R v Wilken Summary | CaseChat AU

[1995] QCA 449

COURT OF APPEAL

FITZGERALD P
MOYNIHAN J
THOMAS J

CA No 250 of 1995

THE QUEEN

MAURICE JAMES WILKEN

BRISBANE

..DATE 21/08/95

JUDGMENT

THE PRESIDENT: Yes, in this matter the Court proposes to grant an extension of time within which the applicant can bring his application for leave to appeal against sentence. The extension will be until the day upon which the application was in fact filed.

It is not proposed to go into the reasons in any detail, since the matter will have to come before the Court on a subsequent occasion when the Court is likely to be differently constituted, but the basic reason for granting leave is to enable a decision to be made by the Court in relation to some of the findings which were made by the sentencing Judge to see if those findings were appropriate, having regard to the statutory context and the offence with which the applicant had been charged.

The order of the Court is as I have indicated. Application for an extension of time within which to bring the application for leave to appeal granted until the day upon which the application was made.

Mr Wilken, do you understand what I have said?

APPELLANT: Yes, Your Honour.

THE PRESIDENT: You have got through what is really the first - got over the first obstacle. It does not mean you are going to win, it means that you live to fight another day. Do you understand?

APPELLANT: Yes.

THE PRESIDENT: There is really, arguably, a point of law involved in all this and you might be well advised, although it is a matter for you, to renew your application for legal aid. If you do not get it, then you will be expected to deal with the matter yourself and, as I say, it has got a point of law involved, that is, if you do not get legal aid or some other legal assistance. The Court is not expressing any opinion on this occasion on the merits of the sentence which was imposed upon you. It is simply indicating that there is a point to be argued and it is giving you an extension of time so that that point can be argued and disposed of in due course. Do you understand?

APPELLANT: Thank you. Yes.

THE PRESIDENT: Yes, very well. Yes, I will mention, although not necessarily in a way which will be entirely accurate and comprehensive, that those aspects of the findings which the Court is concerned to a sufficient extent to permit the time to be extended are those which relate to the possibility or an intention on the part of the applicant to sell the heroin of which he was found in possession, given the nature of the offence as it was charged and, of course, the statutory provisions in the Customs Act upon which the charge is based, so that if you do apply for legal aid, those remarks may help you, although, of course, it will not be for the Court, but for the Legal Aid Office as to whether you get legal aid.

Yes, very well. The order of the Court is as I have indicated. Application for an extension of time within which to bring an application for leave to appeal against sentence extended to the date upon which the application was filed.

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The case of R v Wilken before the Queensland Court of Appeal involved Maurice James Wilken, who sought an extension of time to apply for leave to appeal against his sentence. The appeal related to Wilken's conviction and sentencing under the Customs Act for possession of heroin with intent to sell. Wilken's initial application for leave to appeal was filed late, prompting the need for an extension to permit a thorough examination of certain findings made by the sentencing judge.

The legal issues before the Court included whether the extension of time should be granted and, if so, under what conditions. The Court had to consider the merits of the application and whether the late filing was excusable, while also addressing the substantive findings made by the sentencing judge regarding Wilken's intent to sell the heroin. The Court's decision hinged on whether the findings were appropriate in light of the statutory context and the specific charges Wilken faced.

The Court granted the extension of time, allowing Wilken to file his application for leave to appeal. The President emphasised that the extension was not an indication of the Court's view on the merits of the sentence but rather an opportunity to argue the legal points concerning the sentencing judge's findings. The Court highlighted the importance of Wilken's intent to sell the heroin, given the statutory provisions under the Customs Act, and suggested that Wilken consider reapplying for legal aid to assist in his appeal.

The final order of the Court was to extend the time for Wilken to bring his application for leave to appeal until the date the application was originally filed. The President advised Wilken that obtaining legal aid would be prudent, given the legal points at issue, and emphasised that the extension did not guarantee success in the appeal but merely allowed Wilken another opportunity to contest the sentence.

R v Wilken

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