R v Scriven

[1995] QCA 132

COURT OF APPEAL

[1995] QCA 132

MACROSSAN CJ
PINCUS JA
BYRNE J

CA No 69 of 1995

THE QUEEN

v.

NEIL HEDLEY SCRIVEN

BRISBANE

..DATE 24/03/95

JUDGMENT

PINCUS JA:  This is an application for an extension of time to appeal against conviction.  The applicant, Mr Scriven, was convicted of armed robbery in company in the Supreme Court at Rockhampton before Mr Justice Demack on 3 August 1994 and was sentenced to imprisonment on the same day.  The notice of appeal is dated 17 February 1995.  The grounds upon which the notice is based are as follows:

"(1) RECEIVED INDICATION FROM SOLICITORS THAT AN APPEAL WAS     NOT VIABLE.

(2) CO-OFFENDER HAS RECEIVED APPEAL STATUS AND I WISH TO      LODGE MY APPEAL SEPARATELY."

Mr Scriven's co-offender is one Cook who has indeed filed an appeal in this Court.  The difficulty about the application, as Mr Scriven realises, is its lateness, and he has advanced some explanations for the fact that having been convicted in August, it is only in February that he decided to appeal.

In essence what Mr Scriven says is that in the months which have elapsed since then he has been mulling over the matter and has formed an increasingly firm view that the evidence against him was not sufficient to warrant a conviction.  There has been some discussion of the general nature of that evidence today, including the fact that there was, for example, a thumb print of Mr Scriven on the taxi in which the victim was located.

Mr Scriven says that he had, in fact, caught a taxi on that night, the implication being that he must have been an innocent passenger in the taxi.  It should be mentioned that the taxi driver, the victim, was attacked quite seriously.  Other evidence was discussed with Mr Scriven but the fact remains that he is very much out of time and it is necessary for the Court to be satisfied that there is something in the appeal before an extension will be granted.

Ordinarily an extension will not be granted, when there has been such a considerable lapse of time, unless there is either a good explanation for the delay or some solid reason to think that there is something wrong with the conviction.  In this case there is neither.  The explanation for the delay does not make very much sense, and apart from the general assertion that he should not have been convicted, Mr Scriven really has nothing to put before us to suggest that the conviction is likely to be upset.

It should also be mentioned that we have the advantage of the Crown's outline of submission which, in my experience, is useful in this sort of case.  One expects the Crown to draw attention to anything which it has noticed which is likely to form a ground of appeal.  In the Crown's outline, there is nothing of that kind. 

In my opinion, having regard to the argument which is put before us in a forthright fashion by Mr Scriven, the case is not one in which an extension should be granted for the reasons I have mentioned which are in summary, that there is nothing to suggest that the appeal has any substance and that the application is very much out of time.  I would dismiss the application.

Although Mr Scriven did not discuss this in detail, the notice of appeal would also seek to raise a complaint about the sentence which was one of imprisonment for eight years.  Having read the remarks of the Judge given when sentencing the applicant, I would add that my opinion is that there is nothing in that either.  I would dismiss the application, as I have mentioned.

THE CHIEF JUSTICE:  I agree.

BYRNE J:  I agree.

THE CHIEF JUSTICE:  The application is dismissed.

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