R v Losch

[2001] QCA 19

[2001] QCA 19

COURT OF APPEAL

McPHERSON JA
THOMAS JA

MULLINS J

CA No 261 of 2000
THE QUEEN
v.

TREVOR ALLAN LOSCH Applicant

BRISBANE
..DATE 07/02/2001
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McPHERSON JA: This is an application by Trevor Allan Losch for an extension of time within which to appeal against his conviction and to seek leave to appeal against his sentence in respect of a series of offences of which he was found guilty at a trial that took place in July of last year. The offences in question were acts of indecent dealing and the like committed upon two children who, at the time, were aged under 12 or thereabouts.

The date on which the verdict and conviction took place was 28 July 2000 and the applicant was sentenced on 24 August 2000. Despite the fact that the notice of appeal ought, in the ordinary course of events, to have been lodged within a period of 28 days after the date of conviction on 28 July, the notice of application for leave to appeal against conviction bears the date 28 September 2000. The notice of appeal was therefore lodged in the order of about two months after the date of conviction and therefore about a month or more after the last date for appealing had expired.

The applicant has appeared in person before us to argue that an
extension of time should be allowed. In order to achieve that
result, he needs to establish two things. One is that there
was a good reason for his failing to lodge the appeal, or make
the application, and hence for extending the time within which
to appeal. The other is that there is some plausible ground of
appeal, as I will call it here, capable of being considered by
the Court if the time for appealing were to be extended.
The applicant has set out in his application for leave to

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appeal some of the reasons he says caused him not to lodge his
notice of appeal. They are to the effect that he lost
communication with, and the assistance of, his trial lawyer due
to a dispute over payment of his fees; and that since admission
to prison he has been unable to speak about his offences due to

the nature of the convictions and the stigma attached to them.

Essentially, what he says is that he has been too ashamed, and

too short of funds, to enable the necessary steps to be taken

to lodge an appeal.

For my part, knowing, as the applicant admits, that on
admission to a correctional centre a person who is convicted is
given a form of notice of appeal with an explanation of what is
to be done to file it, I am not persuaded that what the
applicant says is enough to explain why he did not take steps
to make an application by filling in a form and giving it to
the relevant officer in the prison. It would not have been
necessary to have legal assistance in order to do so, and many
prisoners that come before us in person on applications of this
kind succeed in doing so without the benefit of an advanced
standard of education.

However that may be, we have asked the applicant to explain what it was that went wrong at his trial such as to justify us in thinking that there may be an arguable question of fact or law which could be entertained as an appeal in this Court. He has referred to some things which he says happened, but which in my view - I must say quite frankly - do not appear to me to be in any way capable of being regarded as a basis for an

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appeal to this Court.

In the result, the applicant's attitude is that he cannot even
present an argument in support of this application without
legal assistance. He says he needs a solicitor or barrister in
order to do so, and he needs an adjournment in order to obtain
the services of such a person. That would not necessarily be a
hopeless argument if it were accompanied by some indication of
what is said to have been wrong with the trial or the
conviction; but the applicant has been unable to tell us
anything about what went wrong apart from matters which I do
not find at all persuasive for those purposes. I would
therefore refuse the application for an adjournment and dismiss
the application for an extension of time within which to

appeal.

It only perhaps remains for me to say that, although I do not
wish to encourage a further application of this kind, a
dismissal of this application does not necessarily prevent the
applicant from making a further application supported by proper
material. In consequence, if he were to obtain legal services
enabling him to put material before us showing that some
miscarriage of justice had taken place, he would have almost as
good a chance then of obtaining an extension as he does now.
As matters stand, there is nothing to suggest there is any

basis at all for thinking he was not rightly convicted.

In the result, I would refuse the application.
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THOMAS JA: I agree. I would not be prepared to extend time unless some basis could be seen for thinking that there might be a viable appeal. The foreshadowed notice of appeal so far as it seeks to appeal against conviction merely asserts the ground, "Conviction on the evidence was unsafe and against the weight of the evidence." In the absence of particulars such an assertion does not provide any viable basis for an appeal or indeed any reason for the Court to think that something should be investigated.

The applicant was asked to tell us of any concerns that
he feels he has going to the incorrectness or
unsatisfactoriness of the verdict. The only potential grounds
that he mentioned, as I would summarise them, commence with the
assertion that his lawyer had played golf with the Stipendiary
Magistrate before whom the committal proceeded. This was
followed by hints of bias on the part of that Magistrate and in
turn of the Judge who presided at the trial and the inference
that someone must have got at them both. There was an
assertion that the witnesses lied.
There was also a concern mentioned in relation to a suggestion
that the Crown Prosecutor ought to have retired from the case
at some point. I should mention that no foundation has been
presented in relation to that allegation, and that Mr Campbell
who appeared for the Crown presented an adequate explanation of
the occurrence to which the applicant appears to have been
referring. These are the only bases which are suggested as
warranting the further prosecution of an appeal. These are
inadequate in my view to justify the Court in exercising its

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discretion to extend time to enable such an appeal to be
brought. I agree with the orders proposed by the presiding
Judge.

MULLINS J: I also agree. There is no adequate explanation for the failure to lodge a notice of appeal within the requisite time period. In the absence of an indication by the applicant of any complaint of substance about the conduct of his trial or particulars of why the jury's verdict was unsafe and against the weight of the evidence there is no purpose in adjourning this application. I agree with the orders proposed.

McPHERSON JA: Yes. The application to extend time for an appeal is dismissed.

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