R v Hamade

[2010] QCA 325

COURT OF APPEAL

HOLMES JA
CHESTERMAN JA
WHITE JA

CA No 213 of 2010
DC No 118 of 2010

THE QUEEN

SAID AHMAD HAMADE Applicant

BRISBANE

DATE 22/11/2010

JUDGMENT

...

HOLMES JA: The applicant for an extension of time for leave to appeal was convicted of one count of maintaining, one of indecent dealing, one of rape and one of unlawful carnal knowledge on 23 April 2010. On 25 June 2010, he was sentenced to nine years imprisonment.

His application for an extension of time was filed with a Notice of Appeal on 17 September 2010. His explanation for the delay is, he says, that he was told by his then counsel, who was from a different jurisdiction, that it was not necessary for him to appeal against conviction until he was sentenced and that thereafter his solicitors refused to lodge the appeal until his fees were paid.

It is difficult to assess the merits of the appeal. The ground at present is simply that the conviction was unsafe. It was an eight day trial and there is no transcript. The Crown does not oppose the application.

Given that the delay was relatively short and is largely accounted for, I would extend the time for filing of the notice of appeal to 17 September 2010 when notice was filed.

CHESTERMAN JA: I agree.

WHITE JA: I agree too.

HOLMES JA: That is the order. Time is extended accordingly.

CaseChat Overview and Summary

The case of R v Hamade involved the applicant, Said Ahmad Hamade, who had been convicted and sentenced on multiple counts of serious sexual offences. The appeal was brought before the Court of Appeal, which consisted of Holmes JA, Chesterman JA, and White JA. The primary issue for the court was whether to grant an extension of time for Hamade to file a notice of appeal against his conviction and sentence. Hamade had filed his notice of appeal on 17 September 2010, which was beyond the statutory time limit for such applications. His justification for the delay was that he had been misinformed by his previous counsel that an appeal was not necessary until after sentencing, and subsequently, his solicitors did not proceed with the appeal until his legal fees were settled.

The court considered the grounds of appeal, which were limited to the assertion that the conviction was unsafe, and the fact that there was no transcript of the eight-day trial. Despite the Crown not opposing the application for an extension of time, the court acknowledged the difficulty in assessing the merits of the appeal without the benefit of a trial transcript. However, the court recognised that the delay was relatively short and largely attributable to the circumstances provided by Hamade.

In granting the extension, the court concluded that the application for leave to appeal should be considered on its merits. Holmes JA, with the concurrence of Chesterman JA and White JA, ruled that the time for filing the notice of appeal would be extended to the date on which the notice was actually filed, 17 September 2010. This decision allowed Hamade's appeal to proceed, despite the procedural delay.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established