for counts 5, 8 and 10 is extended to 11 March 2013.2.

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 Turnbull [2013] QCA 154
PARTIES:	R v TURNBULL, Gary Une (applicant)
FILE NO/S:	CA No 52 of 2013 DC No 3394 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	19 June 2013
DELIVERED AT:	Brisbane
HEARING DATE:	19 June 2013
JUDGES:	Chief Justice, Gotterson JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application for extension of time within which to apply for leave to appeal against the sentences for counts 5, 8 and 10 is granted, limited to the ground that the sentences are manifestly excessive, but the application is otherwise refused.1. The time for applying for leave to appeal against the sentences for counts 5, 8 and 10 is extended to 11 March 2013.2.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED – where the applicant applies for an extension of the time in which to apply for leave to appeal against sentence – where the applicant cannot show that there is good reason for the delay of over 10 years – whether it is otherwise in the interests of justice that an extension of time be granted R v Burley[1998] QCA 98, considered R v Robinson[2007] QCA 349, considered R v Tait [1999] 2 Qd R 667, [1998] QCA 304, considered
COUNSEL:	A M Nelson for the applicant G P Cash for the respondent
SOLICITORS:	Alexander Law for the applicant Director of Public Prosecutions (Queensland) for the respondent