R v Winston

[1994] QCA 435

IN THE COURT OF APPEAL [1994] QCA 435

SUPREME COURT OF QUEENSLAND

C.A. No. 368 of 1994

Brisbane

[R. v. Winston, Ira]

T H E Q U E E N
v.
IRA JOHN WINSTON

Applicant

Pincus J.A.
McPherson J.A.

Derrington J.

Judgment delivered 28/10/94

Joint reasons for judgment of Pincus J.A. and Derrington J., McPherson J.A. separately. All concurring as to the order to be made.

APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL

REFUSED.

CATCHWORDS:	APPEAL AND NEW TRIAL - extension of time - applicant absent from second day of his trial - applicant explained absence by saying he was sick - trial proceeded in applicant's absence, leading to conviction in August 1991 - applicant argued he had been informed by solicitors at time of sentence in September 1991 that he could not appeal against conviction - applicant said he only became aware this year that he could have appealed against conviction - whether time should be extended
Counsel:	Applicant appeared for himself Mr D. Bullock appeared for the respondent
Solicitors:	Director of Prosecutions for the respondent

Hearing date:24/10/94

REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered the 28th day of October 1994

I agree with the joint reasons of Pincus J.A. and Derrington J. which I have had the advantage of reading.

It is perhaps worth emphasising that both in this case and in R. v. Stuart and Finch [1974] Qd.R. 297, the trial had in fact begun before the accused made it impracticable to continue the proceedings in his presence. Whether s.617 of the Criminal Code would be capable of applying before that time is perhaps a different question.

The application should be dismissed.

JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND DERRINGTON J.
Judgment delivered 28/10/94

This is an application for an extension of time within which to appeal against conviction. The application is dated 9 September 1994, more than three years after the date of the conviction which was entered on 2 August 1991. The conviction,

which produced a sentence of six years' imprisonment, was for the offence of misappropriation of property under s. 408C(2) of the Criminal Code.

The unusually lengthy gap in time between conviction and the commencement of these proceedings would ordinarily be decisive against such an application. The proposed grounds of appeal are that the judge erred in allowing the trial to proceed in the applicant's absence and that the judge should have adjourned the trial, to allow the applicant to obtain legal representation and to allow him to arrange for the attendance of some witnesses he wished to call.

The applicant is a well-educated man who argued his application confidently and succinctly; the impression he created is that he has considerable ability in understanding legal issues, at least for one with no formal legal training. This is material to the basis on which the application is brought, which is that the applicant understood that he could not appeal against his conviction earlier because he was out of time; he says his solicitors so advised him.

The Court has before it part of the transcript of the 1991 trial as well as two sets of reasons for judgment on applications for leave to appeal against sentence; some account should be given of the history of this matter so far as revealed by those documents. On Thursday, 1 August 1991 the applicant appeared in the District Court on two indictments only one of which, the charge of misappropriation of which he was ultimately convicted, was proceeded with. The applicant appeared for himself and applied for an adjournment on the ground that some witnesses he wished to call were unavailable. On being asked by the judge whether he had two previous adjournments of the trial for the same reason the applicant agreed that he had but explained that there had been difficulty in contacting the witnesses. The judge then mentioned that the case had been set down for trial nearly six months before and the applicant agreed. Discussion then occurred as to the nature of the evidence the witnesses being spoken of might give, at the conclusion of which the judge refused an adjournment, telling the applicant among other things that he was a reluctant litigant who wanted to postpone the trial indefinitely. It seems clear that his Honour treated the applicant as a time- waster whose word could not be relied on.

It appears that the trial then proceeded but on the following day, as the transcript discloses, the applicant contacted the Court by phone to say that he had suffered from severe headaches and felt unable to attend Court. The applicant's name was called three times and he did not appear, whereupon the judge ordered that a warrant issue for his arrest.

Nevertheless, the judge proceeded with the trial and it was concluded on that day in the applicant's absence; there was a conviction, as we have said.

