R v Dizo - [2008] QCA 89

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dizo [2008] QCA 89

PARTIES:

R
v
DIZO, Emil
(applicant)

FILE NO/S:

CA No 305 of 2007
DC No 1153 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

18 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

14 April 2008

JUDGES:

Keane and Fraser JJA and White J
Judgment of the Court

ORDER:

Application for extension of time dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant claims a prior lack of knowledge of the right to appeal – where applicant's explanation for delay is contradicted by documentary evidence upon which he seeks to rely – whether there was an error in the sentencing process so as to justify an extension of time – whether an extension of time in which to appeal against sentence should be granted

R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied

R v Tootoo (2000) 115 A Crim R 90; [2000] QCA 312, cited

COUNSEL:

The applicant appeared on his own behalf
M J Copley for the respondent

SOLICITORS:

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

THE COURT: On 19 September 2007 the applicant was convicted after a trial of one count of common assault. He was sentenced to three months imprisonment, wholly suspended for an operational period of 12 months. He was also disqualified absolutely from holding or obtaining a driver's licence.

On 13 November 2007 the applicant applied for an extension of time within which to seek leave to appeal against his sentence. On the hearing of the application, it became apparent that the applicant's principal concern related to his conviction.

The applicant does not have the benefit of legal representation, and he has some difficulty in speaking English. That having been said, it was apparent on the hearing of the application that the applicant is well able to understand and make himself understood in English. He asserted that he was wrongly convicted. He denied striking the complainant.

In an attempt to explain the delay in seeking to appeal, the applicant stated in his application that he did not know that he could seek to appeal against his sentence until 10 November 2007 when he returned home after visiting sick relatives in Europe to find a letter dated 15 October 2007 from Legal Aid Queensland advising him of his rights in relation to appeal.

The applicant seeks to support his application by reference to the letter of

15 October 2007 from Legal Aid Queensland. The terms of that letter are destructive of the applicant's attempt to explain his delay. The letter contains the following statement:

"Counsel does not recommend that you appeal against your conviction and sentence, including the disqualification of your driver's licence. We note that we advised you of this when…

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 Dizo

Details

AGLC: R v Dizo [2008] QCA 89
Case: [2008] QCA 89
Decision Date: 18 April 2008

CaseChat Overview and Summary

The case of R v Dizo involved an appeal against the denial of an extension of time for the appellant to appeal his sentence. The appellant argued that he was unaware of his right to appeal and that his explanation for the delay was contradicted by documentary evidence. The matter was heard in the Queensland Court of Appeal. The primary legal issue before the court was whether there was an error in the sentencing process that would justify an extension of time for the appellant to lodge his appeal. Additionally, the court had to determine whether an extension of time should be granted based on the appellant's claimed lack of knowledge and the contradictory documentary evidence.

The court examined the appellant's claim of unawareness of his right to appeal and the documentary evidence he sought to rely upon. The court found that the appellant's explanation for the delay was contradicted by the very evidence he relied on to support his case. The court was of the view that the appellant's claim was not credible given the documentary evidence. Furthermore, the court held that the appellant had failed to establish that any error in the sentencing process warranted an extension of time. Consequently, the court dismissed the application for an extension of time, affirming that there were no grounds to grant such an extension based on the appellant's submissions.

Orders

Orders of the court

Application for extension of time dismissed

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

Full text does not contain this section.

CITATION:	R v Dizo [2008] QCA 89
PARTIES:	R v DIZO, Emil (applicant)
FILE NO/S:	CA No 305 of 2007 DC No 1153 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	18 April 2008
DELIVERED AT:	Brisbane
HEARING DATE:	14 April 2008
JUDGES:	Keane and Fraser JJA and White J Judgment of the Court
ORDER:	Application for extension of time dismissed
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant claims a prior lack of knowledge of the right to appeal – where applicant's explanation for delay is contradicted by documentary evidence upon which he seeks to rely – whether there was an error in the sentencing process so as to justify an extension of time – whether an extension of time in which to appeal against sentence should be granted R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied R v Tootoo (2000) 115 A Crim R 90; [2000] QCA 312, cited
COUNSEL:	The applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent