R v Sheehy

[2003] QCA 53

SUPREME COURT OF QUEENSLAND

CITATION:	R v Sheehy [2003] QCA 53
PARTIES:	R v SHEEHY, Darren Lee (applicant)
FILE NO/S:	CA No 381 of 2002 SC No 129 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	Supreme Court at Maryborough
DELIVERED EX	19 February 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	19 February 2003
JUDGES:	McPherson and Jerrard JJA and Mackenzie J Separate reasons for judgment for each member of the Court; each concurring as to the orders made
ORDER:	1. Application for extension of time granted 2. The time within which a notice of appeal may be given be extended to 22nd November 2002
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL-PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where applicant’s solicitors were unaware of their obligation to file a notice of appeal - where grounds of appeal complain of the wrongful admission of confessional, circumstantial and opinion evidence and of misdirections – where transcripts of pretrial hearings and trials unavailable to Court of Appeal – whether applicant’s prospects of success can be properly assessed in the absence of such material
COUNSEL:	A J Rafter for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

JERRARD JA: On the 4th of September 2002 the applicant was convicted in the Maryborough Supreme Court by a jury of two charges of murder. He applied on the 20th of November 2002 for an extension of time within which to lodge appeals against

those convictions. That application states that grounds of
appeal against both convictions were drafted by his counsel at
the trial on the 5th of September 2002 and forwarded that same
day to the applicant's solicitors.

Those grounds of appeal complain of the wrongful admission of confessional, circumstantial and opinion evidence and of misdirections. The notice of appeal was forwarded on the 18th of September 2002 to Legal Aid Queensland by the applicant's solicitors who apparently expected that Legal Aid Queensland would assess the applicant's prospects of success and lodge the appeal if Legal Aid Queensland was willing to continue with it.

On an undisclosed date the solicitors were advised that Legal Aid Queensland had not received an application for legal aid from the applicant and one was forwarded by the solicitors on the 22nd of October 2002. On the 19th of November 2002 the applicant's solicitors were advised by Legal Aid Queensland that it was the solicitor's obligation to file the notice of appeal and not that of Legal Aid Queensland. The solicitors accordingly bring this application. It is only an application asking to be heard and the applicant and his solicitors appear not to have been at fault in not lodging the application within time. The information helpfully supplied to this Court on this application by counsel for the Director of Prosecutions suggests that the applicant's prospects of success on the merits appear slim but in the absence of a transcript of either of the two pretrial hearings or either of the two trials in which the relevant orders and determinations regarding the admission of the matters complained about were made it is very difficult for this Court to properly assess the applicant's prospects of success.

Accordingly I am of the view that the application should be granted and would order that pursuant to section 671(3) of the Criminal Code that in this matter the time within which a notice of appeal may be given should be extended to the 22nd of November 2002. I add that it appears appropriate that the matter not be listed for hearing on a date any earlier than three months from today.

McPHERSON JA: Yes, I agree with what Justice Jerrard has said.

MACKENZIE J: I also agree.

McPHERSON JA: The application for an extension of time will be granted in the terms stated by Justice Jerrard with an intimation that the matter should not be set down for hearing earlier than three months from today's date unless otherwise ordered.

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