R v Arnold
[2005] QCA 396
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- Unreported Judgment
- Appeal Determined (QCA)
- R v Arnold[2005] QCA 396
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R v Arnold[2005] QCA 396
R v Arnold[2005] QCA 396
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Application for Extension (Sentence & Conviction) |
ORIGINATING COURT: | |
DELIVERED ON: | 28 October 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19 October 2005 |
JUDGES: | Jerrard and Keane JJA and Atkinson J |
ORDER: | Application for extension of time within which to apply for leave to appeal against sentence and appeal against conviction refused |
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 convicted after trial of three counts of rape, two counts of attempted rape, four counts of stupefying with intent to commit an indictable offence, one count of indecent assault with a circumstance of aggravation, one count of attempted indecent assault with a circumstance of aggravation, two counts of assault, one count of indecent dealing with a circumstance of aggravation and one count of assault occasioning bodily harm – where applicant sought an extension of time in which to appeal against his convictions – where the applicant has previously appealed to the Court of Appeal against his convictions – where that prior appeal has been disposed of on the merits – whether the Court of Appeal has jurisdiction to hear a further appeal against those same convictions 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 has sought an extension of time to appeal against his sentence – where there has previously been an Attorney-General’s appeal on the grounds that the sentence is manifestly inadequate – where the Attorney-General’s appeal has been allowed – where the applicant has previously appealed to the Court of Appeal against his sentence – where that prior appeal has been disposed of on the merits – whether the Court of Appeal has jurisdiction to hear a further appeal against sentence Criminal Code 1899 (Qld), s 668D, s 671D Grierson v The King (1938) 60 CLR 431, applied R v AP [2003] QCA 445; CA No 435 of 2002 and CA No 133 of 2003, 17 October 2003, applied R v Arnold; ex parte A-G (Qld) [2002] QCA 357; (2002) 134 A Crim R 151, considered R v Arnold [2003] QCA 448; CA No 189 of 2003, 15 October 2003, considered R v MAM [2005] QCA 323; CA No 118 of 2005, 30 August 2005, applied R v Pettigrew [1996] QCA 235; [1997] 1 Qd R 601, applied |
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 |
[1] THE COURT: The applicant David Lyall Arnold seeks an extension of time to appeal against his convictions and sentence.
[2] He was convicted in the District Court on 21 September 2001 on one count of rape, two counts of attempted rape, two counts of stupefying to commit an indictable offence, one count of indecent assault with a circumstance of aggravation, one count of attempted indecent dealing with a circumstance of aggravation, one of assault occasioning bodily harm and two assaults, in respect of a male complainant who was two years old at the time of the offences. In respect of a female complainant who was eleven at the time of the offences, he was convicted of two offences of rape, two of stupefying to commit an indictable offence and one offence of indecently dealing with circumstances of aggravation.
[3] His convictions followed a trial on all of the matters. He was sentenced to nine years’ imprisonment for the three rapes, seven years for the offences of stupefying to commit an indictable offence, four years for the attempted rapes, the aggravated indecent assault and the aggravated indecent dealing, two years for the aggravated attempted indecent dealing, twelve months for the assault occasioning bodily harm and six months for the common assault. All sentences were ordered to be served concurrently.
[4] Mr Arnold appealed against his conviction and sought leave to appeal against his sentence. The Attorney-General also appealed against the sentences imposed. Those appeals were heard by the Court of Appeal on 30 May 2002.
[5] On 17 September 2002 his appeals against conviction were dismissed as was his application for leave to appeal against sentence. The Attorney-General’s appeal against sentence was allowed and the sentences imposed below were varied, substituting sentences of imprisonment of thirteen years on each of counts two, thirteen and fifteen (the rape offences) to be served concurrently. A declaration that those offences were serious violent offences was made. That decision followed a hearing in the Court of Appeal in which the applicant was represented by counsel but was also present in person. The appeal was comprehensively dealt with on the merits and lengthy reasons were given: see R v Arnold; ex parte A-G (Qld) [2002] QCA 357; (2002) 134 A Crim R 151.
[6] As the reasons for judgment record, after the appeal was argued but before judgment was delivered, the Court was advised that the applicant wished to raise issues additional to those argued by his counsel. Through the registry, the applicant was given liberty to send further submissions in writing. Submissions on those issues arrived after a deadline, which was extended at the request of the applicant, had been set. All of those submissions together with voluminous additional material were considered by the appellate court. He argued on the hearing of this application that he should have been able to argue those additional submissions orally: s 671D of the Criminal Code. That section does not give a right to the applicant or his counsel to be present and make oral submissions when further written submissions are allowed by leave after the hearing of the appeal. Procedural fairness was not denied to the applicant.
[7] On 15 October 2003 Mr Arnold again attempted to appeal his convictions. The Court of Appeal unanimously dismissed his application on the basis the Court had no jurisdiction to hear a further appeal: R v Arnold [2003] QCA 448; CA No 189 of 2003, 15 October 2003 where McPherson JA observed:
“Yes, well the Court has considered what you have said, and we are of the opinion that on the last occasion the Court considered, in detail, what was submitted by you in writing. The Court is also of opinion that constitutes a sufficient hearing and further, that if it matters, there was no application to have the matter heard orally as distinct from having the Court, as a matter of grace, consider the further written submissions, which you presented to the Court and which were considered in detail in paragraphs 11 and following of the reasons of the Court on the last occasion, that is, the reasons of this Court in hearing your initial appeal against conviction. Your appeal, or if it is an application, your application is dismissed, this Court having no jurisdiction to hear it. That is the order of the Court.”