R v Davidson

[2001] QCA 126

[2001] QCA 126

COURT OF APPEAL

McMURDO P
WHITE J
HOLMES J

CA No 16 of 2001

THE QUEEN

v.

D    (Applicant)

BRISBANE

..DATE 04/04/2001

JUDGMENT

THE PRESIDENT:  This is an application for an extension of time within which to appeal against both conviction and sentence.  The applicant is self-represented and has an indigenous background.  He was convicted of three counts of indecent treatment of a child under 12 under his care and one count of common assault on 15 November 2000. 

He was sentenced that day to two years' imprisonment for the indecent dealing charges and six months concurrent for the assault.  His notice of appeal against conviction was received in the Court of Appeal on 16 January 2001, about one month late, and his application for leave to appeal against sentence was received on 30 January 2001, about six weeks late.

In the material placed before the Court he has given no explanation for the delay in filing his application.  In his submissions today he has said that he sent the original appeal from the Arthur Gorrie Correctional Centre within time on about 12 December, but it was sent back by the Appeal Court because it was not properly filled out.  There is some support for that in the appeal form itself, however this Court apparently has no record of it.

The case against the applicant was not weak. The applicant has raised a number of issues, none of which in themselves appear to have a great deal of merit. There are, however, some matters that emerge in the Judge's summing-up, particularly on pages 72 and 81, that suggest that the jury may have been confused as to the onus of proof. These matters are sufficient to persuade me that it is in the interests of justice to grant the extension of time to appeal against conviction. See R v. Tait [1999] 2 QdR 667.

As to the application for an extension of time within which to apply for leave to appeal against sentence, the applicant has a number of previous convictions for offences of dishonesty and minor violence.  These offences occurred in circumstances where he was in a position of trust.  The complainant girl was only seven years old and one of the offences involved forcing his penis into her mouth.  His prospects of demonstrating the sentence was manifestly excessive are not, in my view, promising and do not suggest that it is in the interests of justice to grant the extension. 

In the end the delay has only been some four to six weeks.  The applicant has given some explanation for the delay and there are, as I have said, matters in the summing-up which persuade me it is in the interests of justice to grant the extension as to the appeal against conviction.  I would extend the time for appealing against conviction to 5 April 2001.  I would refuse the extension of time for leave to appeal against sentence.

WHITE J:  I agree.

HOLMES J:  I agree.
THE PRESIDENT:  The orders are as I have given.

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