R v S

[2001] QCA 405

[2001] QCA 405

COURT OF APPEAL

WILLIAMS JA
CHESTERMAN J
MULLINS J

CA No 178 of 2001

THE QUEEN

v.

S  Applicant

BRISBANE

..DATE 25/09/2001

JUDGMENT

WILLIAMS JA:  The Court has before it today an application for extension of time within which to appeal.  The applicant was convicted of raping his wife from whom he had been separated for a short period of time prior to the commission of that offence. 

The conviction was recorded on 21 January 2001.  The applicant has stated to this Court that he was not aware of his appeal rights for a significant period of time thereafter and in fact his application for leave to appeal was lodged on 28 June 2001. 

When the matter came on for hearing today he handed to the Court a document headed "Issues that were not brought up at Trial".  That was treated by the Court as his outline of argument.  It raises a number of matters and that particularised in paragraph 2 is of concern to the Court.  On the present material there is no way that this Court can evaluate whether or not there is any merit in the points raised in that document such as would justify the Court granting an extension of time.

Legal Aid has indicated to the applicant that if an extension of time was granted they would consider the matter on the merits.  In the circumstances the Court has come to the view that the application for extension of time should be adjourned to enable more material to be placed before the Court indicating whether or not there are any merits in the issues raised by the applicant in that document.

The Court seeks the assistance of the Legal Aid Office in that regard, bearing in mind the fact that the applicant is in custody and unable himself to take the necessary steps to obtain further material relating in particular to the matter raised in paragraph 2 of that document.  If the Legal Aid Office was able to intimate that there was some merit worth pursuing then in my view it would be an appropriate case in which to grant an extension of time.

An adjournment before granting leave to appeal saves the cost of preparing an appeal book unnecessarily.  In the circumstances it is proposed to adjourn the matter to a date to be fixed.  The applicant should cooperate fully with the Legal Aid office.  As soon as possible the Registrar of the Court should be informed of any evaluation made by Legal Aid.

In the circumstances the order of the Court will be adjourn the application for extension of time to the Registrar.

CHESTERMAN J:  Yes, I agree.  The contents of paragraph 2 of the document given to us by the applicant raises the possibility that there has been a miscarriage of justice.  Whether there has been can only be known after further investigations.  At the present time there is not sufficient material to make an assessment of that point.  It should be looked into.

MULLINS J:  On the basis of the materials that were provided to the Court for the purpose of deciding the application for the extension of time I had come to the conclusion that a potential appeal was not viable.  When the matter came on for hearing today the applicant produced a list of issues. Paragraph 2 has the potential to raise an issue which may provide a viable ground for appeal.

I also agree that the application should be adjourned to enable further investigations to be made and material put before the Court in relation to the issues raised by the applicant in his outline and particularly paragraph 2.  I agree with the orders proposed by the presiding Judge.

WILLIAMS JA:  Well, the orders will be as I have indicated.  Mr S, do you understand the position now?

APPLICANT:  Yes, I do.

WILLIAMS JA:  All right.  I will direct the Registry to send a copy of the remarks made by the Judges to you, Mr S, at Woodford Prison.

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