R v Rogers - [2011] SASCFC 95

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Application)
R v ROGERS
[2011] SASCFC 95
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice David and The Honourable Justice Peek)
19 August 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - NOTICES OF APPEAL - TIME FOR APPEAL AND EXTENSION THEREOF
Application for an extension of time within which to apply for permission to appeal against sentence - whether the explanation for the significant delay in filing the application was satisfactory - whether an appeal, if an extension of time and permission were granted, would have reasonable prospects of success.
Held (Doyle CJ with David and Peek JJ concurring): the overall delay was not satisfactorily explained - if permission were granted, there was no reasonable prospect of success.
Application for an extension of time within which to apply for permission to appeal against sentence refused.

R v ROGERS
[2011] SASCFC 95
Court of Criminal Appeal: Doyle CJ, David and Peek JJ

DOYLE CJ (ex tempore): Mr Rogers has applied for an extension of time within which to apply for permission to appeal against a sentence imposed by the District Court.
Mr Rogers pleaded guilty to a charge of aggravated causing death by dangerous driving. The maximum penalty for that offence is life imprisonment. It was alleged and admitted that at the time in question there was present in his blood a concentration of 0.08 grams per 100 millilitres of blood or more.
The Judge imposed a sentence of imprisonment for six years nine months. That sentence had been reduced by 10 per cent, taking into account a late plea of guilty. The Judge fixed a non-parole period of five years five months. The sentence was imposed on 22 October 2009, and took effect from that date.
The application now before the Court was filed on 24 May 2011. It is about 18 months out of time.
A Judge of this Court refused the application for an extension of time within which to appeal. Mr Rogers now renews that application to this Court.
There are two main issues for the Court to consider. First, the delay in making the application and the explanation for the delay. Second, the prospects of an appeal succeeding, if an extension of time and permission to appeal are granted.
Mr Rogers has provided an explanation which does cover some of the delay. However, it is far short of adequately explaining the delay in its totality. For example, by letter dated 12 November 2009, Mr Rogers was informed that counsel had advised that his appeal had no reasonable prospect of success, and he was advised to contact his solicitor urgently. Mr Rogers realised that the appeal had not been instituted, but thought he needed to have legal representation to appeal. Nothing seems to have happened until June 2010 when his parents spoke to another solicitor. Advice was given again that an appeal…

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 Rogers

Details

AGLC: R v Rogers [2011] SASCFC 95
Case: [2011] SASCFC 95
Decision Date: 19 August 2011

CaseChat Overview and Summary

The applicants, R and Rogers, sought an extension of time within which to apply for permission to appeal against their sentences. The primary issue before the Full Court of the Supreme Court of South Australia was whether the explanation provided for the significant delay in filing the applications was satisfactory, and if so, whether the appeals, if granted an extension and permission, would have reasonable prospects of success.

The Court was required to determine two key questions. Firstly, whether the applicants had provided a sufficient and satisfactory explanation for the considerable time that had elapsed between the imposition of their sentences and their attempts to appeal. Secondly, the Court had to assess whether, assuming an extension of time and permission to appeal were granted, the proposed appeals against sentence had any real or substantial prospects of succeeding.

In its reasoning, the Court considered the principles governing applications for extensions of time in criminal appeals, which generally require a satisfactory explanation for the delay and evidence of arguable grounds of appeal. The Court examined the specific circumstances put forward by each applicant to explain their delay, scrutinising the reasons provided against the established legal standards. The assessment of prospects of success involved a preliminary evaluation of the merits of the proposed grounds of appeal against sentence.

The Court ultimately dismissed the applications, finding that the explanations for the delay were not satisfactory in either case. Consequently, the Court did not grant an extension of time, and therefore, the applications for permission to appeal against sentence were refused.

Orders