Scrivener v DPP

[2001] QCA 454

SUPREME COURT OF QUEENSLAND

CITATION:

Scrivener v DPP [2001] QCA 454

PARTIES:

LEONARD PEARCE SCRIVENER
(applicant/appellant)
v
DIRECTOR OF PUBLIC PROSECUTIONS
(respondent/respondent)

FILE NO/S:

Appeal No 9094 of 2001
SC No 8345 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal from Bail Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 October 2001

DELIVERED AT:

Brisbane

HEARING DATE:

12 October 2001

JUDGES:

McPherson and Davies JJA, Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – BAIL – REVOCATION, VARIATION, REVIEW AND APPEAL – where appellant on bail for other offences prior to arrest for murder – whether Judge at first instance correct to refuse bail on the grounds that circumstances had changed

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – BAIL – GROUNDS FOR GRANTING OR REFUSING – BEFORE TRIAL – MURDER CASES

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – DISTINCTION – whether appeal from bail application is appeal de novo or appeal by way of rehearing

Bail Act 1980 (Qld), s 13, s 16(3)(b)

Supreme Court of Queensland Act 1991 (Qld), s 29(1)

Uniform Civil Procedure Rules 1999 (Qld), r 745(2), r 765(1), r 766(1)(c), r 766(2), r 767(2)

Edwards, ex p [1989] 1 Qd R 139, considered
House v The King (1936) 55 CLR 499, applied
Maher, ex p [1986] 1 Qd R 303, considered
Powell v Streatham Manor Nursing Home [1935] AC 243, applied
R v Hughes [1983] 1 Qd R 92, considered
R v Malone [1903] St R Qd 140, considered
Warren v Coombes (1979) 142 CLR 531, considered

COUNSEL:

A Boe for the appellant
R G Martin for the respondent

SOLICITORS:

Boe & Callaghan for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. McPHERSON JA: This is an appeal by Leonard Scrivener against a decision by Thomas JA sitting in Chambers in the Supreme Court refusing an application for bail pending trial on a charge of murder. The murder is alleged to have taken place in 1995 in a prison where the applicant and the deceased were inmates. At the time, the deceased was found dead in his cell bunk having died some hours before. He had, as the coroner later found, been strangled by some person or persons unknown. Since then, however, the police have been continuing their investigations of this and other acts of prison violence. Recently, they have received statements from three different informants, who claim that they had, or overheard, conversations with the appellant in gaol in which he admitted involvement in planning the murder, or cleaning up evidence of it afterwards, or that he had in fact carried out the murder himself.

1. There are some discrepancies between the accounts given by the three informants of what they say they…