R v Thomas and Chong

[2012] QCA 40

SUPREME COURT OF QUEENSLAND

CITATION:

R v Thomas & Chong [2012] QCA 40

PARTIES:

R
v
THOMAS, John Conway
(applicant)

R
v
CHONG, Initia Rachel
(applicant)

FILE NO/S:

CA No 341 of 2011
CA No 342 of 2011
DC No 100 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Mt Isa

DELIVERED EX TEMPORE ON:

7 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2012

JUDGES:

Margaret McMurdo P and Muir JA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Delivered ex tempore on 7 March 2012:

In each application, the application to extend time to appeal is granted; and time to appeal is extended to 14 December 2011

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – Where applicant was convicted of one count of serious assault and sentenced to six months imprisonment with immediate release on parole – where other applicant was convicted of one count of serious assault and plead guilty to two further counts of serious assault and one count of wilful damage; and was sentenced to an effective term of two years imprisonment with parole release after 12 months – whether the interests of justice warranted granting the applications for extensions of time to appeal against sentence and conviction

COUNSEL:

Applicants appeared on their own behalf
S P Vasta for the respondent

SOLICITORS:

Applicants appeared on their own behalf
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT:  The applicants were each convicted after a nine day jury trial in the District Court at Mt Isa of one count of serious assault.  The applicant, Ms Chong, also pleaded guilty to two further counts of serious assault and one count of wilful damage.  Mr Thomas was sentenced to six months imprisonment with immediate release on parole.  Ms Chong was sentenced to an effective term of two years imprisonment with parole release on 21 October 2012, that is, after 12 months.  They should have filed their appeals against conviction and applications for leave to appeal against sentence within one month.  The present applications for extensions of time were dated by their lawyers on 29 November 2011 but were not filed in the Appeals Registry until 13 December 2011.  They are therefore about three weeks late.

By way of explanation for the delay they each state in their application:

1. I instructed my solicitor to obtain legal opinion as to prospects of success on appeal. 

2. Counsel reverted to my solicitor on 26 October 2011.

3. I am informed that a conversation between counsel and my solicitor on the 8 November 2011 was to the effect that the matter required further consideration of grounds of appeal.

4. On 24 November 2011 solicitor advised counsel was on leave.

5. As at 29 November 2011 solicitor, despite a number of attempts to contact counsel by telephone has been unable to speak with counsel to finalise grounds of appeal.

6. As such appeal lodged in terms initially advised by counsel with a view to amending same upon leave being granted, if need be." (errors in original)

If granted an extension of time the applicants would each appeal on the basis that the sentence was manifestly excessive; the guilty verdict was unsafe; comments made by the prosecutor in attacking defence counsel in her address were so intemperate, improper and unprofessional so as to influence the jury's verdict; and the conduct of one juror in contacting the prosecutor and asking her out "on a date", should have led to the discharge of the jury.

The applicants are both Aboriginal residents of Mornington Island where the alleged offences occurred and are each self represented in their applications. 

The respondent opposes each application for an extension of time, contending that none of the proposed grounds of appeal have any merit so that extending time would be futile.

The applications lodged by the applicants' former solicitors demonstrate that the applicants wished to appeal; they relied upon their lawyers to do so; and they were let down by their lawyers.  The applications were ultimately filed by their lawyers about three weeks late.  The respondent's contention that there is no merit in the proposed grounds of appeal may ultimately prove to be correct, although it must be said that some of the proposed grounds of appeal appear at least arguable.  It is impossible for this Court to determine whether there is merit in the proposed grounds of appeal without a full Appeal Record Book.  Further, if the extension of time to appeal is granted, the applicants may be successful in obtaining legal representation at the appeal hearing.  This would not only be advantageous for them; it would also assist the Court and the justice system.

For these reasons, in each application I would grant the application and extend time to appeal to 14 December 2011.

MUIR JA:  I agree.

APPLEGARTH J:  I agree.

THE PRESIDENT:  That is the order of the Court.