R v Subramaniam

COURT OF APPEAL

[1998] QCA 450

McMURDO P
McPHERSON JA

MUIR J

CA No 333 of 1998
THE QUEEN
v.

RHAAJESH SUBRAMANIAM	(Applicant)
BRISBANE ..DATE 27/10/98
JUDGMENT
271098 T21/BP M/T COA276/98

THE PRESIDENT: This is an application for an extension of time within which to appeal against conviction and sentence.

The applicant who is unrepresented today but who was represented at his trial was convicted of two counts of murder and sentenced to mandatory life imprisonment in the Brisbane Supreme Court on 19 August 1998. He filled out a notice of appeal on 21 September 1998 at the Arthur Gorrie Correctional Centre two days after the expiry of the appeal period.

The notice of appeal was received in this Registry on 25 September 1998. The applicant says he instructed his solicitor he wished to appeal on the day he was sentenced, on 19 August 1998. He claims his solicitor said that he would look into an appeal but nothing was done within time. There were delays within the prison in him seeing someone from Legal Aid.

He finally saw a Legal Aid representative the day before the expiry of the appeal period. He was advised to file a notice of appeal. He tried to do so but he says he did not understand the position clearly and was advised by his unit officers to wait until the senior unit officer came to work on 21 September 1998. He claims he was advised by Legal Aid to appear unrepresented on the extension application and that Legal Aid would represent him on the appeal.

The grounds he seeks to argue on his appeal include that the verdict was unreasonable. He also claims that evidence was given at his trial that was not made available to him prior to

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271098 T21/BP M/T COA276/98

the trial and he claims that police interviews with him were
wrongly admitted.

The case as outlined to this Court by the respondent seems a strong one. The learned trial Judge indeed in his sentencing remarks described the case "as an extremely strong one."

The applicant having been convicted of two counts of murder is
serving life imprisonment and the learned sentencing Judge in
his sentencing remarks commented:

"Because of the nature of the crimes of which you have been

convicted careful evaluation should be made of the risk
to the community before any consideration is given to
releasing you on parole."

For the purposes of this application the learned trial Judge's summing-up and a full transcript of evidence is not available.

The material before this Court does not convince me that

there is great merit in the appeal.

In order to fully consider the ground that the verdict is unreasonable, it would be preferable in this case to fully review the evidence given at the trial by means of access to the transcript and desirable to read the learned trial Judge's summing-up.

The appeal was filed only a few days late. Despite the apparent strengths of the Crown case, I would be reluctant to deny the applicant in this case the opportunity to appeal against such serious convictions simply because he has lodged the appeal at most five or six days late, especially when he

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271098 T21/BP M/T COA276/98

has given some apparently plausible explanation for that
delay.

For my part on the facts of this case I would grant the application for an extension of time within which to appeal against conviction. Although a life sentence is mandatory in this State for murder, in case anything is sought to be made of His Honour's comments as to the future release of the applicant, I would also grant the application for extension of time within which to apply for leave to appeal against sentence.

McPHERSON JA: I agree.

MUIR J: I agree.

...

THE PRESIDENT: The order will be that the applications for extension of time within which to appeal and within which to apply for leave to appeal are granted and the time allowed for the filing of the notice of appeal and application for leave to appeal against sentence is extended to 25 September 1998.

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4 JUDGMENT

CaseChat Overview and Summary

In the matter of R v Subramaniam, the applicant, an unrepresented individual, sought an extension of time to appeal against his conviction and sentence for two counts of murder, which resulted in a mandatory life imprisonment. The applicant, who was represented during his trial, lodged a notice of appeal on 21 September 1998, two days after the expiration of the appeal period. The applicant alleged that he had instructed his solicitor to pursue an appeal on the day of his sentencing, 19 August 1998, but due to delays within the prison system in consulting with Legal Aid, he was only able to file the notice of appeal on 25 September 1998. The applicant's grounds for appeal include the claim that the verdict was unreasonable and that evidence not previously disclosed to him and improperly admitted police interviews were presented during the trial.

The legal issues before the court were whether the applicant's notice of appeal, filed a few days late, should be accepted and whether the applicant was entitled to an extension of time to file the appeal and apply for leave to appeal against his sentence. The court needed to consider the merits of the applicant's explanations for the delay and whether the appeal had sufficient merit to warrant an extension of time. The court was also required to determine whether the delay in filing the appeal was justified in light of the applicant's circumstances and whether the applicant's rights to a fair trial and appeal were being upheld.

The court acknowledged the strength of the Crown's case and the severity of the applicant's crimes, but found that the applicant had provided a plausible explanation for the late filing of the appeal. The court noted that a full review of the evidence and the trial judge's summing-up was not available, but granted the application for an extension of time to appeal and to apply for leave to appeal against sentence. The court emphasised that in cases involving serious convictions, such as murder, it was important to allow the applicant the opportunity to appeal against their conviction, even if the appeal was filed late, provided that there was a reasonable explanation for the delay. The court also highlighted the mandatory nature of life imprisonment for murder in Queensland and the need to carefully evaluate the risk to the community before considering the applicant's release on parole.

The Court of Appeal granted the application for an extension of time to appeal against the conviction and sentence, extending the time allowed for filing the notice of appeal and the application for leave to appeal against sentence to 25 September 1998. The unanimous decision of the President, McPherson JA, and Muir J was to allow the applicant the opportunity to pursue his appeal against the serious convictions, despite the late filing of the notice of appeal, due to the applicant's plausible explanation for the delay and the importance of upholding the applicant's right to a fair trial and appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established