R v. Clewes

[2007] QCA 17

SUPREME COURT OF QUEENSLAND

CITATION:	R v Clewes [2007] QCA 17
PARTIES:	R v CLEWES, Terry (applicant)
FILE NO/S:	CA No 282 of 2006 DC No 86 of 2005 DC No 181of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	District Court at Mt Isa
DELIVERED EX TEMPORE ON:	1 February 2007
DELIVERED AT:	Brisbane
HEARING DATE:	1 February 2007
JUDGES:	Williams and Keane JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time within which to appeal is refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – Procedure – Application for extension of time sentence and conviction – where applicant pleaded guilty at first instance to three counts of assault occasioning bodily harm – where delay of 12 months in seeking to appeal – where there was a failure to satisfactorily explain delay – where absence of reasonable prospects of success – whether application should be granted
COUNSEL:	The applicant on his own behalf M J Copely for the respondent
SOLICITORS:	The applicant on his own behalf Commonwealth Director of Public Prosecutions for the respondent.

WILLIAMS JA:  Mr Clewes, the Court is in a position to give its decision and I will give some reasons now.

On the 3rd of October 2005 the applicant pleaded guilty in the District Court at Mt Isa to three counts of assault occasioning bodily harm.  In each case the complainant was his wife and the offences were alleged to have occurred on 28 July 2004, 11 December 2004 and 12 December 2004.  Effectively he was sentenced to eight months' imprisonment wholly suspended for a period of two years.

On 4 October 2006 he filed an application for an extension of time within which to appeal and the notice of appeal lodged the same date indicates he wishes to appeal against both conviction and sentence.  Each of those documents contains an assertion that he considered he was not guilty of the charges.

The applicant has lodged with the Court a lengthy handwritten document dealing extensively with his relationship with the complainant and the difficulties he has had in obtaining access to their child.  In it he indicates that he pleaded guilty on the advice of his solicitor because the prosecution was prepared to drop a charge of deprivation of liberty if he pleaded to the assaults.

It appears that shortly after the convictions he became aware that his licence to drive a taxi was being withdrawn.  He claims he would not have pleaded guilty if he was aware that his licence was at risk.

Mr Clewes has appeared by telephone on his own behalf on this application.  In the course of oral submissions today he submitted that he did not know the time limit for lodging an appeal and did not know he should ask his solicitor about that matter.  He also asserted that the arrangement between his solicitor and the prosecution pursuant to which he pleaded guilty involved the non-recording of a conviction.

A perusal of the transcript of the sentencing procedure indicates that one of the options put forward by the prosecution was a wholly suspended sentence and the lawyer for Mr Clewes contended for probation without a conviction.

...

WILLIAMS JA:  The question of recording a conviction was a matter within the discretion of the judge.

In my view, neither the written document nor the oral submissions made this morning contain any acceptable or reasonable explanation for the lengthy delay between 3 October 2005 and 4 October 2006 in seeking to overturn the conviction.  Neither the written material nor the oral submissions specifically deal with the circumstances relied on by the prosecution as constituting the three assaults to which he pleaded guilty.

An applicant wishing to overturn pleas of guilty has a difficult onus to discharge.  Regard must be had to the decision of the High Court in Meissner v The Queen (1995) 184 CLR 132 especially at 141. The material placed before the Court by the applicant does not establish an arguable case for permitting the withdrawal of the plea of guilty if an extension of time was granted. But also as previously indicated the applicant has not established reasonable excuse for the lengthy delay in seeking to appeal.

Because the applicant has not satisfactorily explained the delay and has not demonstrated reasonable prospects of success if an extension of time was granted, the application for an extension of time within which to appeal should be refused.

KEANE JA:  I agree.

MULLINS J:  I agree.

WILLIAMS JA:  The order of the Court is that the application for extension of time within which to appeal is refused.

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