R v Tan

[2019] QCA 169

[2019] QCA 169

COURT OF APPEAL

SOFRONOFF P
FRASER JA
MORRISON JA

CA No 94 of 2019
DC No 2767 of 2017

THE QUEEN

v

TAN  Applicant

BRISBANE

MONDAY, 2 SEPTEMBER 2019

JUDGMENT

FRASER JA:  On 11 April 2019, the applicant filed a notice of appeal and an application for an extension of time within which to appeal against his conviction on 10 May 2018 of two counts of rape.  The grounds of the proposed appeal are that the verdicts are unreasonable or cannot be supported having regard to the evidence, and the verdicts are unsafe and/or unsatisfactory.

In considering an application to extend time, it is necessary to consider whether there is any good reason to account for the delay and whether an extension of time is in the interests of justice, which may include reference to a provisional assessment of the prospects of an appeal where that is feasible: see R v Tait [1999] 2 Qd R 667 at 668.

The Court has been supplied with some parts of the evidence at the trial in the District Court but, apparently because of the impecuniosity of the applicant, no transcript of the evidence has been obtained.  In this case, it is not feasible to make a provisional assessment of the strength of the applicant’s proposed appeal.

The applicant has an explanation for his failure to appeal within time.  His explanation is supported by his own affidavit, and affidavits by the solicitor now acting for the applicant and a solicitor who assumed the conduct of the applicant’s file in or about February 2019.  There are some conflicts between this evidence and an affidavit by the barrister who represented the applicant at the trial, but it clearly appears from the affidavits that following the applicant’s conviction neither his former barrister nor his former solicitor advised him of his right to appeal against the convictions.

There is no evidence to suggest that the applicant otherwise appreciated that he had any such right.  Although the barrister formerly retained for the applicant indicates that he orally advised the applicant that there was no merit in appealing against the conviction, neither he nor the applicant’s former solicitor has a file note of the conversation, and the applicant’s former barrister disavows any recollection of advising the applicant of the time limit of 28 days for appealing against conviction.  Furthermore, the applicant’s former barrister acknowledges that he confused the time for appealing against conviction with the time allowed for the appeal against sentence, which was imposed some 10 months after conviction.  After the applicant retained his present solicitor his application for an extension of time was prosecuted without undue delay.

As I have mentioned, it is not feasible to make an assessment of the prospects of success upon the limited material currently available to the Court.  Although the respondent analyses some of the evidence adduced at the trial and contends that the available material does not suggest that there was any miscarriage of justice, the respondent fairly concedes that if the Court concludes that there is a good reason for the delay it might grant an extension of time irrespective of any consideration of the merits.

In these circumstances, I would order that the time within which the applicant must file a notice of appeal against his convictions be extended until 11 April 2019.

MORRISON JA:  I agree.

SOFRONOFF P:  I agree.  The order of the Court is that the time for filing a notice of appeal is extended until 11 April 2019.

Thank you, Mr Sara, for taking this on for pro bono and assisting the Court as you have done.

MR SARA:  Thank you, your Honour.

SOFRONOFF P:  And thank you, Ms Kovac, for your succinct and relevant submissions.

MS KOVAC:  Thank you.

SOFRONOFF P:  They were very helpful.

MS KOVAC:  Thank you.