R v McLeod - [2017] QCA 152

[2017] QCA 152

COURT OF APPEAL

SOFRONOFF P
MORRISON JA
ATKINSON J

CA No 83 of 2017
DC No 194 of 2016

THE QUEEN

McLEOD, Bradley Robert Applicant

BRISBANE

WEDNESDAY, 19 JULY 2017

JUDGMENT

SOFRONOFF P: Justice Morrison will give the first judgment.

MORRISON JA: This is an application for an extension of time to seek leave to appeal against sentences imposed in the District Court on 16 June 2016. The application to extend time was filed on 21 April 2017, and thus more than eight months out of time.

The approach applicable on an application such as this is that laid down in R v Tait [1999] 2 Qd R 667 at 668:[1]

[1][1999] 2 Qd R 667, [1998] QCA 304, at 668. Internal citations omitted.

“…the Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. That may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant’s appeal, and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay, it being much easier to excuse a short than a long delay.”

Explanation for the delay

The applicant has advanced an explanation[2] in relation to the delay. It is as follows:

[2]Albeit, not sworn in affidavit form.

(a)after he was sentenced, he had no further contact with his solicitor or barrister, each of whom appeared for him at his sentence;
(b)it was not explained to him that he had only 28 days in which to initiate an appeal;
(c)he did not receive anything from his lawyers, asking him if he wished to appeal;
(d)he was not aware that he had only 28 days in which to appeal;
(e)after the sentence, there came a time when he discussed his case with other prisoners and discovered that there have been other cases which have resulted in lesser sentences;
(f)discovering that there were other cases with different sentences, he decided he should appeal.

What is notable about the applicant’s explanation is that he does not say that he was unaware that he had the right to appeal against the sentence. All that he has said is that his lawyers told him nothing and he was unaware that the time limit was 28 days. It is therefore appropriate to proceed on the basis that at all material times, the applicant was aware that he had a right to appeal against…

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 McLeod

Details

AGLC: R v McLeod [2017] QCA 152
Case: [2017] QCA 152
Decision Date: 19 JULY 2017

CaseChat Overview and Summary

The case of R v McLeod involved an application for an extension of time to seek leave to appeal against sentences imposed by the District Court. The applicant, Bradley Robert McLeod, was convicted of various offences, including rape, burglary, robbery, and assault on a police officer. McLeod's application for an extension of time was filed more than eight months out of the statutory time limit. The primary legal issue was whether the applicant had provided a good reason for the delay in seeking an extension and whether it was in the interests of justice to grant the extension.

The Court of Appeal examined the applicant's explanation for the delay and found it to be inadequate. McLeod argued that he had no further contact with his lawyers, was not informed about the 28-day time limit for initiating an appeal, and was unaware of the need to appeal until he discovered other cases with lesser sentences. However, the court noted that McLeod was not unaware of his right to appeal but was simply unaware of the time limit. The court concluded that McLeod's explanation was not acceptable as it would erode the efficacy of the 28-day time period. Additionally, the court assessed the merits of the proposed appeal and found it to have little merit, particularly in light of the severity of McLeod's crimes and the similarity of his case to others where high sentences were upheld.

The Court of Appeal refused the application for an extension of time. The judges concluded that McLeod's explanation for the delay was inadequate, and a provisional assessment of the appeal's prospects revealed a distinct lack of merit. The order of the court was that the application for an extension of time within which to appeal was refused.

Orders