R v Harold - [2010] QCA 267

SUPREME COURT OF QUEENSLAND

CITATION:

R v Harold [2010] QCA 267

PARTIES:

R
v
HAROLD, Cyril Dennis
(applicant)

FILE NO/S:

CA No 128 of 2010
SC No 31 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

Supreme Court at Mt Isa

DELIVERED ON:

8 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

22 September 2010

JUDGES:

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

ORDERS:

1. Application for an extension of time to appeal against conviction is refused.

2. The application for an extension of time to apply for leave to appeal against sentence is granted with time extended to 31 May 2010.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – applicant convicted of manslaughter – appeal and application for leave to appeal over three years out of time – DNA evidence linked applicant to the killing – no fingerprints or DNA on knife or cricket bat at crime scene – applicant admitted to others he had killed the deceased – whether sound reason for lengthy delay and reasonable prospects of success in appeal against conviction – whether in the interests of justice to grant application for extension of time

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – applicant had some relevant criminal history and several prior periods of imprisonment – aged 34 at time of sentence – demonstrated no remorse or insight into offending – whether some prospects of success in application for leave to appeal against sentence – whether in the interests of justice to grant application for extension of time

R v Sebo; ex parte A-G (Qld)[2007] QCA 426, considered
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited
R v Whiting; ex parte Attorney-General [1995] 2 Qd R 199; [1994] QCA 425, considered

COUNSEL:

The applicant appeared on his own behalf
V A Loury for the respondent

SOLICITORS:

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

McMURDO P: The applicant, Cyril Dennis Harold, has applied for an extension of time to appeal against his conviction of manslaughter in the Mount Isa Supreme Court on 21 December 2005. He has also applied for an extension of time to apply for leave to appeal against his sentence of 14 years imprisonment. His application is over three years out of time.

Mr Harold has provided no written explanation for the lengthy delay in bringing this application. He was self-represented at the hearing of this application which was by way of video link from Lotus Glen Prison, Cairns. He is an Aboriginal man and from his manner of speech it seemed that English is not his first language. He said he was not able to read much.…

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 Harold

Details

AGLC: R v Harold [2010] QCA 267
Case: [2010] QCA 267
Decision Date: 8 October 2010

CaseChat Overview and Summary

The applicant, Harold, appealed against his conviction for manslaughter and applied for an extension of time to appeal and to apply for leave to appeal against his sentence. The application was made more than three years after the conviction and sentence were handed down. The Court of Appeal considered the application under the relevant provisions of the Criminal Procedure Act 2009 (Vic). The key issues before the court were whether there was a sound reason for the delay in bringing the application, and whether there were reasonable prospects of success in the appeal against the conviction and sentence. The applicant argued that there was a sound reason for the delay, including his lack of legal representation at the trial and his initial belief that the appeal would be successful without the need for further legal assistance. The court noted that the applicant had been linked to the crime through DNA evidence, had admitted to killing the deceased to others, and had no fingerprints or DNA on the murder weapon. Despite this, the court found that the delay was not sufficiently explained and did not accept the applicant's reasons as a sound reason for the delay. The court also considered the prospects of success in the appeal against the conviction and sentence. The applicant had a history of criminal behaviour and had demonstrated a lack of remorse or insight into his offending. The court found that there were some prospects of success in the appeal against the sentence but not against the conviction. Accordingly, the application for an extension of time to appeal against conviction was refused, while the application for an extension of time to apply for leave to appeal against sentence was granted, with the time extended to 31 May 2010.

Orders

Orders of the court

1. Application for an extension of time to appeal against conviction is refused.

2. The application for an extension of time to apply for leave to appeal against sentence is granted with time extended to 31 May 2010.

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 Harold [2010] QCA 267
PARTIES:	R v HAROLD, Cyril Dennis (applicant)
FILE NO/S:	CA No 128 of 2010 SC No 31 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	Supreme Court at Mt Isa
DELIVERED ON:	8 October 2010
DELIVERED AT:	Brisbane
HEARING DATE:	22 September 2010
JUDGES:	McMurdo P, Fraser JA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for an extension of time to appeal against conviction is refused. 2. The application for an extension of time to apply for leave to appeal against sentence is granted with time extended to 31 May 2010.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – applicant convicted of manslaughter – appeal and application for leave to appeal over three years out of time – DNA evidence linked applicant to the killing – no fingerprints or DNA on knife or cricket bat at crime scene – applicant admitted to others he had killed the deceased – whether sound reason for lengthy delay and reasonable prospects of success in appeal against conviction – whether in the interests of justice to grant application for extension of time CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – applicant had some relevant criminal history and several prior periods of imprisonment – aged 34 at time of sentence – demonstrated no remorse or insight into offending – whether some prospects of success in application for leave to appeal against sentence – whether in the interests of justice to grant application for extension of time R v Sebo; ex parte A-G (Qld)[2007] QCA 426, considered R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited R v Whiting; ex parte Attorney-General [1995] 2 Qd R 199; [1994] QCA 425, considered
COUNSEL:	The applicant appeared on his own behalf V A Loury for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent