R v Adair and Attorney-General of Queensland

[1997] QCA 185

IN THE COURT OF APPEAL	[1997] QCA 185
SUPREME COURT OF QUEENSLAND

C.A. No. 34 of 1997

Brisbane

[A-G v. Adair]

THE QUEEN
v.
WILLIAM ADAIR

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

(Applicant)

Davies J.A. Ambrose J. White J.

Judgment delivered 27 June 1997

Joint reasons for judgment of Davies J.A. and Ambrose J; separate reasons of White J. concurring as to the order made.

APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPLY FOR

LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	CRIMINAL LAW - extension of time - sentence - order imposed by magistrate was beyond power - whether existence of an obvious error is alone sufficient to justify the grant of an extension of time.
Counsel:	Mr. J. Griffin Q.C., with him Mr. B. Farr for the applicant Mr. W. Sofronoff Q.C. for the respondent
Solicitors:	Crown Solicitor for the applicant Legal Aid Office (Queensland) for the respondent
Hearing Date:	18 March 1997

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND AMBROSE J.

Judgment delivered 27 June 1997

This is an application by the Attorney-General for an extension of time within which to appeal against a sentence which was imposed in the Magistrates Court for the offence of assault occasioning bodily harm whilst armed. The sentence, which was one of a fine of $1,500, was imposed on 26 August 1996. An appeal by the Attorney against that sentence had to be made within 28 days of that date, that is by 23 September 1996. No appeal was made by that date.

An application for extension of time within which to appeal was made on 31 January this year, more than four months out of time. This Court has power to extend the time within which the Attorney-General may appeal as it may extend the time within which an application for leave to appeal may be made. However in either case substantial grounds must be shown for granting such an application including, ordinarily, a satisfactory explanation for the delay which, in this case, has been substantial.

In our view there is no satisfactory explanation for the delay. The explanation is, in short, that the Attorney has changed his mind about appealing. That may, of course, be put another way as it was put on the Attorney's behalf here, namely that, in the first place, he received advice not to appeal and, after complaint by the victim of the assault, sought advice from another source which was to the contrary; in effect that the sentence ought to have included an order for compensation. But that cannot be a satisfactory explanation. If it were it would make a mockery of the time limit which, for good reason, is imposed on the making of appeals for it would mean that in every case in which the person who lost at trial changed his or her mind about appealing he or she could appeal out of time; or at least it would mean that on every occasion on which such a person obtained contradictory advices, the second of which favoured an appeal, an extension could be granted and should be so granted if the application or appeal is made promptly after the favourable advice whenever that was.

Nor is the Attorney's position improved because, it may be assumed, if the application were granted there would be reasonable prospects of success. Two separate requirements must ordinarily be established for the favourable exercise of the Court's discretion; first that there is a reasonable explanation for the delay and secondly that there would be reasonable prospects of success if the application were granted: see, for example, R. v. Doyle C.A. No. 454 of 1993, judgment delivered 6 April 1994.

That would be the end of the matter were it not for the fact that the Attorney-General submits, and the respondent rightly concedes, that the order imposing the fine of $1,500 was beyond power, the maximum fine for this offence being $1,000. The Attorney submits that an extension should be granted in order to correct this excess of jurisdiction but that, because setting aside the sentence would require this Court to exercise the sentencing discretion afresh, we should consider the question whether compensation should have been ordered.

The respondent, whilst conceding that the order imposing the fine was beyond power, opposes the application for an extension of time. He has paid the fine and does not wish to contest the validity of the order.

There are cases in which, notwithstanding the absence of a reasonable explanation for delay this Court may grant an extension of time within which to appeal where the interests of justice demand it. R. v. Holman C.A. No. 484 of 1993, judgment delivered 5 May 1994, is an example of this. But the existence of an obvious error in the judgment below, even, as in this case, a jurisdictional error, is not alone sufficient to justify the grant of an extension of time in the absence of an adequate explanation for the delay.

In view of the fact that, in the present case, the party who has suffered in consequence of the error, the respondent, opposes an extension of time to allow its correction there is no manifest injustice which would require correction by this Court in the absence of any satisfactory explanation for the substantial delay by the Attorney in seeking this extension. The application should therefore in our view be refused.

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 27 June 1997

I agree for the reasons expressed in the joint judgment of Davies JA and Ambrose J that the Attorney-General's application for an extension of time within which to appeal the sentence imposed in the Magistrates Court ought to be refused.