R v Gilbey - [2010] QCA 4

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gilbey [2010] QCA 4

PARTIES:

R
v
GILBEY, Colin Les
(applicant)

FILE NO:

CA No 294 of 2009
SC No 1242 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED EX TEMPORE ON:

3 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2010

JUDGES:

McMurdo P, Fraser JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:

1. The application for leave to extend the time within which to appeal against the conviction is granted

2. The time for filing the applicant’s notice of appeal is extended to 26 November 2009

CATCHWORDS:

APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED – where there was only a brief period of delay in lodging the notice of appeal against conviction – where applicant experienced difficulties obtaining legal advice because of the conditions of his imprisonment – where applicant convicted of possession of the dangerous drug methylamphetamine with a circumstance of aggravation – where applicant wishes to appeal on the basis the evidence did not support a conviction – where prospects of appeal do not appear to be strong – whether there is good reason to account for the delay in lodging a notice of appeal – whether the interests of justice warrant granting an extension

R v GV[2006] QCA 394, cited
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, followed
R v Witsen [2008] QCA 31, cited

COUNSEL:

The applicant appeared on his own behalf
G J Cummings for the respondent

SOLICITORS:

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

THE PRESIDENT: Justice Douglas will deliver his reasons first.

DOUGLAS J: This is an application for an extension of time within which to lodge an appeal against conviction only.

The applicant was convicted of possession of the dangerous drug methylamphetamine with a circumstance of aggravation on 13 October 2009. He was sentenced on that date to 15 months' imprisonment. He filed his notice of appeal on 26 November 2009 almost two weeks out of time.

The 15 months' imprisonment to which he was sentenced was to be served cumulatively upon the unserved 16 month period of previously suspended imprisonment.

This application was filed on 27 January 2010. In it, the applicant seeks to explain his delay in lodging the notice of appeal by saying that he was sentenced to a term of imprisonment immediately after his conviction and the hearing of submissions about the appropriate sentence. He said that resulted in his experiencing difficulties in obtaining legal advice and providing instructions to his solicitor and barrister because of the conditions of his imprisonment. He has not descended into detail in explaining what problems he faced, but there is nothing to contradict what he says.

The applicant's conviction was based…

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 Gilbey

Details

AGLC: R v Gilbey [2010] QCA 4
Case: [2010] QCA 4
Decision Date: 3 February 2010

CaseChat Overview and Summary

The case of R v Gilbey involved the appellant, who was convicted of possessing the dangerous drug methylamphetamine under section 4 of the Drugs Misuse Act 1986 (Qld) with a circumstance of aggravation. The appellant sought an extension of time to lodge a notice of appeal against his conviction, arguing that the delay was due to difficulties in obtaining legal advice while imprisoned under certain conditions. The appeal was heard in the Queensland Court of Appeal.

The primary legal issue before the court was whether there was sufficient reason to grant an extension of time for the appellant to lodge his notice of appeal, despite the brief period of delay. The court also considered whether the prospects of the appeal were strong and if the interests of justice warranted granting the extension. The appellant contended that the evidence did not support his conviction, although the court noted that the prospects of appeal did not appear to be strong.

The court acknowledged the appellant's difficulty in obtaining legal advice due to his imprisonment conditions and determined that there was good reason to account for the delay in lodging the notice of appeal. The court also considered the interests of justice, which included the need for finality in legal proceedings and the importance of ensuring that appeals are determined on their merits. Ultimately, the court found that the interests of justice warranted granting the extension, and thus, the application for leave to extend the time within which to appeal against the conviction was granted.

The court extended the time for the appellant to file his notice of appeal to 26 November 2009. This decision allowed the appellant to proceed with his appeal, despite the initial delay, by providing him with the necessary extension to obtain legal advice and prepare his case.

Orders

Orders of the court

1. The application for leave to extend the time within which to appeal against the conviction is granted

2. The time for filing the applicant’s notice of appeal is extended to 26 November 2009

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Gilbey [2010] QCA 4
PARTIES:	R v GILBEY, Colin Les (applicant)
FILE NO:	CA No 294 of 2009 SC No 1242 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED EX TEMPORE ON:	3 February 2010
DELIVERED AT:	Brisbane
HEARING DATE:	3 February 2010
JUDGES:	McMurdo P, Fraser JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER:	1. The application for leave to extend the time within which to appeal against the conviction is granted 2. The time for filing the applicant’s notice of appeal is extended to 26 November 2009
CATCHWORDS:	APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED – where there was only a brief period of delay in lodging the notice of appeal against conviction – where applicant experienced difficulties obtaining legal advice because of the conditions of his imprisonment – where applicant convicted of possession of the dangerous drug methylamphetamine with a circumstance of aggravation – where applicant wishes to appeal on the basis the evidence did not support a conviction – where prospects of appeal do not appear to be strong – whether there is good reason to account for the delay in lodging a notice of appeal – whether the interests of justice warrant granting an extension R v GV[2006] QCA 394, cited R v Tait [1999] 2 Qd R 667; [1998] QCA 304, followed R v Witsen [2008] QCA 31, cited
COUNSEL:	The applicant appeared on his own behalf G J Cummings for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent