R v Adams

[2009] QCA 51

SUPREME COURT OF QUEENSLAND

CITATION:

R v Adams [2009] QCA 51

PARTIES:

R
v
ADAMS, Timothy John
(applicant)

FILE NO/S:

CA No 357 of 2008
DC No 272 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

13 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2009

JUDGES:

Keane and Muir JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for extension of time to apply for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where applicant made claim without evidence that solicitor filed Notice of Appeal on applicant's behalf in circumstances where no Notice of Appeal filed – whether appeal has reasonable prospect of success – whether time for appeal should be extended

R v Newman (2007) 172 A Crim R 171; [2007] QCA 198, cited
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited

COUNSEL:

The applicant appeared on his own behalf
P F Rutledge for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. KEANE JA: On 17 June 2008 the applicant was convicted on his own plea of seven counts of rape, two counts of sexual assault, one count of burglary by breaking with violence, one count of attempted rape and one count of robbery. On 17 June 2008 he was sentenced to 10 years imprisonment on each of five counts of rape. He was sentenced to lesser concurrent terms of imprisonment in respect of the other offences. The conviction in respect of each of the five counts which attracted the sentence of 10 years imprisonment was declared to be for a serious violent offence under s 161B of the Penalties and Sentences Act 1992 (Qld).

1. On 18 December 2008 the applicant filed an application for an extension of time within which to seek leave to appeal against the severity of his sentence.

Delay

1. The applicant, in papers filed in support of his application, sought to explain the delay attending his attempt to challenge his sentence on the basis that his former solicitor told him that an appeal had been lodged when that was, in fact, not the case. 

1. This explanation involved an allegation of dishonest conduct against an officer of the court.  It was not supported by any evidence.  If an affidavit deposing to this explanation had been sworn by the applicant, his former solicitor would have had an opportunity to give evidence in response, and the Court would have been able to determine whether there was any substance in the applicant's explanation.  On the hearing of the application, the applicant's explanation seemed to diverge somewhat from that which he had put in writing.  The applicant suggested that he had been told that an appeal would…