R v Lea

[2005] QCA 401

SUPREME COURT OF QUEENSLAND

CITATION:	R v Lea [2005] QCA 401
PARTIES:	R v LEA, Adrian Myles (applicant)
FILE NO/S:	CA No 197 of 2005 DC No 36 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Bowen
DELIVERED EX TEMPORE ON:	3 November 2005
DELIVERED AT:	Brisbane
HEARING DATE:	3 November 2005
JUDGES:	Williams JA, Muir and Atkinson JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time to appeal against conviction refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – applicant convicted after trial of rape – application filed nine months after conviction – whether there was a reasonable explanation for the delayed application – whether the applicant demonstrated reasonable prospects of success on the hearing of an appeal
COUNSEL:	Applicant appeared on his own behalf P F Rutledge appeared for the respondent
SOLICITORS:	Applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the Crown

WILLIAMS JA:  The applicant was convicted after a trial in the District Court at Bowen of the offence of rape.  The conviction was recorded on the 10th of November 2004 and he was then sentenced to six years imprisonment.  By notice of application filed on the 4th of August 2005 the applicant seeks an extension of time within which to appeal against conviction. 

The applicant appeared by video on his own behalf on the application heard this morning.  He submitted to the Court that after he was convicted he intimated to his solicitor that he wished to appeal but said that the solicitor told him that he had no grounds on which to appeal.  In fact, no notice was filed within time and the application for the extension of time is filed some nine months after conviction.

In the circumstances it cannot be said that there is a reasonable explanation for the delay in making the application.  On an application such as this the Court also has regard to the merits so as to ensure that a miscarriage of justice is not occasioned by a refusal to grant an extension of time.  The applicant, in his submissions this morning, indicated that on the hearing of the appeal, which would be on the ground that the verdict was unsafe and unsatisfactory, he would be wanting to agitate that the complainant's evidence ought not to have been accepted because there was no DNA evidence supporting her claim, there was no bruising to her body and no dirt on her clothes. 

They were all undoubtedly matters which were canvassed at the trial.  The Court has had the opportunity of perusing the summing-up of the learned trial Judge and in the circumstances no prospects of success on the hearing of an appeal have been demonstrated.  In those circumstances the application for an extension of time to appeal should be refused.

MUIR J:  I agree.

ATKINSON J:  I agree. 

WILLIAMS JA:  The order of the Court is that the application for an extension of time is refused.

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