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R v Volkov

R v Volkov

Case [2024] QCA 87 17 May 2024

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Volkov [2024] QCA 87

PARTIES:

R
v
VOLKOV, Vadim Victor
(applicant)

FILE NO/S:

CA No 147 of 2023
SC No 684 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 24 June 2021 (Martin J)

DELIVERED ON:

17 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

13 May 2024

JUDGES:

Mullins P and Bond JA and Crow J

ORDERS:

1.   Leave granted to tender the sentencing remarks in R v Phillips, a copy of the Crown’s written submissions before the sentencing judge and the transcript of oral argument on 25 February 2022.

2.   Save in the respects mentioned in the previous order, the application for leave to adduce further evidence is dismissed.

3.   The application for an extension of time for filing an application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to one count of trafficking in dangerous drugs – where the applicant was sentenced to nine years imprisonment, with no recommendation as to parole – where the Court of Appeal refused an earlier application for leave to appeal against sentence on the merits of the proposed appeal – where the High Court dismissed an application for extension of time within which to seek special leave to appeal on the basis that none of the proposed grounds of appeal enjoyed sufficient prospects of success and the extension sought was futile – where the applicant then filed a further application in the Court of Appeal seeking an extension of time for filing an application for leave to appeal against the sentence – whether the Court of Appeal has jurisdiction to hear the proposed second application for leave to appeal against sentence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant filed a second application seeking an extension of time for filing an application for leave to appeal against the sentence – where the proposed grounds of appeal merely raised arguments which either could have been advanced at the original hearing but were not, or which amounted merely to re-agitation in a different way of arguments which were advanced at that hearing – where the applicant advanced no cogent reason why the interests of justice would be served by granting an extension of time to pursue such grounds of appeal

Gould v R [2023] NSWCCA 103, considered
Lowe v The Queen (2015) 249 A Crim R 362; [2015] NSWCCA 46, cited
R v Manning[2023] QCA 8, considered
R v Smith (2022) 10 QR 725; [2022] QCA 89, followed
R v Upson (No 2) (2013) 229 A Crim R 275; [2013] QCA 149, considered
R v Volkov (2022) 10 QR 451; [2022] QCA 57, cited
R…

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 Volkov

Details

AGLC: R v Volkov [2024] QCA 87
Case: [2024] QCA 87
Decision Date: 17 May 2024

CaseChat Overview and Summary

The matter before the Court of Appeal was an application by the respondent, Volkov, seeking an extension of time to file an application for leave to appeal against his sentence. Volkov had pleaded guilty to one count of trafficking in dangerous drugs and was sentenced to nine years imprisonment, with no recommendation as to parole. The Court of Appeal previously refused an application for leave to appeal against sentence on the merits of the proposed appeal, and the High Court dismissed an application for an extension of time to seek special leave to appeal. Volkov sought an extension of time to file a further application for leave to appeal against his sentence.

The primary legal issue before the Court of Appeal was whether it had jurisdiction to hear the proposed second application for leave to appeal against sentence. The Court of Appeal considered whether the proposed grounds of appeal were such that they could have been advanced at the original hearing, or whether they amounted to re-agitation in a different way of arguments which were advanced at that hearing. The Court also considered whether there was a cogent reason why the interests of justice would be served by granting an extension of time to pursue such grounds of appeal.

The Court of Appeal held that the proposed grounds of appeal merely raised arguments which either could have been advanced at the original hearing but were not, or which amounted merely to re-agitation in a different way of arguments which were advanced at that hearing. The Court found that Volkov had advanced no cogent reason why the interests of justice would be served by granting an extension of time to pursue such grounds of appeal. Accordingly, the Court of Appeal refused the application for an extension of time for filing an application for leave to appeal against sentence.

The Court granted leave to tender the sentencing remarks in R v Phillips, a copy of the Crown’s written submissions before the sentencing judge and the transcript of oral argument on 25 February 2022. Save in the respects mentioned in the previous order, the application for leave to adduce further evidence was dismissed. The application for an extension of time for filing an application for leave to appeal against sentence was refused.

Orders

Orders of the court

1. Leave granted to tender the sentencing remarks in R v Phillips, a copy of the Crown’s written submissions before the sentencing judge and the transcript of oral argument on 25 February 2022.

2. Save in the respects mentioned in the previous order, the application for leave to adduce further evidence is dismissed.

3. The application for an extension of time for filing an application for leave to appeal against 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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Citations

R v Volkov [2024] QCA 87

Most Recent Citation

Venetia Louise Storry v Commissioner of Police & Jonathon David Weir [2024] QCA 98

Cases Citing This Decision

High Court Bulletin [2025] HCAB 2
Citation 1

…Supreme Court of Queensland (Court of Appeal) [2024] QCA 87…
Storry v Commissioner of Police [2024] QCA 209
Citation 2 (Para 16)

…edly considerations of policy concerning the application of the finality principle are strongly called into play. (d)Recently, in R v Volkov [2024] QCA 87, I referred with approval to observations made by Bell P in Gould , that the policy of the law is not only to prevent re-litigation of matters already litigat…
Venetia Louise Storry v Commissioner of Police & Jonathon David Weir [2024] QCA 98
Citation 3

…ndoubtedly considerations of policy concerning the application of the finality principle are strongly called into play. (d)Recently, in R v Volkov [2024] QCA 87, I referred with approval to observations made by Bell P in Gould , that the policy of the law is not only to prevent re-litigation of matters already l…

See all citing cases →

Cases Cited

Volkov v The King [2023] HCASL 104
Citation 1 (Para 6)

…nt prospects of success to warrant the grant of special leave to appeal and, accordingly, the extension sought was futile.[4] [4] Volkov v The King [2023] HCASL 104.…
Gould v R [2023] NSWCCA 103
Citation 2 (Para 11)

…e to a miscarriage of justice. This will generally be a matter of objective determination. This is a heavy burden.”[15] [9] Gould v R [2023] NSWCCA 103. [10] Gould v R [2023] NSWCCA 103 at [52]–[53] per Bell CJ; [149], [161] per Rothman J; [164] per Garling J. [11] Gould v R [2023] NSWCCA 103 at [106] per Bell CJ. […
Madden v Commissioner of Police [2023] QCA 31
Citation 3 (Para 12)

…l which the applicant proposes to pursue. [16]See Lynch v Commissioner of Police [2022] QCA 166 at [69] to [70] and Madden v Commissioner of Police [2023] QCA 31 at [26]. [17] Re Questions Referred to the Court of Disputed Returns Pursuant to Section 376 of the Commonwealth Electoral Act 1918 (Cth) Concerning th…
The King v Manning [2023] QCA 8
Citation 4 (Para 10)

…abuse of process because it was an impermissible attempt to relitigate a case which the Court conclusively determined on its merits. [6] R v Manning [2023] QCA 8 (per Morrison and McMurdo JJA and Brown J). [7] Lowe v The Queen (2015) 249 A Crim R 362; [2015] NSWCCA 46. [8] R v Williams [2016] QCA 204 at [25] p…
Lynch v Commissioner of Police [2022] QCA 166
Citation 5 (Para 12)

…ved by granting an extension of time to pursue the grounds of appeal which the applicant proposes to pursue. [16]See Lynch v Commissioner of Police [2022] QCA 166 at [69] to [70] and Madden v Commissioner of Police [2023] QCA 31 at [26]. [17] Re Questions Referred to the Court of Disputed Returns Pursuant to Sect…
R v Smith [2022] QCA 89
Citation 6 (Para 17)

…on for an extension of time insofar as it is sought to permit him to rely on any such proposed ground of appeal. [18] R v Smith (2022) 10 QR 725; [2022] QCA 89 at [66] to [74] per Applegarth J (with whom Morrison and Bond JJA agreed).…
R v Volkov [2022] QCA 57
Citation 7 (Para 4)

…e imposed was not so different from sentences imposed in other matters so as to be manifestly excessive.”[2] [1] R v Volkov (2022) 10 QR 451; [2022] QCA 57. [2] R v Volkov (2022) 10 QR 451; [2022] QCA 57 at [101].…
Re Culleton [2018] HCA 33
Citation 8 (Para 12)

…[16], citing Federated Engine Drivers’ & Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415 and Re Culleton (2017) 91 ALJR 302 at 306-307 [23]; 340 ALR 550 at 555; [2017] HCA 3.…
Re Nash (No 2) [2017] HCA 52
Citation 9 (Para 12)

…turns Pursuant to Section 376 of the Commonwealth Electoral Act 1918 (Cth) Concerning the Hon Ms Fiona Nash (No 2) (2017) 263 CLR 443; 350 ALR 204; [2017] HCA 52 at [16], citing Federated Engine Drivers’ & Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415 and Re Culleton (201…
Re Culleton [2017] HCA 3
Citation 10 (Para 12)

…iation of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415 and Re Culleton (2017) 91 ALJR 302 at 306-307 [23]; 340 ALR 550 at 555; [2017] HCA 3.…
R v Williams [2016] QCA 204
Citation 11 (Para 10)

…R v Manning [2023] QCA 8 (per Morrison and McMurdo JJA and Brown J). [7] Lowe v The Queen (2015) 249 A Crim R 362; [2015] NSWCCA 46. [8] R v Williams [2016] QCA 204 at [25] per McMurdo JA (Fraser and Gotterson JJA agreeing).…
Lowe v The Queen [2015] VSCA 327
Citation 12 (Para 10)

…relitigate a case which the Court conclusively determined on its merits. [6] R v Manning [2023] QCA 8 (per Morrison and McMurdo JJA and Brown J). [7] Lowe v The Queen (2015) 249 A Crim R 362; [2015] NSWCCA 46. [8] R v Williams [2016] QCA 204 at [25] per McMurdo JA (Fraser and Gotterson JJA agreeing).…
Lowe v R [2015] NSWCCA 46
Citation 13 (Para 10)

…vely determined on its merits. [6] R v Manning [2023] QCA 8 (per Morrison and McMurdo JJA and Brown J). [7] Lowe v The Queen (2015) 249 A Crim R 362; [2015] NSWCCA 46. [8] R v Williams [2016] QCA 204 at [25] per McMurdo JA (Fraser and Gotterson JJA agreeing).…
R v Upson (No 2) [2013] QCA 149
Citation 14 (Para 9)

…utside the general rule that the Court lacks jurisdiction to hear the second application.”[5] [5] R v Upson (No 2) (2013) 229 A Crim R 275; [2013] QCA 149 at [25].…
Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd [1911] HCA 31
Citation 15 (Para 12)

…3 CLR 443; 350 ALR 204; [2017] HCA 52 at [16], citing Federated Engine Drivers’ & Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415 and Re Culleton (2017) 91 ALJR 302 at 306-307 [23]; 340 ALR 550 at 555; [2017] HCA 3.…

Legislation Cited

Commonwealth Electoral Act 1918 (Cth)
1 mention (from Para 12)

CITATION:	R v Volkov [2024] QCA 87
PARTIES:	R v VOLKOV, Vadim Victor (applicant)
FILE NO/S:	CA No 147 of 2023 SC No 684 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 24 June 2021 (Martin J)
DELIVERED ON:	17 May 2024
DELIVERED AT:	Brisbane
HEARING DATE:	13 May 2024
JUDGES:	Mullins P and Bond JA and Crow J
ORDERS:	1. Leave granted to tender the sentencing remarks in **R v Phillips, a copy of the Crown’s written submissions before the sentencing judge and the transcript of oral argument on 25 February 2022. 2. Save in the respects mentioned in the previous order, the application for leave to adduce further evidence is dismissed. 3. The application for an extension of time for filing an application for leave to appeal against sentence is refused.**
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to one count of trafficking in dangerous drugs – where the applicant was sentenced to nine years imprisonment, with no recommendation as to parole – where the Court of Appeal refused an earlier application for leave to appeal against sentence on the merits of the proposed appeal – where the High Court dismissed an application for extension of time within which to seek special leave to appeal on the basis that none of the proposed grounds of appeal enjoyed sufficient prospects of success and the extension sought was futile – where the applicant then filed a further application in the Court of Appeal seeking an extension of time for filing an application for leave to appeal against the sentence – whether the Court of Appeal has jurisdiction to hear the proposed second application for leave to appeal against sentence CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant filed a second application seeking an extension of time for filing an application for leave to appeal against the sentence – where the proposed grounds of appeal merely raised arguments which either could have been advanced at the original hearing but were not, or which amounted merely to re-agitation in a different way of arguments which were advanced at that hearing – where the applicant advanced no cogent reason why the interests of justice would be served by granting an extension of time to pursue such grounds of appeal Gould v R [2023] NSWCCA 103, considered Lowe v The Queen (2015) 249 A Crim R 362; [2015] NSWCCA 46, cited R v Manning[2023] QCA 8, considered R v Smith (2022) 10 QR 725; [2022] QCA 89, followed R v Upson (No 2) (2013) 229 A Crim R 275; [2013] QCA 149, considered R v Volkov (2022) 10 QR 451; [2022] QCA 57, cited R…