Hinselwood v Abbott - [2001] QCA 348

[2001] QCA 348

COURT OF APPEAL

McMURDO P
WILLIAMS JA
HOLMES J

CA No 129 of 2001

FIONA ANN HINSELWOOD

GRAHAM STUART ABBOTT (Applicant)

BRISBANE

..DATE 17/08/2001

JUDGMENT

THE PRESIDENT: Justice Holmes will deliver her reasons first.

HOLMES J: The applicant seeks leave to appeal against the decision of a District Court Judge, striking out an appeal under section 222 of the Justices Act, on the ground of his non appearance. He also applies for an extension of time, because the decision appealed from was made on 13 November 2000 and this application was not filed until 24 May 2001.

The applicant had appealed against a conviction of possession of tainted property. The grounds of appeal in the notice of appeal he filed under section 222 of the Justices Act, were not well framed. They consisted of assertions that the property was not tainted, that there might have been weaknesses in procedure and that he had given evidence which he claimed was uncontradicted.

He also wished to present fresh evidence, although whether it was fresh in the legal sense, may be questioned. There were, it seems, a number of reasons why the Magistrate might have found the applicant's account not credible, but there are some concerns in the Magistrate's decision. He appears to have accepted and relied on hearsay evidence in rebuttal, as to telephone inquiries made by the investigating police officer of unidentified persons at Telstra and Q-Build.

Be that as it may, the original appeal to the District Court, was not entirely without prospects. That appeal was set down for hearing on 31 October 2000, but according to what the learned Judge at first instance was told by the respondent's representative, it was adjourned till
13 November 2000, after Mr Abbott advised a new address.

He advised two addresses, it appears. Letters were sent to both addresses in the possession of the Court, one of which was a post office box, advising of a new date. One letter was returned unclaimed, the other was not. When the applicant failed to appear on 13 November, the learned Judge at first instance on the application of counsel for the respondent, made under section 229 of the Justices Act, struck out the appeal and issued a warrant.

In doing so, he relied it appears on what was contained on the Court file as to the letters having been sent. No material was actually put before him by the respondent. The applicant says that he had made arrangements for a friend to pick up his mail from the post office box and a friend on this occasion delayed in passing the mail on.

The applicant was then arrested on 18 November and did not receive advice of the appeal date until it reached him in prison. The principles governing an application for extension of time were considered in the Queen v. Tait, 1999, 2 Queensland Reports, page 667.

The Court will consider whether any good reason is shown to account for…

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 Hinselwood v Abbott

Details

AGLC: Hinselwood v Abbott [2001] QCA 348
Case: [2001] QCA 348
Decision Date: 17/08/2001

CaseChat Overview and Summary

In the case of Hinselwood v Abbott, the applicant, Graham Stuart Abbott, sought leave to appeal against the decision of a District Court Judge, who had struck out an appeal on the ground of his non-appearance. Abbott had appealed against a conviction of possession of tainted property, but his grounds of appeal were poorly framed. He also sought an extension of time, as his application was filed after the prescribed period. The Court of Appeal was required to determine whether the District Court Judge's decision to strike out the appeal was legally sound and whether the applicant's application for an extension of time should be granted.

The Court of Appeal considered the principles governing an application for an extension of time, as outlined in the case of Queen v. Tait. The Court noted that the applicant had provided a reasonable explanation for the delay, citing his confinement in prison and difficulties in obtaining legal assistance. The Court found that the appeal had some merits and that the application to strike out the appeal did not meet the requirements of section 229(1) of the Justices Act, which requires service on the appellant before the application is made. Consequently, the Court granted the applicant leave to appeal, extended the time for filing an appeal, allowed the appeal, and set aside the order of the District Court.

The Court of Appeal ordered that the matter proceed in the District Court according to law. The judges unanimously agreed with the proposed orders, which were ultimately made by the Court.

Orders