R v Tait

[1998] QCA 304

IN THE COURT OF APPEAL	[1998] QCA 304
SUPREME COURT OF QUEENSLAND

C.A. No. 210 of 1998

Brisbane

[R. v. Tait]

THE QUEEN

v.

WILLIAM PETER TAIT

(Applicant)

McMurdo P. Thomas J.A. Cullinane J.

Judgment delivered 6 October 1998

Judgment of the Court

APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL

REFUSED.

CATCHWORDS:	CRIMINAL - application for extension of time within which to appeal - exercise of discretion - whether good reason shown to account for the delay - whether interests of justice served by granting extension - factors to be taken into account - exceptional circumstances not necessary
R. v. Trew [1979] Qd.R. 29 R. v. Brown [1985] 2 Qd.R. 126 R. v. Ollis and Andersen (1986) 21 A.Crim.R. 256 R. v. Armstrong [1996] 1 Qd.R. 316 R. v. M [1996] 1 Qd.R. 532
Counsel:	The applicant appeared on his own behalf Mr P. Rutledge for the respondent
Solicitors:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	16 September 1998

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 6 October 1998

1           The applicant represents himself and as he is impecunious and resides in Townsville, the Court acceded to his request to hear his submissions by telephone link.[1]

[1]              See R.S.C. O. 40 r. 1A.

2 This is an application for extension of time within which to appeal from a decision of His Honour Judge Wall in the District Court at Townsville on 13 February 1998 under s. 118, District Court Act 1967. His Honour dismissed an appeal under s. 222 of the Justices Act 1886 from a decision of the Townsville Magistrates Court convicting the applicant of one count of production of a dangerous drug (s. 8, Drugs Misuse Act 1986); one count of possession of a dangerous drug (s. 9, Drugs Misuse Act 1986), and one count of possession of instructions for producing a dangerous drug (s. 8A, Drugs Misuse Act 1986).

3 The relevant time period for filing an application for leave to appeal under s. 118 of the District Court Act 1967 appears to be 28 days under r 334 of the District Court Rules.[2] The application for leave to appeal was not filed until 29 June 1998 and is therefore four and a half months outside the allowed time period. The principles applicable to applications for extension of time in criminal appeals are now less stringent than they were expressed to be in R. v. Trew[3], R. v. Brown[4] and R. v. Ollis and Andersen.[5] It was then suggested that in every case where an extension was sought, the court required “substantial reasons” to be shown why such an extension should be made, and that after a lapse of a considerable period of time, “very exceptional circumstances” were necessary.[6] Ollis and Andersen preferred the “exceptional circumstances” test, and suggested the same test in relation to amending grounds of appeal after time had expired. Such an approach however is now out of step with the approach of the High Court and of this Court in relation to criminal appeals.

[2]              See R. v. Lewis (unreported, C.A. No. 204 of 1998).

[3] [1979] Qd. R. 29.

[4] [1985] 2 Qd. R. 126, 130.

[5]              (1986) 21 A.Crim.R. 256.

[6]           Brown above at p.130.

4           In Armstrong[7] it was expressly stated in this Court that:

“. . . this Court’s practice is not to confine the exercise of its discretion to grant an extension of time to apply for leave to appeal against sentence to instances in which the circumstances are very exceptional. If Trew stands for that view of the law, we would not follow it.”

[7] [1996] 1 Qd. R. 316, 320; compare Re Nelson (1991) 65 A.L.J.R. 240.

5           The recent approach of this Court to the question of extending time in criminal appeals is sufficiently illustrated by R. v. M[8] and a number of unreported cases in this Court.[9] These suggest that the Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. That may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant’s appeal[10], and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay it being much easier to excuse a short than a long delay.

[8] [1996] 1 Qd. R. 532, 536-537, 542; cf. R. v. Lewis (C.A. No. 204 of 1998, 28 August 1998).

[9]           R. v. Porter (C.A. No. 160 of 1997, 26 May 1997) especially per Davies J.A. and per McPherson J.A.; R. v. Wolfven (C.A. No. 376 of 1997, 28 November 1997); R. v. Tatnell (C.A. No. 42 of 1996, 13 March 1996); R. v. Doyle (C.A. No. 70 of 1996, 2 May 1996).

[10]            Compare Kolalich v. D.P.P. (N.S.W.) (1991) 173 C.L.R. 222, 228; Gallo v Dawson (1992) 66 A.L.J.R. 859, 860.

6           Similar factors and practices appear to exist in other courts of criminal appeal.[11]

[11]         Foster v. R. (S.C. of S.A., BC 9603146, 11 July 1996); Matta v. The Queen (1995) 126 F.L.R. 127, 130.

7           The applicant conceded that he knew that there was a time limit for appealing to this Court, but considered that if he filed any document in Brisbane he would probably fairly soon be called on to appear before the Court in that city, and he did not wish to do this. He therefore looked for a local alternative and brought an application for judicial review before the Supreme Court in Townsville, fourteen days after Wall D.C.J.’s dismissal of his appeal. The applicant was not entitled to challenge the decision of Wall D.C.J. by these means and the application was dismissed. The applicant was informed by Cullinane J. that his only avenue of further appeal was to this Court. The applicant then delayed for a further period of over a month before filing his application in this court. The only excuse he has offered is that he was a full-time student, a student union councillor, that he was preparing for student elections and that he had a heavy workload.

8           These reasons do not show the applicant to have been under any greater disadvantage than many other persons in the community. It would seem that he wished to do other things and gave a higher priority to those matters than to the institution of the appeal. In short there is no good explanation shown for the delay.

9           Quite apart from this applicant’s failure to show a reason for extending time, he needs the leave of the Court to bring this appeal, having already exercised his appeal as of right to the District Court.[12] The Court’s discretion to grant or refuse such leave is unfettered.

[12]         District Court Act, s.118(3).

10 The applicant was given adequate opportunity to articulate any error that he alleged to underlie Wall D.C.J.’s judgment dismissing his appeal. He failed to do so beyond generalised assertions that the judge had failed to consider his arguments. The learned judge’s reasons for judgment suggest otherwise. The applicant’s primary ground in the Notice of Appeal is that it has not been established beyond reasonable doubt that any particular person produced or possessed a dangerous drug or possessed instructions about how to produce a dangerous drug. However having regard to s. 57(c) of the Drugs Misuse Act there was adequate evidence to justify the finding of possession; and having regard to his sole occupancy of the premises there was adequate ground to justify the inference drawn by the primary tribunal that the applicant was responsible for the production of the drug that was growing there. As to the third count which related to possession of a book which was said to contain instructions on how to produce a dangerous drug, that involves a simple factual issue and there is no reason to think that any error occurred in relation to the conviction.

11         In short, the proposed appeal cannot be described as at all promising, the delay is extensive and poorly explained, and it does not appear to raise any ground to persuade this Court that the case is one which in the interests of justice requires a further appeal to be heard.

12         Accordingly the application for extension of time should be refused.