R v Kaye

[2010] QCA 11

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kaye [2010] QCA 11

PARTIES:

R
v
KAYE, Christian William Thomas
(applicant/appellant)

FILE NO/S:

CA No 302 of 2009
DC No 1 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Maryborough

DELIVERED EX TEMPORE ON:

10 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2010

JUDGES:

McMurdo P and Muir and Fraser JJA
Separate reasons for judgment of each member of the Court each concurring as to the order made

ORDER:

Application to extend the time within which to appeal against convictions is granted
The time for filing the applicant’s notice of appeal against convictions is extended to 2 December 2009

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant was convicted of four offences of rape and was sentenced to eight years imprisonment to be served cumulatively upon an existing term of imprisonment– where the applicant was five weeks out of time and applied for an extension of time within which to appeal his convictions – where the applicant was illiterate – 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, cited
R v Witsen [2008] QCA 31, cited

COUNSEL:

The appellant appeared on his own behalf
M B Lehane for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondents

FRASER JA:  On 1 December 2009 the applicant filed an application for extension of the time within which to appeal and a notice of appeal against his conviction on 22 September 2009 of four offences of rape. The applicant was sentenced to eight years imprisonment with a declaration that the offences were serious violent offences.  That imprisonment must be served cumulatively upon a term of imprisonment that the applicant was already serving.

In considering whether to grant the necessary extension of time, the Court considers whether there is good reason to account for the delay in appealing and whether it is in the interests of justice to grant the extension:  R v Tait [1999] 2 Qd R 667. The Court may make an assessment of the viability of the appeal if that is possible upon the materials available and the Court may extend time even in the absence of a satisfactory explanation for the delay where refusal to do so would result in a miscarriage of justice: see R v GV [2006] QCA 394 at [3] and R v Witsen [2008] QCA 31 at [3].

The applicant’s proposed appeal is some five weeks out of time.  By way of explanation for that delay he refers to periods of time during which he was held in different watch houses and during which he had no contact with any legal representative.  He also asserts that there were failures within…