R v McClure - [2020] QCA 45

SUPREME COURT OF QUEENSLAND

CITATION:

R v McClure [2020] QCA 45

PARTIES:

R
v
McCLURE, Samuel David
(applicant)

FILE NO/S:

CA No 254 of 2019
DC No 2279 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time

ORIGINATING COURT:

District Court at Brisbane –Date of Conviction: 13 February 2019 (Shanahan DCJ)

DELIVERED EX TEMPORE ON:

16 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

16 March 2020

JUDGES:

Sofronoff P, Philippides and Mullins JJA

ORDER:

Application for extension is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicant seeks extension of time to appeal conviction – where application filed more than six months late – where the applicant pleaded guilty to one count of attempted armed robbery after receiving legal advice – where applicant submits he was too drug affected at the time of the offence to form intent to steal – where applicant does not provide any detail as to the likely content of evidence regarding his mental state at the time of the offence – whether application for extension of time should be allowed

R v Tait [1999] 2 Qd R 667; [1998] QCA 304, considered

COUNSEL:

The applicant appeared on his own behalf
D Balic for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MULLINS JA: On 13 February 2019, Mr McClure pleaded guilty in the District Court to one count of attempted armed robbery. The date of the offence was 14 April 2018. He was sentenced to imprisonment for three years and given a fixed parole release date of 13 April 2019. A pre-sentence custody declaration was made in respect of the period of 215 days that he had spent in custody and that could be declared as time already served under the sentence. He applies for an extension of time in which to apply for leave to appeal against the sentence by application filed on 25 September 2019. At the same time, Mr McClure filed the application for leave to appeal against sentence.

His extension application was therefore filed more than six months after an appeal should have been filed. Mr McClure appears for himself on this application. Mr McClure was 37 years old when he was sentenced. He was represented by a firm of solicitors who instructed counsel to appear on his behalf. He pleaded guilty on the day his trial on the charge was due to start. He signed written instructions to his solicitors on the previous day that confirmed he wished to plead guilty to the offence and acknowledged that he had read the charge and the prosecution’s schedule of facts and that he did not wish to contest the facts.

The grounds on which Mr McClure applies for the extension and the application for leave to appeal against the sentence relate to his conviction rather than 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 McClure

Details

AGLC: R v McClure [2020] QCA 45
Case: [2020] QCA 45
Decision Date: 16 March 2020

CaseChat Overview and Summary

In this matter, the appellant, McClure, sought an extension of time to appeal his conviction. The respondent, the Crown, opposed the application. The case was heard in the Queensland Court of Appeal. McClure was convicted of one count of attempted armed robbery after pleading guilty following legal advice. He now sought to appeal the conviction, arguing that he was too drug affected at the time of the offence to form the intent to steal.

The legal issue before the court was whether the application for an extension of time should be granted. The court considered the general principles governing the grant or refusal of an extension of time, noting that extensions are not a matter of right and are only granted in exceptional circumstances. The court further noted that the application was filed more than six months late, which was a significant delay. McClure did not provide any detail as to the likely content of evidence regarding his mental state at the time of the offence. The court held that the application did not meet the exceptional circumstances required for an extension of time.

The court concluded that the application for an extension of time should be refused. The appeal was dismissed, and the conviction and sentence of the primary judge were upheld. The court noted that the delay in filing the application was significant and that McClure had not provided any evidence to support his claim that he was too drug affected at the time of the offence to form the intent to steal. The court held that the application did not meet the exceptional circumstances required for an extension of time, and the application was accordingly refused.

Orders

Orders of the court

Application for extension is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v McClure [2020] QCA 45
PARTIES:	R v McCLURE, Samuel David (applicant)
FILE NO/S:	CA No 254 of 2019 DC No 2279 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time
ORIGINATING COURT:	District Court at Brisbane –Date of Conviction: 13 February 2019 (Shanahan DCJ)
DELIVERED EX TEMPORE ON:	16 March 2020
DELIVERED AT:	Brisbane
HEARING DATE:	16 March 2020
JUDGES:	Sofronoff P, Philippides and Mullins JJA
ORDER:	Application for extension is refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicant seeks extension of time to appeal conviction – where application filed more than six months late – where the applicant pleaded guilty to one count of attempted armed robbery after receiving legal advice – where applicant submits he was too drug affected at the time of the offence to form intent to steal – where applicant does not provide any detail as to the likely content of evidence regarding his mental state at the time of the offence – whether application for extension of time should be allowed R v Tait [1999] 2 Qd R 667; [1998] QCA 304, considered
COUNSEL:	The applicant appeared on his own behalf D Balic for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent