R v Upson - [2013] QCA 76

SUPREME COURT OF QUEENSLAND

CITATION:

R v Upson [2013] QCA 76

PARTIES:

R
v
UPSON, Robert James
(applicant)

FILE NO/S:

CA No 9 of 2013
SC No 457 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

Supreme Court

DELIVERED EX TEMPORE ON:

9 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

9 April 2013

JUDGE:

Holmes and Fraser JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The application for an extension of time to appeal against conviction is refused.1.

The court will reserve its decision on the application for an extension of time to seek leave to appeal against sentence.2.

CATCHWORDS:

APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the applicant was found guilty of carrying on the business of unlawfully trafficking in a dangerous drug – where the applicant applies for an extension of time to appeal against conviction – where the applicant applies for an extension of time for leave to appeal against sentence – where the applicant had previously appealed against conviction, sought leave to adduce new evidence and applied for leave to appeal against sentence – where the applicant did not file material in support of application – where the applicant did not provide any reason for delay in bringing application – where the applicant’s submissions omitted the fact of previous unsuccessful appeal – whether the applications for extension of time should be allowed

Criminal Code 1899 (Qld), s 668D

Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, cited
R v Lumley[2009] QCA 172, cited
R v Nudd[2007] QCA 40, cited
R v Upson[2011] QCA 196, cited

COUNSEL:

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

SOLICITORS:

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

HOLMES JA: I'll ask Justice Daubney to deal with the way in which the Court will proceed in these matters first.

DAUBNEY J: On the 19th of January 2010, the applicant was found guilty after a five day trial of the offence of carrying on the business of unlawfully trafficking in the dangerous drug cannabis sativa on dates unknown between the 1st of June 2007 and the 30th of September 2007. He was sentenced to eight years' imprisonment.

The applicant appealed to this Court against his conviction, sought leave to adduce new evidence and applied for leave to appeal against sentence. On 16 August 2011, this Court ordered that:

The appeal be dismissed;
The applications for leave to adduce new evidence in the appeal and in the application for leave to appeal against sentence and to amend the application for leave to appeal against sentence be refused; and
The application for leave to appeal against sentence be refused.

The Court's reasons…

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 Upson

Details

AGLC: R v Upson [2013] QCA 76
Case: [2013] QCA 76
Decision Date: 9 April 2013

CaseChat Overview and Summary

The case of R v Upson involved the applicant who was found guilty of carrying on the business of unlawfully trafficking in a dangerous drug. The applicant sought an extension of time to appeal against both their conviction and the sentence imposed. The matter was heard in a relevant Australian court.

The primary legal issue before the court was whether the applicant's applications for an extension of time to appeal should be granted. The applicant had previously appealed against their conviction, sought leave to adduce new evidence, and applied for leave to appeal against the sentence. However, the applicant failed to file the necessary materials in support of their application and did not provide any reason for the delay in bringing the application. Additionally, the applicant's submissions omitted the fact of their previous unsuccessful appeal.

The court considered the circumstances surrounding the delay and the lack of supporting materials and reasons provided by the applicant. It was noted that the applicant's submissions did not include the fact of their previous unsuccessful appeal, which further complicated the application. The court was required to assess whether the applications for an extension of time should be allowed, considering these factors.

The court refused the application for an extension of time to appeal against conviction, given the absence of any supporting materials or reasons for the delay. However, the court reserved its decision on the application for an extension of time to seek leave to appeal against sentence, indicating that further consideration was necessary in that regard.

Orders

Orders of the court

The application for an extension of time to appeal against conviction is refused.1.

The court will reserve its decision on the application for an extension of time to seek leave to appeal against sentence.2.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Upson [2013] QCA 76
PARTIES:	R v UPSON, Robert James (applicant)
FILE NO/S:	CA No 9 of 2013 SC No 457 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	Supreme Court
DELIVERED EX TEMPORE ON:	9 April 2013
DELIVERED AT:	Brisbane
HEARING DATE:	9 April 2013
JUDGE:	Holmes and Fraser JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The application for an extension of time to appeal against conviction is refused.1. The court will reserve its decision on the application for an extension of time to seek leave to appeal against sentence.2.
CATCHWORDS:	APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the applicant was found guilty of carrying on the business of unlawfully trafficking in a dangerous drug – where the applicant applies for an extension of time to appeal against conviction – where the applicant applies for an extension of time for leave to appeal against sentence – where the applicant had previously appealed against conviction, sought leave to adduce new evidence and applied for leave to appeal against sentence – where the applicant did not file material in support of application – where the applicant did not provide any reason for delay in bringing application – where the applicant’s submissions omitted the fact of previous unsuccessful appeal – whether the applications for extension of time should be allowed Criminal Code 1899 (Qld), s 668D Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, cited R v Lumley[2009] QCA 172, cited R v Nudd[2007] QCA 40, cited R v Upson[2011] QCA 196, cited
COUNSEL:	The applicant appeared on his own behalf V A Loury for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent