R v Cain

[2009] QCA 365

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cain [2009] QCA 365

PARTIES:

R
v
CAIN, Ryan Thomas
(applicant)

FILE NO/S:

CA No 156 of 2008
DC No 35 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)
Sentence Application

ORIGINATING COURT:

District Court at Mackay

DELIVERED EX TEMPORE ON:

27 November 2009

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2009

JUDGES:

Holmes and Muir JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for an extension of time within which to appeal against conviction is granted.  Time is extended for the filing of the notice of appeal against conviction to Friday, 4 December 2009.

2.   The hearing of the application for leave to appeal against sentence is adjourned to the date fixed for the hearing of the appeal against conviction.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where applicant convicted by jury of two counts of rape and pleaded guilty to one count of burglary – where concerns arose after trial about applicant’s mental fitness for trial – where psychiatrist thought it more likely than not that applicant unfit for trial – whether extension should be granted

Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41, cited
R v Presser [1958] VR 45, cited
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited

COUNSEL:

S J Hamlyn-Harris for the applicant
M B Lehane for the respondent

SOLICITORS:

Fisher Dore Lawyers for applicant
Director of Public Prosecutions (Qld) for the respondent

HOLMES JA:  The applicant seeks an extension of time within which to appeal against his conviction on 18 March 2008, of three counts of rape and one count of burglary.  He was convicted of the rape counts after a trial, but pleaded guilty to the count of burglary.  The basis for his application is to be found in the reports of Dr Beech, psychiatrist, who interviewed the applicant in custody on 30 December 2008.  It seems concerns emerged in relation to the applicant’s mental state during conferences with his counsel in relation to a sentence appeal, and that was the impetus for Dr Beech’s involvement.

At the time of his first report, Dr Beech had available to him the applicant’s instructions to his trial lawyers, a facsimile the applicant had sent in October 2008 concerning his appeal instructions, and notes of conferences with him in October and November 2008.  In his report, Dr Beech gave the opinion that the applicant suffered from paranoid schizophrenia with grandiose and persecutory delusions.  He raised the possibility that the applicant might not have been fit for trial if he were at the time suffering from psychosis as a result of his schizophrenia.

Dr Beech was provided with further material, consisting of a letter from the applicant, received on 27 May 2009, an affidavit…