Holmes and Fraser JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
Application refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – GENERALLY – where the applicant was found guilty at trial of carrying on the business of unlawfully trafficking in the dangerous drug, cannabis sativa – where the applicant was sentenced to eight years imprisonment – where the applicant’s appeal against his conviction was dismissed and application for leave to appeal against sentence was refused on the merits on 16 August 2011 – where the applicant filed an application for an extension of time within which to appeal again against his conviction and for leave to appeal against sentence – where the applicant sought to rely on different grounds of appeal and new evidence – whether the court has jurisdiction to entertain a second application for leave to appeal against sentence where the first application has been dismissed on the merits of the proposed appeal
CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the court refused to grant an extension of time within which to appeal against conviction on 9 April 2013, but reserved its decision on the application for an extension of time for leave to appeal against sentence – whether an extension of time should be granted
Constitution of Queensland (Qld), s 58(1) Criminal Code 1899 (Qld), s 668D, s 668E, s 668F, s 669, s 670, s 671, s 671B, s 671D, s 672, s 672A Criminal Practice Rules 1999 (Qld), r 69(2), r 70(1)
[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.
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Details
AGLC
R v Upson (No 2) [2013] QCA 149
Case
[2013] QCA 149
Decision Date
CaseChat Overview and Summary
The applicant was found guilty at trial of trafficking in cannabis sativa and was sentenced to eight years imprisonment. Following the dismissal of the applicant’s appeal against his conviction and refusal of leave to appeal against sentence on 16 August 2011, the applicant filed an application for an extension of time within which to appeal against his conviction and for leave to appeal against sentence. The applicant sought to rely on different grounds of appeal and new evidence. The court was required to determine whether it had the jurisdiction to entertain a second application for leave to appeal against sentence where the first application had been dismissed on the merits of the proposed appeal. The court was also required to determine whether an extension of time should be granted for the applicant to appeal against sentence.
The court held that it had jurisdiction to entertain a second application for leave to appeal against sentence, but that the application was without merit. The court found that the applicant had failed to demonstrate any new evidence that was not previously available or that could not have been discovered with due diligence. The court further found that the applicant had not demonstrated any arguable error of law or fact that would warrant a grant of leave to appeal. The court also found that the applicant had not demonstrated any exceptional circumstances that would warrant an extension of time for the applicant to appeal against sentence. The court held that the application was an abuse of process and refused the application.
The application for an extension of time within which to appeal against conviction was refused. The application for an extension of time for leave to appeal against sentence was also refused.