R v Robinson

[2011] QCA 255

SUPREME COURT OF QUEENSLAND

CITATION:

R v Robinson [2011] QCA 255

PARTIES:

R
v
ROBINSON, Robert Raymond Lloyd
(appellant)

R
v
ROBINSON, Robert Raymond Lloyd
(respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(appellant)

FILE NO/S:

CA No 251 of 2008
CA No 253 of 2008
DC No 2323 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Criminal

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

27 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

18 June 2009

JUDGE:

Muir JA

ORDER:

Application for an indemnity certificate refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicant was convicted of two counts of contravening
s 26(1) of the Commonwealth Authorities and Companies Act 1997 (Cth) – where the applicant successfully appealed against his convictions – where the applicant sought an indemnity certificate over a year out of time – where no good reason was advanced for the delay in filing the application – whether there are sufficient grounds for the Court to exercise its discretion and grant an indemnity certificate

Appeal Costs Fund Act 1973 (Qld), s 15

COUNSEL:

P J Callaghan SC, with T D Gardiner, for the applicant
B W Farr SC, with D R Kent, for the respondent

SOLICITORS:

Creevey Russell Lawyers for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent

1. On 1 September 2009, this Court, by a majority, allowed an appeal against the applicant’s conviction of two counts of contravening s 26(1) of the Commonwealth Authorities and Companies Act 1997 (Cth) and set aside the applicant’s convictions. On 2 December 2010, the applicant’s solicitors wrote to this Court’s Registry seeking an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act (Qld) 1973 (“the Act”). No reason for the delay in making the application was advanced.

1. After a request for an explanation of the delay, the applicant’s solicitors advised that they were of the mistaken view at the time of the appeal that as costs were not awarded or sought, that the Act had no application.  They further intimated that, at a time unspecified, they received a suggestion that an application under the Act may be possible.  Then it was said that:

“Further uncertainty followed as to the interpretation of s.15 of the Appeal Costs Fund Act 1973 and its application in these circumstances…”

1. Practice Direction 2 of 2010 requires an application for an indemnity certificate under the Act to be made either orally at the appeal hearing or by way of a written outline of argument filed in the Registry within 14 days of the delivery of the judgment of the Court.  An even shorter period was provided for in the preceding Practice Direction which applied prior to 7 May 2010.  There is good reason for the time limitation.  Unless applications are made promptly, there may be difficulty in securing the availability of members of the Court to deal with the application.  Delay will, almost inevitably, lead to inefficiencies which impose unnecessary burdens on the Court.  The judges dealing with the application will have to refresh their memories of the relevant reasons and of other relevant circumstances which may include aspects of the conduct of the proceedings at first instance.  In this case, one member of the Court hearing the appeal ceased to be a judge of this Court in March 2010.

1. In appropriate circumstances, delay, even extensive delay, may not necessarily prove fatal. In this case, however, no good reason has been shown as to why an indemnity certificate should be granted despite the remarkably extensive delay. The applicant has an additional difficulty: s 15 of the Act applies only to respondents to appeals. Accordingly, I order that the application be refused.