R v Kalotai

COURT OF APPEAL [1992] QCA 328

MACROSSAN CJ McPHERSON JA AMBROSE J

CA No 203 of 1992

THE QUEEN

SHAWN VINCENT KALOTAI	Applicant
BRISBANE ..DATE 17/08/92
JUDGMENT

170892
THE CHIEF JUSTICE: The applicant applies for leave to appeal against his conviction and he
does so about two months out of time. He was represented at the trial and found guilty of assault
occasioning bodily harm while in company and also of assault occasioning bodily harm whilst in
company and whilst armed. He applied for leave to appeal against the effective sentence of three
years which was imposed upon him, and on 2 June this year the Court of Appeal refused him
leave to appeal against sentence. Then a little over a month later, he has applied for extension of
time so that he can appeal against his conviction. Having been represented both at the trial and
on the first application for leave to appeal, he would obviously have difficulty with the present
application. On the face of things it seems fair to say that the Crown case against him looks as
though it was strong but we do not have to investigate that matter further.

The question is whether he has shown special circumstances for granting leave. In my opinion, none is shown. The reference to change of intention will not make it out and the suggestions which he makes of confusion concerning his right to appeal against conviction at the same time as or before the sentence appeal and the failure of legal advisers to follow instructions or deal with the matter correctly are not convincing and are not satisfactorily established. I think there are no special circumstances shown and the application has to be refused.

McPHERSON JA: I agree.

AMBROSE J: I agree.

THE CHIEF JUSTICE: The application is refused.

- - - - -

CaseChat Overview and Summary

Shawn Vincent Kalotai applied for leave to appeal against his conviction, which was made two months out of time. Kalotai was found guilty of assault occasioning bodily harm while in company and also of assault occasioning bodily harm while in company and armed. He had previously applied for leave to appeal against his sentence, which was refused on 2 June. Over a month later, he applied for an extension of time to appeal against his conviction. Kalotai was represented both at trial and in the first appeal application. The court considered whether special circumstances existed to grant leave for the appeal against conviction.

The legal issue before the court was whether special circumstances existed that would warrant an extension of time for Kalotai to appeal his conviction. The applicant cited a change of intention and confusion regarding his right to appeal against conviction simultaneously with or before the sentence appeal as reasons for the delay. The court needed to determine if these reasons were convincing and satisfactorily established. The Crown's case against Kalotai was considered strong, but the focus was on the timeliness of the application and the existence of special circumstances.

The court found that Kalotai had not shown special circumstances for granting leave to appeal against his conviction. The reference to a change of intention did not constitute special circumstances, and the suggestions of confusion about the right to appeal and the alleged failure of legal advisers were not convincing or satisfactorily established. The court concluded that no special circumstances were demonstrated, and the application was refused. The judges unanimously agreed on this decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established