Some six weeks later, on 12 September 1991, the applicant appeared on sentence, again not legally represented. There was some discussion about events at the trial and the applicant told the judge that he had been "genuinely ill" on Friday, 2 August 1991. He added that he was not ill "on the following morning, though, but I had by the Saturday panicked about the situation and did abscond". The "following morning" appears to be that of Saturday, 3 August 1991.

The applicant applied for leave to appeal against his sentence which was as we have mentioned one of imprisonment for six years and that application was heard in the Court of Criminal Appeal on 4 December 1991; it was dismissed; in the reasons of Thomas J., who presided in the Court of Criminal Appeal, it is said that:

"During the trial the applicant absconded and was convicted in absentia. He was sentenced only after being brought back pursuant to a bench warrant."

The same matter was mentioned again, in this Court, when on 31 March 1994 the applicant applied for leave to appeal against sentence in respect of a number of offences of dishonesty of which he was convicted on 3 December 1993. That application was dismissed and in the reasons one finds mention of the fact that the applicant had been absent when his 1991 conviction was entered. Some complaint had been made by the applicant on that subject; the reasons say in effect that if the applicant wished to do anything about the 1991 conviction he would have to take advice. However the Court did not say that it was impossible for the applicant to take any steps about the 1991 conviction and it is necessary to note that the present application was not made until some five months after the reasons just mentioned were delivered in the applicant's presence.

In our opinion the assertion that the reason for the long delay in seeking to challenge the 1991 conviction is a misapprehension of law on the applicant's part is implausible. When the 1991 sentence was attacked in the Court of Criminal Appeal the applicant was represented by counsel and the circumstance that the conviction occurred in his absence was discussed briefly, as it was in March this year, as just mentioned. It appears to us highly likely that if the applicant was genuinely interested in challenging his 1991 conviction he would have taken some step to do so, long ago. We are of the view that the Court should not accept that the applicant has until very recently understood that this Court has no power to extend time for appealing against conviction.

It has been explained that there were three grounds put forward as bases of the proposed appeal. It is desirable briefly to discuss one of them, namely the ground that the applicant was wrongly convicted in his absence. The reason for doing so is that it is generally unlawful to conduct a criminal trial in the absence of an accused and such proceedings are ordinarily invalid: Lawrence (1933) A.C. 699 at 708. This principle is reflected in s. 617(1) of the Criminal Code but that is subject to an exception in subs. (2). These two provisions are as follows:

"617. Presence of accused. (1) Subject to this section the trial must take place in the presence of the accused person.

(2) If an accused person so conducts himself or herself as to render the continuance of the proceedings in the person's presence impracticable, the court may order the person to be removed and may direct the trial to proceed in the person's absence."

Subsections (3) and (4) make further provision for proceeding in the absence of an accused but are not presently relevant; if the applicant's trial was lawfully conducted on the second day in his absence, that was done under s. 617(2).

At first impression s. 617(2) might be thought to apply only where the conduct grounding the Court's order occurs in court, but it has been decided that the provision has a wider application: Stuart and Finch (1974) Qd. R. 297 at 311, 341. That case decides that the Court can act under s. 617(2) where an accused, either at the trial or not at trial, "has so conducted himself as to render the continuance of the proceedings in his presence impracticable" (311) or voluntarily absented himself (341). Here the applicant absented himself on the ground of illness, although he produced no evidence that he was ill. According to his statements to this Court he had a substantial sum available for his defence; so that it seems clear that he could have arranged to be represented on the second day, to ask that the trial be adjourned. The judge treated the case as one which the applicant had voluntarily absented himself and it seems impossible now to hold that his Honour was wrong in doing so. In our opinion a more prudent course would have been to adjourn the trial briefly, so that further enquiries could be made and attempts made to inform the applicant that the judge had in mind proceeding in his absence; but as we have indicated we are of the opinion that time should not be extended after such a long delay, with a view to determining whether, in the exercise of his discretion or any other respect, the judge erred. As has been noted, the applicant does not dispute that he absconded but claims that it was on Saturday, 3 August, not Friday, 2 August 1991 that he did so.

We would dismiss the application.