R v Kelly Summary | CaseChat AU

[2006] QCA 6

COURT OF APPEAL

McMURDO P
JERRARD JA
KEANE JA

CA No 175 of 2005

THE QUEEN

ROBIN WILLIAM KELLY Applicant/Appellant

BRISBANE

..DATE 01/02/2006

JUDGMENT

THE PRESIDENT: The appellant was convicted after a four day trial of killing a dog. He was sentenced to four months' imprisonment suspended after one month of five years and fined $5,000 in default, two months' imprisonment with six months to pay.

He appeals against his conviction and applies for leave to appeal against his sentence. He also seeks leave to adduce evidence not called at his trial in this appeal. At the trial he was legally represented but he now represents himself in this appeal. He applies for an adjournment because he says he has only recently discovered new evidence which he seeks to adduce and he has not had an adequate opportunity to prepare his case since he has been self representing and that he is not presently ready for hearing.

He says that he will, if the adjournment is granted, apply for legal aid and that in any case he has money "off-shore" which will become available to him in early March so that he is confident of having legal representation when the matter is next listed for hearing. He also says that he will, if given this extra time, be in a position to prepare his own submissions and follow the directions of the Deputy Registrar (Appeals) in preparing the matter so that, whether or not he has legal representation when the matter is next listed, he will be in a position to proceed when the appeal is next listed.

The matter was originally listed for hearing before this Court on 25 October 2005. It was delisted at the request of
Mr Kelly's then solicitors because he had been involved in a traffic accident and also because he had not provided them with funds for the appeal. On 23 November 2005 his then solicitors were advised that the matter was delisted with a new hearing date of 1 February 2006. On 4 January 2006 his then solicitors advised the Court of Appeal Registry that the appellant had withdrawn his instructions to them. The Appeal Record Book was then forwarded directly to the appellant and he was again advised of today's hearing date. He acknowledged receipt of the Appeal Record Book on 6 January 2006. He immediately requested an adjournment from the Registry but that was not granted.

Whilst in my view the appellant has had ample time to prepare his appeal I am finally persuaded that this application for an adjournment should be granted. There are some arguable matters raised and it may be that the Court will receive assistance in respect of them if Mr Kelly is legally represented. He has served the one month period of imprisonment. Although he has not yet paid his fine he has indicated that he intends to apply to the District Court for an extension of time to pay until after the hearing of this appeal.

The Crown, whilst not consenting to the adjournment, does not strongly oppose it and can point to no prejudice that it will suffer.
In all the circumstances, I am finally persuaded that the adjournment should be granted. Mr Kelly must understand, however, that the matter will be expected to proceed when it is next listed for hearing and no further applications for an adjournment will be granted unless there are some quite exceptional reasons for that.

JERRARD JA: I agree.

KEANE JA: I agree.

THE PRESIDENT: The matter is adjourned to a date to be fixed. The appellant is to follow all the directions given for the preparation of this matter by the Deputy Registrar (Appeals).

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In the matter of R v Kelly, the appellant, Robin William Kelly, appealed against his conviction and sentence for the killing of a dog, as well as applying for leave to adduce new evidence not presented at his trial. The case was heard in the Queensland Court of Appeal. The appellant had been represented by legal counsel during his trial but chose to represent himself during the appeal process. He requested an adjournment to allow time for preparation and to seek legal aid, as well as to present new evidence that he claimed to have discovered recently.

The legal issues before the court included whether the appellant's application for an adjournment should be granted, given that he had recently become self-represented and claimed to have discovered new evidence. The court also needed to determine if the appellant's reasons for the adjournment were sufficient and if there was any prejudice to the Crown if the adjournment was granted. Additionally, the court had to consider whether the appellant should be permitted to adduce new evidence that had not been presented at trial.

The Court of Appeal, presided over by McMurdo P, found that the appellant had had ample time to prepare his appeal but was persuaded to grant the adjournment on the basis that there were arguable matters raised in the appeal and it was possible that the court would benefit from the appellant being legally represented. The court also considered that the appellant had served part of his sentence and had indicated his intention to seek an extension to pay his fine, and that the Crown did not strongly oppose the adjournment and could not point to any prejudice it would suffer. The court concluded that the matter should proceed when next listed, but no further adjournments would be granted without exceptional circumstances.

The final orders of the court were to adjourn the matter to a date to be fixed, with the appellant to follow all directions given for the preparation of the matter by the Deputy Registrar (Appeals).

R v Kelly

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