R v Ainsworth

[1994] QCA 347

[1994] QCA 347

COURT OF APPEAL
DAVIES JA
McPHERSON JA

AMBROSE J

Appeal No 225 of 1994
THE QUEEN
v.

JUSTIN AINSWORTH Applicant

BRISBANE
..DATE 04/08/94
McPHERSON JA: This is an application for an extension of time
within which to appeal against conviction and within which to
apply for leave to appeal against a sentence imposed at the
conclusion of a trial in the District Court in March 1994.
The applicant was sentenced to imprisonment for two years on
each of the two counts stated in the indictment, those
sentences to be served concurrently.

The explanation for the delay in appealing, or applying for leave to appeal, is subsidiary to the main question with which we are concerned here, which is whether, if an extension were granted, the appeal or application for leave to appeal, has any identifiable prospect of success.

The applicant, in the course of the submissions which he made to us in person, challenged the correctness of the verdicts of the jury, principally on the ground of the identification evidence. He says that the evidence was unsatisfactory for various reasons, among which were that it came from a policeman and that it was not corroborated.

The policeman, in giving evidence at the trial, claimed an acquaintance with the applicant from some time prior to the matter which brought the applicant before the jury. It was consequently suggested by the applicant that that would have prejudiced him in the mind of the jury, and so on.

We are satisfied that there is no substance in any of these matters of fact, nor in any of the quite generalised complaints that have been made to the effect that the trial Judge did not give appropriate directions on the matter of identity or identification in the course of his instructions to the jury.

We are also satisfied that nothing has been put before us that would persuade us that the Judge's directions were biased. Indeed, nothing has been presented to us at all to show that any of the directions of the Judge to the jury were insufficient or that his summing up lacked balance.

Matters of the kind complained of by the applicant in his submissions to us are ordinarily catered for by applications for redirections at the end of the summing up. At least that is so in a case where the accused is represented by counsel, as we are told the applicant was in this case.

To establish appeal prospects sufficient to justify this Court in extending the time within which to appeal, it is not enough for an applicant simply to say that he considers that the Judge or the jury were wrong in something they have done or are said to have done.

The remarks I have made are directed primarily to the offence of unlawful use of which the applicant was found guilty, but what I have said applies equally to the complaints about the verdict on the stealing or receiving count. With respect to that matter also, no material has been placed before us that would enable us to be satisfied that any prospect of a successful appeal against the conviction exists at all.

As to the matter of sentence, the applicant complained that he had been found guilty of stealing or receiving, the jury being unable to say which, and that he had been sentenced for stealing, which he thought was the more serious offence.

A verdict of the kind mentioned is specifically provided for in section 568(4) of the Criminal Code which provides that, in the event of such a verdict, sentencing is to take place on the basis of the lesser punishment prescribed. The maximum for receiving is, we were reminded, 14 years' imprisonment, and for stealing 3 years. Apart therefore from its being required by law, the applicant may consequently think himself fortunate that he was not sentenced, as he says he would have preferred to have been, for the receiving offence.

He has a record of similar offences going back a good many years, and the sentence of two years which was imposed by the learned sentencing Judge in respect of these two further offences is one that is not demonstrably outside the proper limits of a correct sentencing discretion.

The only other point of apparent consequence that emerged from the hearing of this application was that the applicant claimed to have spent approximately a month in custody, or it may have been more or less, before he was released on bail, and that

consequently that period should have been taken into account
in fixing his sentence of two years.

Once that matter emerged, the application was stood down until after lunch, at which time the Crown was able to assure us that the fact of the matter is that the applicant was indeed in custody after being arrested for this offence in March, but that after some three days the parole that had been allowed to him in respect of previous offences was suspended. The consequence of that was that, apart from the first three days, his detention in custody was not exclusively referable to the offence with which we are concerned here. It may be that if the matter were already before us as an appeal, or as an application for leave to appeal against sentence, and not merely as it is as an application to extend time within which to appeal, it would be either necessary or appropriate to make some declaration with respect to the three days to which I have referred.

However, on an application such as this, which is merely an application to extend time within which to appeal, it seems to me that, even if we wished to do so, we ought not to take the step of concerning ourselves with the short period of three days I have mentioned. In my view, the application to extend time within which to appeal or apply for leave to appeal has no merit and should be refused.

DAVIES JA: I agree. AMBROSE J: I agree.

McPHERSON JA: The order of the Court is that the application is dismissed.

-----