R v Kalliris

[2006] QCA 15

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kalliris [2006] QCA 15

PARTIES:

R
v
KALLIRIS, Constantinos
(applicant)

FILE NO/S:

CA No 253 of 2005
DC No 23 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Bowen

DELIVERED EX TEMPORE ON:

9 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2006

JUDGES:

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

ORDER:

1. Application granted
2. The time within which the notice of appeal and notice of application for leave to appeal may be given to 30 September 2005

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where applicant seeks an extension of time within which to appeal against conviction and sentence – whether application should be granted

Criminal Code 1899 (Qld), s 671

COUNSEL:

The applicant appeared on his own behalf
B G Campbell for the respondent

SOLICITORS:

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

MUIR J:  The applicant was convicted on 25 August 2005 of one count of rape and one count of indecently exposing a child to an indecent act with a circumstance of aggravation and was sentenced on 26 August 2005 to three years' imprisonment on both counts.  He seeks an extension of time within which to appeal against conviction and sentence.

The notice of application for extension of time within which to appeal, Form 26, and the notice of appeal against conviction and application for leave to appeal against sentence, Form 28, were both filed on 30 September 2005. The notice of appeal was thus only a few days over time, see s 671 Criminal Code 1899 (Qld).

The delay in lodging the notice of appeal is explained in these terms on Form 26.  "I am late in lodging this application I spok [sic] to the public solicitor on 13 September '05 and the application came today 21/9/05."  A similar explanation is provided at the foot of Form 28.  The forms, 26 and 28, are both dated 21 September 2005.  It would therefore seem that the applicant was concerned to appeal within time but encountered difficulties in obtaining the requisite forms.  The applications are opposed on the grounds that the applicant's grounds of appeal are lacking in substance.  The main thrust of the grounds is to challenge the competence of the applicant's legal representation on the trial but reliance is placed also on there being inadequate time to properly instruct newly briefed counsel.

The complaints in the material accompanying the notices may be summarised as follows:

1. Counsel failed to make appropriate use of the inconsistencies between the complainant's evidence-in-chief and her evidence on cross-examination;

2. No evidence was adduced, in disregard of the applicant's instructions, that at the time of the alleged acts he had the juice of chillies embedded in the skin on his hands, which would have been painful to the complainant's genitals had the applicant touched her as alleged;

3. One of the jurors was the manager of a business competitor of the applicant and as such not able to act impartially;

4. The applicant's counsel contravened the applicant's instructions by not calling two police officers to give evidence;

5. A change in the applicant's legal team immediately before the hearing meant that he had only one hour within which to instruct them before the hearing;

6. The complaints may have arisen through the complainant's confusing the applicant with a male friend of her mother;

7. The case may have been concocted to obtain revenge for the failure of the applicant to permit the complainant's mother to grow marijuana on his property; and

8. The allegations are inconsistent with the applicant's evidence that he repeatedly told the complainant's mother that the complainant had to be supervised whilst at his property because of various dangers which existed there.

It is not possible on the material available on this application to determine whether, as is submitted on behalf of the respondent by Mr Campbell of counsel, the matters raised by the applicant are either irrelevant or were raised at the trial nor is it possible to assess with any degree of confidence the validity of the complaints in relation to lack of preparation and competence in the conduct of the defence.

In my view, having regard to the minimal extent of the delay and the explanation for it, the application should be granted.  I would extend the time within which notice of appeal and notice of application for leave to appeal may be given to 30 September 2005.

THE PRESIDENT:  I agree.
McPHERSON JA:  I also agree.

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