R v. Sinclair - [2009] QCA 206

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sinclair [2009] QCA 206

PARTIES:

R
v
SINCLAIR, Angus
(applicant)

FILE NO/S:

CA No 95 of 2009
DC No 221 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

21 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

9 July 2009

JUDGES:

Muir and Fraser JJA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for an extension of time within which to appeal dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – where the applicant was convicted of burglary, serious assault, deprivation of liberty and arson – where the applicant sought an extension of time in which to appeal against his conviction – where applicant contended that his delay in appealing was due to illness – where delay relatively short – where the proposed grounds of appeal included that perjured evidence was used as the primary source for conviction, that DNA evidence demonstrated that there was a third person present at the crime scene and that his legal representatives were incompetent – whether the applicant had provided a reasonable explanation for his delay in appealing – whether the appeal has reasonable prospects of success

R v Ball[2001] QCA 201, cited
R v DAQ[2008] QCA 75, cited
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied

COUNSEL:

The applicant appeared on his own behalf
M B Lehane for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Qld) for the respondent

MUIR JA:I agree with the reasons of Fraser JA and with the order he proposes.

FRASER JA: On 23 January 2009, after a five day trial in the District Court, the applicant was found guilty of four offences: burglary, serious assault, deprivation of liberty and arson of a building. On the same day he was sentenced to five years imprisonment for the arson offence and to shorter, concurrent terms of imprisonment for the other offences. The judge fixed a parole eligibility date of 29 March 2010. That took into account 483 days spent by the applicant in custody before he was sentenced. (That pre-sentence custody could not be declared as time served under the sentence because the applicant was then in custody also in relation to other offences: see Penalties and Sentences Act 1992, s 159A(1).)

On 28 April 2009 the applicant filed a Notice of Appeal against his convictions and an application for an extension of time in which to appeal.

Application for an extension of time

In R v Tait [1999] 2 Qd R 667 at 668 this Court observed that in considering an application for an extension of time in which to appeal the Court will examine whether there is any good reason shown to account for the delay and…

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. Sinclair

Details

AGLC: R v Sinclair [2009] QCA 206
Case: [2009] QCA 206
Decision Date: 21 July 2009

CaseChat Overview and Summary

The applicant, R v. Sinclair, was convicted of burglary, serious assault, deprivation of liberty, and arson. The applicant sought an extension of time to appeal against his conviction, arguing that the delay in appealing was due to illness. The proposed grounds of appeal included the use of perjured evidence as the primary source for conviction, the presence of a third person at the crime scene demonstrated by DNA evidence, and the incompetence of his legal representatives. The court had to determine whether the applicant had provided a reasonable explanation for the delay in appealing and whether the appeal had reasonable prospects of success.

The legal issues the court had to address were whether the applicant had provided a reasonable explanation for the delay in appealing and whether the appeal had reasonable prospects of success. The court had to consider the length of the delay, the reasons for the delay, and the merits of the proposed grounds of appeal. The court had to balance the need for finality in criminal cases against the need to ensure that justice is done in individual cases.

The court held that the applicant had not provided a reasonable explanation for the delay in appealing. The delay was relatively short, and the applicant had not provided any evidence to support his contention that he was ill. The court also held that the appeal did not have reasonable prospects of success. The proposed grounds of appeal were speculative and lacked merit. The court dismissed the application for an extension of time within which to appeal.

The court dismissed the application for an extension of time within which to appeal. The court held that the applicant had not provided a reasonable explanation for the delay in appealing and that the appeal did not have reasonable prospects of success. The proposed grounds of appeal were speculative and lacked merit. The court concluded that the application should be dismissed.

Orders

Orders of the court

Application for an extension of time within which to appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Sinclair [2009] QCA 206
PARTIES:	R v SINCLAIR, Angus (applicant)
FILE NO/S:	CA No 95 of 2009 DC No 221 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	21 July 2009
DELIVERED AT:	Brisbane
HEARING DATE:	9 July 2009
JUDGES:	Muir and Fraser JJA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for an extension of time within which to appeal dismissed
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – where the applicant was convicted of burglary, serious assault, deprivation of liberty and arson – where the applicant sought an extension of time in which to appeal against his conviction – where applicant contended that his delay in appealing was due to illness – where delay relatively short – where the proposed grounds of appeal included that perjured evidence was used as the primary source for conviction, that DNA evidence demonstrated that there was a third person present at the crime scene and that his legal representatives were incompetent – whether the applicant had provided a reasonable explanation for his delay in appealing – whether the appeal has reasonable prospects of success R v Ball[2001] QCA 201, cited R v DAQ[2008] QCA 75, cited R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied
COUNSEL:	The applicant appeared on his own behalf M B Lehane for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent