Court of Appeal (Qld)|2002-05-10|Before: McPherson and Williams JJA, Philippides J, Separate reasons for judgment of each member of the Court, McPherson JA and, Philippides J concurring as to the orders made, Williams, JA dissenting in, part.
McPherson and Williams JJA, Philippides J, Separate reasons for judgment of each member of the Court, McPherson JA and, Philippides J concurring as to the orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION
OR FINDING OF
JUDGE – PARTICULAR MATTERS – OTHER INSTANCES OF INTERFERENCE –
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETIONOR FINDING OFJUDGE – PARTICULAR MATTERS – OTHER INSTANCES OF INTERFERENCE –where no appeal against convictionfiled – where refusal of applicationfor stay of proceedings – where offences occurred between 1972 and 1976–where complaints renewed in 2000 – whether lapse of time resultedin abuse of process – whether failure to grant stayresulted in injustice– where applicant convicted of other sexual offences in 1980 –whether applicant already punishedfor current offences – whetherapplicant deprived of defence of autrefois convictCRIMINAL LAW– APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINSTSENTENCE – MISCELLANEOUS MATTERS– QUEENSLAND – PROCEDURE– EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – whereapplicant lodged out
of time an application for leave to appeal against sentence
– whether applicant has reasonable prospect of success in an appeal
against sentence
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED
PERSONS –
APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES
– OFFENCES AGAINST THE PERSON
– SEXUAL OFFENCES – where
applicant pleaded guilty to four counts of indecent dealing, one of sodomy and
one of rape
– where applicant sentenced to five years imprisonment –
whether failure to give effect to totality principle –
where order
pursuant to s 19(1) Criminal Law Amendment Act 1945 made –
where provision was not in force at time of offence – whether order under
s 19(1) constitutes punishment.Acts Interpretation Act 1954
(Qld), 20CCriminal Code (Qld), s 11(2), s 592A, s 592A(2)(a),
s 592A(4), s 663B (repealed), s 668(1), s 668D(1)(c)
Criminal Law Amendment Act 1945 (Qld), s 19, s 19(1),
s 19(2), s 19(9) Penalties & Sentences Act 1992 (Qld),
s 4, s 9(1)(c), s 9(1)(e), s 9(4)(b)Birch v Allen [1942] HCA 17
(1942) 65
CLR 621, citedClunies-Ross v The Commonwealth [1984] HCA 65
(1984) 155 CLR 193,
citedFenton v Thorley (1903) AC 443, citedFielding v Morley
Corporation (1899) 1 Ch 1, citedJago v District Court of New South
Wales [1989] HCA 46
(1989) 168 CLR 23, consideredLongman v The Queen [1989] HCA 60
(1989) 168
CLR 79, consideredMill v R [1988] HCA 70
(1988) 166 CLR 59, consideredR v
Cooksley [1982] Qd R 405, consideredR v C [1999] QCA 458
CA No
264 of 1999, 2 November 1999, consideredR v D [1995] QCA 329
[1996] 1 Qd R 363,
consideredR v Muckan [1975] Qd R 393, consideredVacher &
Sons Ltd v London Society of Compositors [1912] UKHL 3
[1913] AC 107, cited
Judgment (22 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - PARTICULAR MATTERS - OTHER INSTANCES OF INTERFERENCE - where no appeal against conviction filed - where refusal of application for stay of proceedings - where offences occurred between 1972 and 1976 - where complaints renewed in 2000 - whether lapse of time resulted in abuse of process - whether failure to grant stay resulted in injustice - where applicant convicted of other sexual offences in 1980 - whether applicant already punished for current offences - whether applicant deprived of defence of autrefois convict
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - MISCELLANEOUS MATTERS - QUEENSLAND - PROCEDURE - EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT - where applicant lodged out of time an application for leave to appeal against sentence - whether applicant has reasonable prospect of success in an appeal against sentence
[3]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - where applicant pleaded guilty to four counts of indecent dealing, one of sodomy and one of rape - where applicant sentenced to five years imprisonment - whether failure to give effect to totality principle - where order pursuant to
[4]
s 19(1) Criminal Law Amendment Act1945 made - where provision was not in force at time of offence - whether order under s 19(1) constitutes punishment.