R v Vidler - [2005] QCA 384

SUPREME COURT OF QUEENSLAND

CITATION:

R v Vidler [2005] QCA 384

PARTIES:

R

v

VIDLER, Bradley Milton Craig
(applicant)

FILE NO/S:

CA No 183 of 2005
SC No 464 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

14 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

3 October 2005

JUDGES:

McMurdo P, Jerrard JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant had already appealed against conviction – where applicant contends he was not informed of his counsel’s decision not to proceed with some grounds of appeal in original appeal – where applicant sought leave to bring new appeal on those grounds and new grounds – whether extension of time should be granted

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – FRESH EVIDENCE – AVAILABILITY AT TRIAL; MATERIALITY AND COGENCY – PARTICULAR CASES – AVAILABILITY AT TRIAL – EVIDENCE IN POSSESSION OF CROWN NOT DISCLOSED TO DEFENCE – where applicant sought leave to tender fresh evidence – where applicant submitted that the fresh evidence gave rise to a reasonable doubt – whether leave should be given to tender fresh evidence

Criminal Code 1899 (Qld), s 688D
Police Powers and Responsibilities Act 2000 (Qld)

Grierson v The King (1938) 60 CLR 431, followed
R v AP [2003] QCA 445; CA No 133 of 2003, cited
R v Chapman [2004] QCA 177; CA No 71 of 2004, cited
R v MAM [2005] QCA 323; CA No 118 of 2005, 30 August 2005, cited
R v Pettigrew [1996] QCA 235; [1997] 1 Qd R 601, cited
R v Tabe [1983] 2 Qd R 60, cited
R v Vidler [2000] QCA 63; (2000) 110 A Crim R 77, referred to
TKWJ v The Queen (2002) 212 CLR 124, cited

COUNSEL:

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

SOLICITORS:

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

McMURDO P: I agree with Douglas J's reasons and with the orders he proposes.

JERRARD JA: In this matter I have read the reasons for judgment and orders proposed by Douglas J, and I agree with those. Mr Vidler argued his own application in a courteous and frank way, and he understood that the problem he faced was that he had already had an unsuccessful appeal against conviction. One of the central planks of his argument before this Court was that the original grounds of appeal which had been filed, and which were dated 22 October 1999, had been abandoned without…

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 Vidler

Details

AGLC: R v Vidler [2005] QCA 384
Case: [2005] QCA 384
Decision Date: 14 October 2005

CaseChat Overview and Summary

The case of R v Vidler is a criminal appeal concerning the applicant's dissatisfaction with the outcome of his previous appeal against conviction. The applicant argues that he was not informed of his counsel's decision not to proceed with certain grounds of appeal during the original appeal and seeks leave to bring a new appeal on those grounds and additional grounds. The Court of Appeal was required to determine whether an extension of time should be granted for the applicant to lodge a new appeal and whether leave should be given to tender fresh evidence that was not available at the time of the trial.

The Court of Appeal considered the applicant's contention that he was not informed of his counsel's decision not to proceed with some grounds of appeal during the original appeal. The Court examined the application for an extension of time to lodge a new appeal and the availability of fresh evidence. The applicant submitted that the fresh evidence gave rise to a reasonable doubt about his conviction and should be considered by the Court. The Court had to decide whether the fresh evidence was indeed available at the time of the trial and whether it was material and cogent enough to warrant a new trial.

In its reasoning, the Court of Appeal found that the applicant had not demonstrated that the alleged failure to inform him of his counsel's decision not to proceed with certain grounds of appeal in the original appeal was a valid basis for an extension of time to lodge a new appeal. The Court also held that the fresh evidence was not available at the time of the trial and did not give rise to a reasonable doubt about the applicant's conviction. Consequently, the Court dismissed the application and did not grant leave to tender the fresh evidence.

The final orders of the Court of Appeal were to dismiss the application. The Court did not grant an extension of time for the applicant to lodge a new appeal, nor did it grant leave for the applicant to tender fresh evidence.

Orders

Orders of the court

Application dismissed

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 Vidler [2005] QCA 384
PARTIES:	R v VIDLER, Bradley Milton Craig (applicant)
FILE NO/S:	CA No 183 of 2005 SC No 464 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	14 October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	3 October 2005
JUDGES:	McMurdo P, Jerrard JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant had already appealed against conviction – where applicant contends he was not informed of his counsel’s decision not to proceed with some grounds of appeal in original appeal – where applicant sought leave to bring new appeal on those grounds and new grounds – whether extension of time should be granted CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – FRESH EVIDENCE – AVAILABILITY AT TRIAL; MATERIALITY AND COGENCY – PARTICULAR CASES – AVAILABILITY AT TRIAL – EVIDENCE IN POSSESSION OF CROWN NOT DISCLOSED TO DEFENCE – where applicant sought leave to tender fresh evidence – where applicant submitted that the fresh evidence gave rise to a reasonable doubt – whether leave should be given to tender fresh evidence Criminal Code 1899 (Qld), s 688D Police Powers and Responsibilities Act 2000 (Qld) Grierson v The King (1938) 60 CLR 431, followed R v AP [2003] QCA 445; CA No 133 of 2003, cited R v Chapman [2004] QCA 177; CA No 71 of 2004, cited R v MAM [2005] QCA 323; CA No 118 of 2005, 30 August 2005, cited R v Pettigrew [1996] QCA 235; [1997] 1 Qd R 601, cited R v Tabe [1983] 2 Qd R 60, cited R v Vidler [2000] QCA 63; (2000) 110 A Crim R 77, referred to TKWJ v The Queen (2002) 212 CLR 124, cited
COUNSEL:	The applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent