R v Martin - [2002] VSCA 16

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 108 of 2001

THE QUEEN
	v.
LEWIS UPSAL MARTIN

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APPLICATION FOR EXTENSION OF TIME

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JUDGES:	WINNEKE, P. and BROOKING and CHARLES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF APPLICATION:	13 February 2002
DATE OF ORDER:	13 February 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 16

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No basis demonstrated for extending time for leave to appeal against conviction.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S.E. Pullen	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr C.J. Pearson (pro bono)

WINNEKE, P. (delivering the judgment of the Court):

In this matter the applicant, Lewis Upsal Martin, who is now aged 37, pleaded not guilty in the County Court at Bendigo to a presentment alleging one count of recklessly causing serious injury on 23 November 2000. After a trial the applicant was convicted and on 11 December was sentenced to three years' imprisonment with a non-parole period of 18 months fixed. He now applies for an extension of time within which to lodge a notice of application for leave to appeal against conviction. The Registrar of the Court refused such leave on 7 November 2001, and the applicant filed notice of election to have his application determined by the Court of Appeal.

The Crown case in relation to this offence was briefly as follows. On 20 November 1999 the applicant had been drinking at various hotels in Kyneton and, that evening, having been evicted from one of the hotels after consuming a considerable quantity of alcohol, returned to the house in which he was staying in Piper Street, Kyneton. Earlier that day the applicant had been involved in a dispute in the Shamrock Hotel. One Shane Muir, who had been drinking in a nearby hotel, observed this and saw the applicant return to his house in Piper Street. Muir took it upon himself to confront the applicant, even though he did know him or what had happened at the Shamrock Hotel. The dispute did not involve him at all. As the judge found, inflamed by alcohol, Muir crossed the road and knocked on the door of the applicant's house. The applicant answered the door, and after some unfriendly preliminaries, a fight followed. During the course of a brief but intense fight, the applicant and Muir fell to the ground, with Muir apparently getting the better of the applicant. Hoping to bring the fight to a stop, the applicant then bit Muir on the upper right ear, effectively severing the upper portion of the ear from Muir's head. The judge said that Muir then made repeated requests for the return of his ear, but the applicant bragged and gloated that he had won the fight and had eaten the ear, which was in fact the case.

Muir was subsequently taken to the Kyneton Hospital and from there to the Royal Melbourne Hospital. He was operated on the following day, and later underwent four further operations in an endeavour to reconstruct his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Martin

Details

AGLC: R v Martin [2002] VSCA 16
Case: [2002] VSCA 16
Decision Date: 13 February 2002

CaseChat Overview and Summary

In the case of R v Martin, the respondent sought leave to appeal against his conviction on grounds of unrepresented legal advice. The matter was heard in the court of appeal, which was required to determine whether there were exceptional circumstances warranting an extension of time to lodge the application for leave to appeal. The appeal was against the decision of a single judge of the Supreme Court who had dismissed an application for leave to appeal on the basis that the respondent had failed to demonstrate a basis for extending the time within which the application for leave to appeal was to be made.

The primary legal issue the court had to address was whether the respondent had provided sufficient grounds for an extension of time to appeal his conviction. The court needed to balance the principle of finality of judgments with the respondent's right to appeal. The court considered whether the respondent's situation was exceptional enough to warrant the extension of time.

The court found that the respondent had not demonstrated any basis for extending the time for the application for leave to appeal. The court emphasised the importance of adhering to statutory timelines for appeals and noted that the respondent had failed to provide a satisfactory explanation for the delay. The court held that the absence of exceptional circumstances meant that the respondent's application for an extension of time was without merit. Consequently, the application for leave to appeal was dismissed.

The court's decision was clear and final. The respondent was not granted leave to appeal against his conviction, and the appeal was dismissed. The court reiterated the importance of timely applications and the need for compelling reasons to extend statutory deadlines.

Orders