R v Foy - [2004] QCA 86

SUPREME COURT OF QUEENSLAND

CITATION:

R v Foy [2004] QCA 86

PARTIES:

R
v
FOY, Mark Anthony
(applicant)

FILE NO/S:

CA No 375 of 2003
DC No 62 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

23 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2004

JUDGES:

Davies and Williams JJA and Philippides 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 apply for leave to appeal against conviction dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - TIME FOR APPEAL - EXTENSION OF TIME - GENERAL PRINCIPLES AS TO GRANT OR REFUSAL - where applicant sought extension of time in which to appeal his conviction - where applicant entered guilty pleas for offences of indecency against children - where applicant alleges that his barrister forced him to change his plea to guilty prior to trial - whether extension of time should be granted

Penalties and Sentences Act 1992 (Qld), s 188

Meissner v R (1995) 184 CLR 132, cited

COUNSEL:

Applicant appeared on his own behalf
M J Copley for respondent

SOLICITORS:

Applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for respondent

DAVIES JA: The applicant seeks an extension of time within which to appeal against his conviction entered after a plea of guilty on 22 January 2001 for 12 offences of indecent treatment of a child with a circumstance of aggravation and one of indecent treatment of a child. The offences occurred in October 1999 and February 2000.

After a full hand up committal the applicant pleaded guilty to these offences which involved indecently dealing with a total of nine children. He encountered the children in parks. They were apparently unknown to him before then.

The applicant was sentenced in the District Court on 23 January 2001 to three and a half years imprisonment. However on 31 May 2001 this Court allowed an appeal against that sentence by the Attorney-General, increasing the applicant's term of imprisonment to one of four and a half years.

The full and unsavoury circumstances on which the plea of guilty was based are set out in the judgment of Justice Atkinson in this Court on that occasion. In increasing that sentence this Court thought that the applicant had no real prospects of rehabilitation. But the sentence imposed by this Court was based on the fact that the sentence imposed in the District Court was outside the range of sentences imposed for similar offences.

In that appeal the applicant was represented by Mr Chowdhury of counsel instructed by Legal Aid. There was apparently no suggestion at that stage from the applicant that he wished his plea of guilty to be set aside on the grounds which he now seeks to argue.

Some time after that decision was given the applicant filed an…

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 Foy

Details

AGLC: R v Foy [2004] QCA 86
Case: [2004] QCA 86
Decision Date: 23 March 2004

CaseChat Overview and Summary

The case of R v Foy involved the appellant who sought an extension of time to appeal his conviction for offences of indecency against children. The appellant had entered pleas of guilty to the charges but claimed that his decision was coerced by his legal representative who allegedly forced him to change his plea prior to trial. The application for an extension of time was heard in the Queensland Court of Appeal.

The court was required to determine whether the extension of time should be granted in light of the appellant's allegations. The primary consideration was whether the appellant had established a compelling reason for the delay in seeking the extension, and if the delay would result in substantial injustice. The court examined the principles for granting or refusing an extension of time, including the appellant's conduct, the nature of the offence, and the impact of the delay on the administration of justice.

In assessing the application, the court found that the appellant's allegations did not constitute a sufficient ground for an extension of time. The court held that the appellant's claims were speculative and lacked substantiation. Additionally, the appellant had failed to demonstrate any prejudice that would result from the delay in seeking the extension. The court concluded that the application for an extension of time should be dismissed.

The Queensland Court of Appeal dismissed the application for an extension of time within which to apply for leave to appeal against the conviction. The court found that the appellant had not provided a compelling reason for the delay in seeking the extension and that the delay would not result in substantial injustice.

Orders

Orders of the court

Application for extension of time within which to apply for leave to appeal against conviction 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

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CITATION:	R v Foy [2004] QCA 86
PARTIES:	R v FOY, Mark Anthony (applicant)
FILE NO/S:	CA No 375 of 2003 DC No 62 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	23 March 2004
DELIVERED AT:	Brisbane
HEARING DATE:	23 March 2004
JUDGES:	Davies and Williams JJA and Philippides 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 apply for leave to appeal against conviction dismissed
CATCHWORDS:	APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - TIME FOR APPEAL - EXTENSION OF TIME - GENERAL PRINCIPLES AS TO GRANT OR REFUSAL - where applicant sought extension of time in which to appeal his conviction - where applicant entered guilty pleas for offences of indecency against children - where applicant alleges that his barrister forced him to change his plea to guilty prior to trial - whether extension of time should be granted Penalties and Sentences Act 1992 (Qld), s 188 Meissner v R (1995) 184 CLR 132, cited
COUNSEL:	Applicant appeared on his own behalf M J Copley for respondent
SOLICITORS:	Applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for respondent