R v Warmisham - [2008] QCA 223

[2008] QCA 223

COURT OF APPEAL

HOLMES JA
WILSON J
DUTNEY J

CA No 160 of 2008

THE QUEEN

WILLIAM WARMISHAM Applicant

BRISBANE

DATE 07/08/08

JUDGMENT

APPLICANT conducted his own case

MR M J COPLEY (instructed by the Director of Public Prosecutions (Queensland) for the respondent Crown

HOLMES JA: I'll ask Justice Wilson to give her reasons.

WILSON J: On 7 April 2003, the applicant pleaded guilty to one charge of arson. He was sentenced to 3 years' imprisonment suspended after 9 months for an operational period of three years.

On 9 June 2008, more than 5 years later, he filed an application for an extension of time within which to appeal against his conviction and a notice of appeal against his conviction.

The ground of his application for an extension of time is stated as follows: "The verdict was unsafe and unsatisfactory. Insufficient weight given to mental condition. I was told that I did not suffer from a mental condition and I was not assessed. I was subsequently assessed as having a brain injury."

By Section 671 of the Criminal Code, a notice of appeal against conviction is to be given within one calendar month of the date of conviction, but the time for appeal may be extended by the Court. The Court's discretion to extend the time for appeal is unfettered. It will consider 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. Relevant factors include the length of the delay, whether the prospective appeal would be a viable one, prejudice to the respondent, whether the application for an extension of time is made for some collateral and improper purpose and is thus an abuse of process, and whether the applicant made a deliberate decision not to appeal and changed his mind only after serving the bulk of his sentence. See R v Tait [1999] 2 Qd R 667 at 668 and R v DAQ [2008] QCA 75 at paragraphs 8 to 11.

In the present case, the application has been made more than 5 years after the conviction and more than 2 years after the applicant completed serving his sentence. The material contains no explanation for the delay. It may be a fair interpretation of the oral submissions that the applicant was saying that his mental condition has been such that he has been unable to attend to this earlier; that may be being unduly charitable.

The Crown case against the applicant was a strong one. His wife left him about 4 months before the offence. He remained in the former matrimonial home and over the ensuing months telephoned her threatening to kill himself by pouring petrol over himself and setting himself alight. On the day of the offence, he left several telephone messages on his wife's answering service saying that he had found a way to end his life. In the first, he said he was…

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 Warmisham

Details

AGLC: R v Warmisham [2008] QCA 223
Case: [2008] QCA 223
Decision Date: 7 August 2008

CaseChat Overview and Summary

The applicant, William Warmisham, sought an extension of time to appeal his conviction and sentence for arson, which was imposed more than five years earlier. The application was made pursuant to section 671 of the Criminal Code, which allows the Court to extend the time for appeal if it is in the interests of justice to do so. The applicant contended that the verdict was unsafe and unsatisfactory because insufficient weight was given to his mental condition and that he had subsequently been assessed as having a brain injury. However, he did not provide any medical evidence to support this claim. The Crown presented a strong case against the applicant, who had made numerous threats to burn down his house and harm himself, and had been seen running from the burning house. The Court found that the appeal had no prospect of success and dismissed the application for an extension of time.

The legal issue before the Court was whether to grant the applicant an extension of time to appeal his conviction and sentence for arson. The Court's discretion to extend the time for appeal is unfettered, and it will consider whether there is any good reason shown to account for the delay and whether it is in the interests of justice to grant the extension. The Court considered the length of the delay, whether the prospective appeal would be a viable one, prejudice to the respondent, whether the application for an extension of time was made for some collateral and improper purpose, and whether the applicant made a deliberate decision not to appeal and changed his mind only after serving the bulk of his sentence. The Court found that the application had been made more than five years after the conviction and more than two years after the applicant completed serving his sentence, and that there was no explanation for the delay. The Court also found that the Crown case against the applicant was strong and that there was no evidence to suggest that the applicant was unfit to plead or lacked the mental capacity to understand his actions at the time of the offence.

The Court held that the appeal had no prospect of success and dismissed the application for an extension of time. The applicant had not provided any medical evidence to support his claim that insufficient weight was given to his mental condition and that he had subsequently been assessed as having a brain injury. The Court also noted that the sentencing Judge had been provided with a report from a psychologist who assisted the applicant in the present application, but who had not been instructed to provide evidence in relation to the applicant's mental condition at the time of the offence. The Court found that the applicant's complaints about his legal representation were not relevant to the issue of whether the appeal had a prospect of success. The Court concluded that it was not in the interests of justice to grant the extension of time.

Orders