Court of Appeal (Qld)|2001-08-10|Before: McMurdo P, Williams JA and Byrne JSeparate reasons for judgment of each, member of the Court, Williams JA and Byrne J concurring as to the order made, McMurdo P dissenting
McMurdo P, Williams JA and Byrne JSeparate reasons for judgment of each, member of the Court, Williams JA and Byrne J concurring as to the order made, McMurdo P dissenting
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE
PERSON – HOMICIDE – PROPERTY OFFENCES – ARSON
- where
applicant charged with arson and murder – where indictment presented in
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THEPERSON – HOMICIDE – PROPERTY OFFENCES – ARSON- whereapplicant charged with arson and murder – where indictment presented inSupreme Court at Bundaberg – where applicationmade under s 559Criminal Code for change of venue – where application refused– where applicant seeks to appeal that interlocutory order - whetherthereis a right of appeal from an order of a judge refusing an application for changeof venue on indictment before the SupremeCourtPROCEDURE –MISCELLANEOUS PROCEDURAL MATTERS – JURISDICTION – CRIMINAL MATTERS -whether s 559 Criminal Code is limited by s 592A Criminal Code– where application for change of venue is not expressly provided for by s592(A)(2) – where a s 559 application is caughtby the general wording ofs 592A – where rulings made under s 592A are binding unless ‘specialreason’ is shown– where s 592A(4) operates to prevent an appeal
from an interlocutory order prior to convictionPROCEDURE –
whether Court of Appeal in its original jurisdiction may by declaration
pronounce
on the correctness of interlocutory orders in proceedings upon
indictment – where it is not appropriate to exercise such power
in this
caseCriminal Code s 557(1), s 557(9), s 559, s 592A, s 592A(1), s
592A (2), s 592A(4), s 668, s 668D, s 669A, s 669A(1A), Ch 67 Districts
Court Act 1967 (Qld) s 92(2), s 118(3)Judicature Act 1876 (Qld) s
10Supreme Court of Queensland Act 1991(Qld) s 8(1), s 9, s 29(1), s
29(3), s 68(2), s 69(1), s 69(1)(a), s 69(2)Supreme Court Act 1995
(Qld) s 254, s 223 Supreme Court Act 1867 (Qld) s 60Coats
& Ors v Southern Cross Airlines Holdings (In Liq) & Anor [1998] QCA
125, Appeal No 4718 of 1998, 12 June 1998, affirmed Director of Public
Prosecutions v His Honour Judge G D Lewis [1997] 1 VR 391,
consideredEx parte Edwards [1989] 1 QdR 139, consideredEx
parte Maher [1986] 1 QdR 303, referred toEx parte Veltmeyer
[1989] 1 QdR 462, referred toGlennon v R [1992] HCA 16
(1992) 173 CLR 592,
consideredJago v The District Court (NSW) & Ors [1989] HCA 46
(1989) 168 CLR
23, consideredNguyen v Nguyen (1990) 169 CLR 245, referred
toNicholas v State of Queensland [1983] 1 QdR 580, consideredR
v Butler SC No 511 of 1998, 9 April 1999, consideredR v Cattell
[1968] 1 NSWR 156, referred toR v Davis (1964) NZLR 417,
consideredR v Drozd [1993] QCA 224
(1993) 67 ACrimR 112, referred toR v
Farr (1994) 74 ACrimR 405, consideredR v His Honour Judge Noud, ex
parte
MacNamara [1991] 2 QdR 86, referred toR v Johannesen and
Chambers [1996] QCA 111
(1996) 87 ACrimR 126, referred toR v Lowrie [1997] QCA 434
[1998] 2 QdR
579, followedR v Pettigrew [1996] QCA 235
[1997] 1 QdR 601, referred toR v
Queensland Television Ltd
ex parte Attorney-General [1983] 2 QdR 648,
affirmedR v Robertson (1997) 91 ACrimR 388, referred toR v
Skase [1995] 2Qd R 297, consideredR v Yanner [1998] 2 QdR 208,
followedRozenes v Baljajev [1995] VicRp 34
[1995] 1 VR 533, consideredThe King
v Foster & Ors: ex parte Gillies [1937] StRQd 67, affirmedYates v
Wilson [1989] HCA 68
(1989) 168 CLR 338, considered
Judgment (33 paragraphs)
[1]
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - PROPERTY OFFENCES - ARSON - where applicant charged with arson and murder - where indictment presented in Supreme Court at Bundaberg - where application made under s 559 Criminal Code for change of venue - where application refused - where applicant seeks to appeal that interlocutory order - whether there is a right of appeal from an order of a judge refusing an application for change of venue on indictment before the Supreme Court
[2]
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - JURISDICTION - CRIMINAL MATTERS - whether s 559 Criminal Code is limited by s 592A Criminal Code - where application for change of venue is not expressly provided for by s 592(A)(2) - where a s 559 application is caught by the general wording of s 592A - where rulings made under s 592A are binding unless 'special reason' is shown - where s 592A(4) operates to prevent an appeal from an interlocutory order prior to conviction
[3]
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - JURISDICTION - CRIMINAL MATTERS - whether s 69(1)(a) Supreme Court of Queensland Act1991 (Qld) provides the Court of Appeal with jurisdiction to entertain an appeal from an order of a Judge of the trial division of the Supreme Court in an interlocutory way in a criminal matter - R v Lowrie applied - no right of appeal against an order made in an interlocutory way in relation to a trial on indictment - s 69 does not confer upon the Court of Appeal any appellant jurisdiction not formally possessed by the Full Court or the Court of Criminal Appeal.
[4]
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - DECLARATIONS - CRIMINAL PROCEEDINGS - whether s 69Supreme Court of Queensland Act1991 (Qld) is subject to the Criminal Code - where Criminal Code limits appeals from criminal matters commenced by indictment - R v Lowrie applied - where s 69 does not enlarge rights of appeal conferred by Chapter 67 of the Criminal Code in proceedings on indictment
[5]
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JURISDICTION - where s 223 Supreme Court Act 1995 (Qld) permits the Court of Appeal to order a change of venue - where such power is only to be exercised in appropriate circumstances -where it is not appropriate to exercise such power in this case
[6]
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - DECLARATIONS - CRIMINAL PROCEEDINGS - whether a declaration should be made that the trial be held in Brisbane - whether Court of Appeal in its original jurisdiction may by declaration pronounce on the correctness of interlocutory orders in proceedings upon indictment - where it is not appropriate to exercise such power in this case
[7]
Criminal Code s 557(1), s 557(9), s 559, s 592A, s 592A(1), s 592A (2), s 592A(4), s 668, s 668D, s 669A, s 669A(1A), Ch 67
[8]
Supreme Court of Queensland Act 1991(Qld) s 8(1), s 9, s 29(1), s 29(3), s 68(2), s 69(1), s 69(1)(a), s 69(2)
[9]
Coats & Ors v Southern Cross Airlines Holdings (In Liq) & Anor[1998] QCA 125, Appeal No 4718 of 1998, 12 June 1998, affirmed
[10]
Director of Public Prosecutions v His Honour Judge G D Lewis[1997] 1 VR 391, considered