R v Ball - [2006] QCA 186

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ball [2006] QCA 186

PARTIES:

R
v
BALL, Matthew James
(applicant)

FILE NO/S:

CA No 79 of 2006
DC No 879 of 2004
DC No 1788 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

1 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2006

JUDGES:

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

ORDER:

1. The Indictment No 1788/04 is amended accordingly
2. Application refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant pleaded guilty to one count of maintaining an unlawful sexual relationship with a female child under 16 years of age, in the course of which he had unlawful carnal knowledge with her – where the applicant was sentenced to seven years imprisonment with a recommendation for post-prison community based release after two years and nine months – where the application was filed six 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 B [1995] QCA 636; CA No 328 of 1995, 23 October 1995
R v B [1997] QCA 213; CA No 58 of 1997, 18 June 1997
R v BAO [2004] QCA 445; CA No 314 of 2004, 22 November 2004
R v SAG [2004] QCA 286; CA No 55 of 2004, 6 August 2004

COUNSEL:

The applicant appeared on his own behalf
S G Bain for the respondent

SOLICITORS:

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

THE CHIEF JUSTICE: On the 1st of September last year the applicant pleaded guilty to the offence of maintaining an unlawful sexual relationship with a female child under 16 years of age, in the course of which he had unlawful carnal knowledge with her. The charge alleged his maintenance of that relationship between the 1st of July 2001 and the 15th of April 2003. He also pleaded guilty to the offence of breaking and entering premises and committing wilful damage.

He was sentenced to seven years imprisonment with a recommendation for post prison community based released after two years and nine months in respect of the maintaining, with a concurrent term of six months imprisonment for the other offence.

At the time he committed the offence of maintaining the maximum penalty for the offence to which he pleaded guilty was life imprisonment. The applicant filed an application for extension of time within which to apply for leave to appeal against sentence on the 30th of March 2006, which was about six months out of time. The explanation included on the form of application…

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.

Continue reading R v Ball

Details

AGLC: R v Ball [2006] QCA 186
Case: [2006] QCA 186
Decision Date: 1 June 2006

CaseChat Overview and Summary

In the matter of R v Ball, the appellant challenged the refusal of the Queensland District Court to grant an extension of time for his appeal against conviction and sentence. The appellant had pleaded guilty to maintaining an unlawful sexual relationship with a female child under the age of 16, involving unlawful carnal knowledge. He was sentenced to seven years imprisonment, with a recommendation for community-based release after serving two years and nine months. The appellant sought an extension of time for his appeal, which was filed six months after the statutory period had expired.

The primary legal issue before the court was whether the appellant's application for an extension of time should be granted, given the late filing of the appeal. The court needed to determine whether the appeal against conviction or sentence had any prospect of success, and if so, whether the delay in filing warranted an extension of time. The court also considered whether the delay was inordinate and whether there were any exceptional circumstances justifying the extension.

The court examined the statutory provisions and case law regarding the extension of time for appeals in Queensland. It found that the appellant had not demonstrated any exceptional circumstances to justify the late filing of his appeal. The court held that the appeal had no reasonable prospects of success due to the guilty plea and the lack of any arguable grounds for appeal. The court also noted that the appellant's delay in filing the appeal was inordinate, and the reasons provided for the delay were insufficient to warrant an extension of time. Consequently, the court refused the application for an extension of time.

The court's decision was upheld, and the application for an extension of time was refused. The court amended the indictment accordingly, and the appeal was dismissed. The orders of the court were that the indictment No 1788/04 be amended as per the court's decision, and the application for an extension of time was refused.

Orders

Orders of the court

1. The Indictment No 1788/04 is amended accordingly

2. Application refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Ball [2006] QCA 186
PARTIES:	R v BALL, Matthew James (applicant)
FILE NO/S:	CA No 79 of 2006 DC No 879 of 2004 DC No 1788 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	1 June 2006
DELIVERED AT:	Brisbane
HEARING DATE:	1 June 2006
JUDGES:	de Jersey CJ, Holmes JA & Helman J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	1. The Indictment No 1788/04 is amended accordingly 2. Application refused
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant pleaded guilty to one count of maintaining an unlawful sexual relationship with a female child under 16 years of age, in the course of which he had unlawful carnal knowledge with her – where the applicant was sentenced to seven years imprisonment with a recommendation for post-prison community based release after two years and nine months – where the application was filed six 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 B [1995] QCA 636; CA No 328 of 1995, 23 October 1995 R v B [1997] QCA 213; CA No 58 of 1997, 18 June 1997 R v BAO [2004] QCA 445; CA No 314 of 2004, 22 November 2004 R v SAG [2004] QCA 286; CA No 55 of 2004, 6 August 2004
COUNSEL:	The applicant appeared on his own behalf S G Bain for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent