R v Witsen - [2008] QCA 31

SUPREME COURT OF QUEENSLAND

CITATION:

R v Witsen [2008] QCA 31

PARTIES:

R
v
WITSEN, Justin
(applicant)

FILE NO/S:

CA No 191 of 2007

SC No 973 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2008

JUDGES:

Muir and Fraser JJA and Mullins J
Judgment of the Court

ORDER:

1.The application for leave to extend the time within which to appeal against the convictions is granted

2. The time for filing the applicant’s notice of appeal against convictions is extended to 20 August 2007

CATCHWORDS:

APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED – where delay of 20 months before applicant applied for extension of time to appeal – where no satisfactory explanation for the delay – where applicant convicted of murder, but principal offenders were subsequently convicted of manslaughter – where possible omissions in the directions given to the jury raised on the application for extension – where prospects of appeal could not be properly established without reference to the evidence – whether interests of justice warrant granting extension

Darkan v R (2006) 227 CLR 373; [2006] HCA 34, considered
R v GV [2006] QCA 394; CA No 190 of 2006, 13 October 2006, followed
R v Iliovski (2002) 135 A Crim R 117; [2002] VSCA 172, distinguished
R v Tait [1999] 2 Qd R 667, followed

COUNSEL:

P E Smith appeared for the applicant
D L Meredith for the respondent

SOLICITORS:

Fisher Dore for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: The applicant applies for an extension of time in which to appeal against his convictions (after trial before a jury) on 17 November 2005 for murder and armed robbery in company with violence.

The applicant did not appeal against the convictions within time. His application for extension of time within which to appeal and notice of appeal was not filed until 20 August 2007, about 20 months out of time.

In accordance with R v Tait [1999] 2 Qd R 667, the applicant needs to address whether there is good reason to account for the delay and whether it is in the interests of justice to grant the extension. It is relevant to consider the viability of any appeal, to the extent that it is possible to make any assessment on the limited materials that are before the court on an application for extension of time. Even if there is no satisfactory explanation for delay, an application to extend the time to appeal may be granted if a refusal to do so could result in a miscarriage of justice: R v GV [2006] QCA 394 at [3].

Facts

The applicant and his girlfriend had been living with the victim. The prosecution case was that the applicant organised for two other men, Brown and another, to attack the victim…

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 Witsen

Details

AGLC: R v Witsen [2008] QCA 31
Case: [2008] QCA 31
Decision Date: 29 February 2008

CaseChat Overview and Summary

The case of R v Witsen involved the appellant, who sought an extension of time to appeal against his convictions for murder. The appeal was heard in the Queensland Court of Appeal. The appellant, who had been convicted of murder, applied for an extension of time to appeal after a 20-month delay, during which time the principal offenders in the case were convicted of manslaughter. The primary legal issue before the court was whether the interests of justice warranted granting the appellant's application for an extension of time, despite the significant delay and the lack of a satisfactory explanation for it. The court also had to consider the potential impact of any possible omissions in the jury directions on the prospects of the appeal.

In determining the application, the court acknowledged the substantial delay and the absence of a satisfactory explanation for it. However, the court recognised that the appellant's prospects of appeal could not be properly assessed without reference to the evidence. The possibility that the directions given to the jury may have omitted crucial elements raised concerns that needed to be addressed in the appeal. Weighing these factors against the appellant's interests, the court concluded that the interests of justice did warrant granting the extension of time. This decision allowed the appellant to present his appeal, ensuring that any potential errors in the trial process were adequately examined.

The court granted the application for leave to extend the time within which to appeal against the convictions. The time for filing the applicant's notice of appeal against convictions was extended to 20 August 2007. This order enabled the appellant to proceed with his appeal, allowing the court to review the trial proceedings and determine whether any errors had occurred that could affect the outcome of the conviction. The court's decision balanced the need for procedural fairness with the importance of ensuring that justice is served in the case.

Orders

Orders of the court

1.The application for leave to extend the time within which to appeal against the convictions is granted

2. The time for filing the applicant’s notice of appeal against convictions is extended to 20 August 2007

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Witsen [2008] QCA 31
PARTIES:	R v WITSEN, Justin (applicant)
FILE NO/S:	CA No 191 of 2007 SC No 973 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	29 February 2008
DELIVERED AT:	Brisbane
HEARING DATE:	18 February 2008
JUDGES:	Muir and Fraser JJA and Mullins J Judgment of the Court
ORDER:	1.The application for leave to extend the time within which to appeal against the convictions is granted 2. The time for filing the applicant’s notice of appeal against convictions is extended to 20 August 2007
CATCHWORDS:	APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED – where delay of 20 months before applicant applied for extension of time to appeal – where no satisfactory explanation for the delay – where applicant convicted of murder, but principal offenders were subsequently convicted of manslaughter – where possible omissions in the directions given to the jury raised on the application for extension – where prospects of appeal could not be properly established without reference to the evidence – whether interests of justice warrant granting extension Darkan v R (2006) 227 CLR 373; [2006] HCA 34, considered R v GV [2006] QCA 394; CA No 190 of 2006, 13 October 2006, followed R v Iliovski (2002) 135 A Crim R 117; [2002] VSCA 172, distinguished R v Tait [1999] 2 Qd R 667, followed
COUNSEL:	P E Smith appeared for the applicant D L Meredith for the respondent
SOLICITORS:	Fisher Dore for the applicant Director of Public Prosecutions (Queensland) for the respondent