R v Appoo

[2006] QCA 183

SUPREME COURT OF QUEENSLAND

CITATION:

R v Appoo [2006] QCA 183

PARTIES:

R
v
APPOO, Ashley John
(applicant)

FILE NO/S:

CA No 82 of 2006
SC No 374 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

29 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

29 May 2006

JUDGES:

de Jersey CJ, Williams & Holmes JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for the extension of time within which to appeal sentence and conviction is refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL-PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the applicant pleaded guilty to one count of manslaughter and one count of grievous bodily harm – where an indefinite sentence was refused – where the applicant was sentenced to 18 years imprisonment – where the application was 17 months out of time - whether an appeal against conviction or sentence would have any prospect of success – whether the application for extension of time should be granted

The following cases were cited:
R v Bates; R v Baker [2002] QCA 174; CA No 295 of 2001, CA No 329 of 2001, 17 May 2002
R v MacKenzie [2004] QCA 324; CA No 353 of 1999, 20 October 2000; (2000) 113 A Crim R 534

COUNSEL:

The applicant appeared on his own behalf with L Appoo assisting
S G Bain for the respondent

SOLICITORS:

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

THE CHIEF JUSTICE:  On the 23rd of December, 2004, the applicant was sentenced to 8 years' imprisonment for the offence of manslaughter and a concurrent 10 year term for the offence of doing grievous bodily harm.  He had pleaded guilty on the 11th of October, 2004. 

The Crown sought the imposition of an indefinite sentence which was eventually refused.  Prior to the sentencing, the Mental Health Court had considered the applicant's condition at the time of committing the offences and had determined that the applicant was not then suffering from unsoundness of mind or a state of diminished responsibility. 

The offences were committed in relation to a married couple.  The applicant killed the husband and did grievous bodily harm to the wife.  All of this involved brutal attacks upon them.  Support for the sentences imposed by the learned sentencing Judge may be gathered from Bates v. Baker, 2002, Queensland Court of Appeal 174. 

On 3rd April, 2006, the applicant filed an application for extension of time within which to appeal against conviction and apply for leave to appeal against sentence.  The application was approximately 17 months out of time.  There was no sworn material explaining the lateness of the application. 

The grounds set out in the application for extension of time read "Incorrect information from witness", although that was not developed here further.  No sworn material has been filed in support of the applications.  We did, however, hear today orally from the applicant's father Mr Leo Appoo with the consent of the applicant who felt unable properly to develop the case himself.  We also heard briefly from the applicant.

Mr Appoo Senior explained the delay by reference to a series of unsuccessful attempts on his part and his son's part to interest Legal Aid in the case. 

In relation to the proposed appeal against conviction, the applicant has not demonstrated that his being convicted on his pleas of guilty was relevantly unfair amounting to a miscarriage of justice, see McKenzie (2000) 113 Australian Criminal Reports 534 at paragraphs 31 and 32. 

The staged nature of the proceeding to the point of sentencing, with involvement of the Mental Health Court and deferment of the process to facilitate the application for the indefinite sentence, meant the applicant had a number of opportunities to challenge the Crown case.  The comprehensive sentencing remarks suggest that the Crown case was overwhelmingly strong.

Bearing in mind the substantial delay and, in the end, inadequate explanation for it and the plain lack of merit in the proposed appeal and application, the application for extension of time should, in my view, be refused.

WILLIAMS JA:  I agree.

HOLMES JA:  I agree.

THE CHIEF JUSTICE:  The application is refused. 

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