R v Barclay - [2018] QCA 175

[2018] QCA 175

COURT OF APPEAL

SOFRONOFF P
HENRY J
BROWN J

CA No 57 of 2018
DC No 9 of 2015

THE QUEEN

BARCLAY, Roy Reginald Applicant

BRISBANE

THURSDAY, 2 AUGUST 2018

JUDGMENT

HENRY J: The applicant pleaded guilty to the following offences and received the following concurrent sentences of imprisonment:
(1) assault occasioning bodily harm, 12 months imprisonment;
(2) wilful damage, six months imprisonment;
(3) entry of the vehicle with intent in company at night, three years imprisonment;
(4) malicious act with intent, 10 years imprisonment;
(5) burglary and stealing, four years imprisonment.

A period of 323 days presentence custody was declared taken to be imprisonment already served under the sentences. The conviction for malicious act with intent was declared to be a conviction of a serious violent offence with the consequence the applicant must serve 80 per cent of his 10 years imprisonment.

The sentences was imposed in the Mount Isa District Court on 26 February 2015. Over a year later, on 2 March 2016, a notice of application for extension of time within which to give notice of an application for leave to appeal sentence was filed on the applicant’s behalf.

On 17 August 2016, a notice of abandonment of that application was filed.

On 19 March 2018, over three years after the original sentence, a further notice of application for extension of time within which to give notice of application for leave to appeal the sentence was filed on the applicant’s behalf. It is the application now before the Court.

Rule 69 of the Criminal Practice Rules 1999 (Qld) provides that when a notice of abandonment of an application for leave to appeal or extension of time within which to appeal is given to the Registrar, the “application is taken to be refused by the Court”. However, r 69(4) provides the Court may set aside the abandonment and reinstate the application “if the Court considers it necessary in the interests of justice”.

It follows that the applicant’s application for an extension of time within which to give notice of an application for leave to appeal sentence is deemed to have previously been refused by the Court. On one view, the application should, therefore, be set aside and the applicant should be required to formally apply to set aside the abandonment and reinstate the original application. However, in circumstances where there is an absence of any merit to the applicant’s position, the preferable course in the interest of efficiency and finality is to treat the present application as an application to set aside the abandonment and reinstate the original application.

The applicant has advanced no evidence providing any satisfactory explanation why his initial application was filed over a year out of time or why it was abandoned or why there has been another further delay before seeking to re-enliven the matter. Such explanations as have been proffered relate to his denial of legal funding and the disadvantages he is under in acting for himself.

The…

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 Barclay

Details

AGLC: R v Barclay [2018] QCA 175
Case: [2018] QCA 175
Decision Date: 2 AUGUST 2018

CaseChat Overview and Summary

The applicant, Roy Reginald Barclay, applied to the Court of Appeal to appeal his sentences imposed by the Mount Isa District Court. The sentences, which were imposed on 26 February 2015, were for the offences of assault occasioning bodily harm, wilful damage, entry of a vehicle with intent in company at night, malicious act with intent and burglary and stealing. The applicant applied for an extension of time to give notice of an application for leave to appeal the sentence, but subsequently abandoned the application. The applicant then filed a further notice of application for extension of time within which to give notice of an application for leave to appeal the sentence. The Court of Appeal had to decide whether the applicant's application for an extension of time to give notice of an application for leave to appeal the sentence was deemed to have been refused by the Court, and if so, whether it should be set aside and the applicant required to formally apply to set aside the abandonment and reinstate the original application.

The Court considered whether the application for an extension of time to give notice of an application for leave to appeal the sentence was deemed to have been refused by the Court. The Court found that it followed that the applicant’s application for an extension of time to give notice of an application for leave to appeal sentence was deemed to have previously been refused by the Court. The Court also considered whether the application should be set aside and the applicant should be required to formally apply to set aside the abandonment and reinstate the original application. The Court found that in circumstances where there was an absence of any merit to the applicant’s position, the preferable course in the interest of efficiency and finality was to treat the present application as an application to set aside the abandonment and reinstate the original application. The Court found that the applicant had advanced no evidence providing any satisfactory explanation why his initial application was filed over a year out of time or why it was abandoned or why there had been another further delay before seeking to re-enliven the matter.

The Court of Appeal found that the application for an extension of time to give notice of an application for leave to appeal the sentence was deemed to have been refused by the Court. The Court found that whether approaching the matter as an assessment of whether it is in the interests of justice to allow the application to be reinstated or as an assessment of the application’s underlying merit, the application must fail. The Court found that the application was without merit and dismissed the application. The Court ordered that the application be dismissed.

Orders