R v Peng

[2016] QCA 79

[2016] QCA 79

COURT OF APPEAL

MORRISON JA
PHILIPPIDES JA
MULLINS J

CA No 114 of 2015
DC No 1801 of 2014

THE QUEEN

v

PENG, Han-Ting  Appellant/Applicant

BRISBANE

MONDAY, 4 APRIL 2016

JUDGMENT

MORRISON JA:  In this matter, the following information has been recorded by the registry.  The Notice of Appeal was filed on 5 June 2015.  An application for assistance was refused by Legal Aid Queensland on 20 January 2016, at which time this matter was listed for hearing on its current hearing date of 4 April 2016.

On 1 February 2016 the appellant’s appeal record book and a letter advising of the listing date of this appeal were forwarded to the appellant by registered post to the address 31 Glenbrae Street, The Gap, Queensland, 4061.  That is the address provided by the appellant as his address for service in his Notice of Appeal.  On 24 February 2016 the appeal record book and letter advising of the listing of this appeal for hearing were returned to the registry by Australia Post as being unclaimed.  On receipt of the appeal record book on 24 February 2016 the registrar of the Court of Appeal attempted to contact the appellant on the telephone number provided by the appellant in his Notice of Appeal.  This number does not appear to be connected as the error message, “Your call could not be connected.  Please check the number and try again,” was returned.  Subsequent calls were placed on 25 February, 26 February, 2 March, 16 March, 30 March and 31 March and all received the same error message.

The appellant provided an email address on his Notice of Appeal.  Emails were sent to the appellant at this email address on 24 February 2016, 26 February 2016 and 29 March 2016 which requested that the appellant contact the registrar of the Court of Appeal as a matter of urgency.  A receipt acknowledging receipt of these emails was returned from his email account.  However, no response to the emails has been received from the appellant.

A search of the QWIC database revealed that the appellant had other matters before lower courts which had been finalised and for which a different telephone number for the appellant had been recorded. This number was called, and when dialled, the following message was returned:

“This mobile number you have called has incoming call restrictions.  Please call again later.”

This number does not allow for a message to be left on a message bank service.  The registry has received no form of contact from Mr Peng in regard to his appeal.

An affidavit of Ms Gilles has been filed, by leave.  It reveals that on 22 March 2016 a copy of the submissions by the respondent were emailed to the email address provided by the appellant.  A delivery receipt was recorded, but there has been no read receipt as of today.

On 22 March 2016 contact was made with the Stafford police who were the arresting officers in this matter.  A request was made to arrange personal service of the respondent’s outline of submissions at the address given in the Notice of Appeal.  A request was also made to find out whether the police had any current alternative addresses for the appellant.  Advice was received from the police that officers of The Gap police attended the residence and they were informed by the current occupant that the appellant was a previous tenant and that he had moved.  Police contacted the landlord of the address who stated the appellant had moved out several months ago and left no forwarding address.  Police have no further information on their database as to a current address for the appellant and also advised he is not a current holder of a Queensland driver’s licence.

In the circumstances, the appeal, in my opinion, should be dismissed for want of prosecution and that is the order I would make.

PHILIPPIDES JA:  I agree.

MULLINS J:  I agree.

MORRISON JA:  The order is that the appeal is dismissed for want of prosecution.  Thank you, Ms Loury.  Adjourn the Court.