R v Atkinson - [2007] QCA 68

SUPREME COURT OF QUEENSLAND

CITATION:

R v Atkinson [2007] QCA 68

PARTIES:

R
v
ATKINSON, Michael Todd
(applicant)

FILE NO/S:

CA No 326 of 2006
DC No 188 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED EX TEPMORE ON:

9 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2007

JUDGES:

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

ORDER:

Application refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL-PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL EXTENSION OF TIME – WHEN REFUSED – where applicant was convicted on one count of indecent treatment of a child under 16 and under his care – where sentenced to six months imprisonment – where applicant did not pursue an appeal until after his sentence was served – whether there was a good reason for delay – whether appeal would have good prospects of success – whether interests of justice require the granting of an extension

R v Tait [1999] 2 Qd R 667; [1998] QCA 304, CA No 210 of 1998, 6 October 1998, applied

COUNSEL:

A Boe (sol) for the appellant
D R MacKenzie for the respondent

SOLICITORS:

Boe Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: The applicant was tried in the District Court at Rockhampton on the 25th of November 2005 on one count of indecent treatment of a child under 16 and under his care. The offence was alleged to have occurred between 29 June 1997 and 12 April 1998. He was found guilty and sentenced to six months' imprisonment on 25 November 2005.

He says in an affidavit that he was advised by his barrister that he had good prospects of success on appeal but was advised by his solicitor not to appeal until after he had served his sentence because on appeal the sentence could be increased. He in fact served his sentence and was released in about March 2006.

On release he saw his trial solicitor and had discussions about an appeal. Thereafter, over approximately six months he saw a number of other solicitors who gave advice with respect to his position.

He claims that it was not until October 2006 that a solicitor informed him of the 28 day time limit for lodging an appeal. He still did nothing for a further two months. It was not until the 4th of December 2006 that an application for an extension of time was lodged.

It should also be noted that in about September 2006 a criminal compensation claim had been foreshadowed.

The applicant's affidavit also discloses that he had been under medical treatment for depression and other illnesses from about April 2006.

None of that material satisfies me that the applicant has established good reason for the delay in not lodging the application until December 2006. Mr Boe, who appeared…

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.

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Details

Case: [2007] QCA 68
Decision Date: 9 March 2007

CaseChat Overview and Summary

The appeal in R v Atkinson arose in the Queensland Court of Appeal. The applicant, previously convicted of indecent treatment of a child under 16 and under his care, was sentenced to six months imprisonment. Following the completion of his sentence, the applicant sought to appeal his conviction. The primary issue before the court was whether there was a sufficient justification for the delay in lodging the appeal, whether the appeal had reasonable prospects of success, and whether the interests of justice mandated an extension of time for the appeal to be heard.

In assessing the application, the court considered the length and circumstances of the delay in lodging the appeal. The applicant had not pursued the appeal until after his sentence was served. The court found that the applicant had not provided a satisfactory explanation for the delay, and that the delay was unreasonable. The court also considered the prospects of success of the appeal, and concluded that there was no substantial question of law or fact that warranted the appeal being heard. Finally, the court determined that the interests of justice did not require the granting of an extension of time for the appeal to be heard.

In light of the above, the court dismissed the application for an extension of time to lodge the appeal. The applicant's appeal was consequently refused. The court held that the applicant's delay in lodging the appeal, coupled with the lack of prospects of success and the absence of any compelling reason to grant an extension, justified the refusal of the application.

Orders

Orders of the court

Application refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Atkinson [2007] QCA 68
PARTIES:	R v ATKINSON, Michael Todd (applicant)
FILE NO/S:	CA No 326 of 2006 DC No 188 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED EX TEPMORE ON:	9 March 2007
DELIVERED AT:	Brisbane
HEARING DATE:	9 March 2007
JUDGES:	Williams and Keane JJA and Muir J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL-PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL EXTENSION OF TIME – WHEN REFUSED – where applicant was convicted on one count of indecent treatment of a child under 16 and under his care – where sentenced to six months imprisonment – where applicant did not pursue an appeal until after his sentence was served – whether there was a good reason for delay – whether appeal would have good prospects of success – whether interests of justice require the granting of an extension R v Tait [1999] 2 Qd R 667; [1998] QCA 304, CA No 210 of 1998, 6 October 1998, applied
COUNSEL:	A Boe (sol) for the appellant D R MacKenzie for the respondent
SOLICITORS:	Boe Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent