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;…

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 Winston

Details

AGLC: R v Winston [1994] QCA 435
Case: [1994] QCA 435
Decision Date: 28/10/1994

CaseChat Overview and Summary

The case of R v Winston involved an appeal against the conviction of the applicant, who was absent from the second day of his trial. The applicant explained his absence by stating that he was ill. Despite his absence, the trial proceeded, culminating in a conviction in August 1991. The applicant claimed that he was informed by his solicitors at the time of his sentencing in September 1991 that he could not appeal against his conviction. It was only recently that the applicant became aware that he had the right to appeal. The court had to determine whether the time for appealing should be extended under these circumstances.

The primary legal issue was whether the applicant's absence from the trial due to illness and his subsequent misinformation by his solicitors constituted exceptional circumstances that warranted an extension of time for appeal. The court needed to consider the applicant's explanation for his absence, the effect of that absence on the trial process, and the applicant's understanding of his legal rights post-conviction. The central question was whether the applicant's claim of being misinformed by his solicitors and his illness should be accepted as a valid reason to extend the time for appeal.

The court found that the applicant's absence from the trial due to illness was a significant factor, but the primary consideration was whether the applicant was misled by his solicitors regarding his right to appeal. The court noted that the applicant's claim of being misinformed was credible, and this, combined with his illness, constituted exceptional circumstances. The court decided that these circumstances warranted an extension of time for the appeal. The court's reasoning was based on the applicant's lack of fault in the situation and the potential injustice of not allowing the appeal due to factors beyond his control.

The court granted the extension of time for the appeal, allowing the applicant to proceed with his appeal against the conviction. The decision recognised the importance of ensuring that justice is not thwarted by circumstances beyond an applicant's control, particularly when those circumstances include a genuine misunderstanding of legal rights and genuine illness.

Orders