R v WK

SUPREME COURT OF QUEENSLAND

CITATION:

R v WK [2004] QCA 243

PARTIES:

R
v
WK
(applicant)

FILE NO/S:

CA No 110 of 2004
DC No 70 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Cairns

DELIVERED EX TEMPORE ON:

21 July 2004

DELIVERED AT:

Brisbane

HEARING DATE:

21 July 2004

JUDGES:

McMurdo P, Williams JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for an extension of time within which to appeal against conviction granted

2. Time within which to appeal extended until 23 April 2004

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENALDN – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where application convicted of three counts of indecent dealing – where informed solicitors on day of conviction that wanted to appeal – where appeal forms did not reach applicant in prison until day after expiration of time limit – whether an extension of time within which to appeal should be granted

COUNSEL:

E Jeha (sol) for the applicant
M J Copley for the respondent

SOLICITORS:

John Williams & Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The applicant was convicted on 12 March 2004 after a trial of three counts of indecent dealing with a girl under 17 years with a circumstance of aggravation. He was acquitted on one count. On that date he was sentenced to 18 months' imprisonment. He did not file and serve his form 26 appeal against conviction until 22 April 2004, nearly two weeks later than the prescribed time. He now seeks an extension of time within which to appeal against his conviction on a number of grounds.

Uncontested affidavit material before this Court establishes that he indicated to his solicitors on 12 March 2004 that he wished to appeal against his conviction and that he then instructed his solicitors to prepare the necessary documents. He did not receive the form 26 notice of appeal from his legal representatives until 13 April 2004, the day after the expiry of the appeal period apparently because of some unexplained delay on the part of couriers. He then immediately completed the necessary forms and returned them to his legal representatives.

Mr Copley, who appears for the respondent, very fairly, does not oppose the applicant's application, conceding that on the material presently available, it is impossible to assert that the applicant enjoys no prospect of success in the appeal.

In the circumstances, the application for an extension of time within which to appeal against conviction should be granted and the time extended until 23 April 2004.

WILLIAMS JA: I agree.

MULLINS J: I agree.

THE PRESIDENT: That is the order of the Court.

‑‑‑‑‑

CaseChat Overview and Summary

The case of R v WK involved an appeal against the defendant's conviction on three counts of indecent dealing. The appeal was initiated after the defendant informed their solicitors on the day of conviction that they wished to proceed with an appeal. However, the appeal forms did not reach the defendant while they were in prison until the day after the expiration of the time limit for lodging an appeal. The defendant sought an extension of time to lodge their appeal, which was contested by the prosecution.

The primary legal issue for the court to determine was whether an extension of time should be granted for the defendant to appeal against their conviction. The court had to consider the circumstances in which the appeal forms were received by the defendant and whether there were any exceptional circumstances that warranted an extension. The court also needed to assess whether the delay in receiving the appeal forms was due to the defendant's fault or whether there were other factors that contributed to the delay.

In its decision, the court recognised that the defendant had informed their solicitors of their intention to appeal on the day of conviction and had taken prompt steps to initiate the appeal process. The court noted that the delay in receiving the appeal forms was not due to any fault on the part of the defendant and that there were exceptional circumstances that warranted an extension of time. The court granted the defendant's application for an extension of time and extended the time within which to appeal until 23 April 2004. The court found that the delay was not due to any fault on the part of the defendant and that there were exceptional circumstances that warranted an extension of time.

The court's orders were that the application for an extension of time within which to appeal against conviction was granted, and the time within which to appeal was extended until 23 April 2004. The court's decision recognised the importance of ensuring that defendants have access to the appeal process and that delays in receiving appeal forms should not be penalised if they are not due to any fault on the part of the defendant. The court's decision also highlighted the need for the legal system to be flexible and responsive to the needs of defendants, particularly in cases where exceptional circumstances exist.

Orders of the court

1. Application for an extension of time within which to appeal against conviction granted

2. Time within which to appeal extended until 23 April 2004

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	R v WK [2004] QCA 243
PARTIES:	R v WK (applicant)
FILE NO/S:	CA No 110 of 2004 DC No 70 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Cairns
DELIVERED EX TEMPORE ON:	21 July 2004
DELIVERED AT:	Brisbane
HEARING DATE:	21 July 2004
JUDGES:	McMurdo P, Williams JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for an extension of time within which to appeal against conviction granted 2. Time within which to appeal extended until 23 April 2004
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENALDN – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where application convicted of three counts of indecent dealing – where informed solicitors on day of conviction that wanted to appeal – where appeal forms did not reach applicant in prison until day after expiration of time limit – whether an extension of time within which to appeal should be granted
COUNSEL:	E Jeha (sol) for the applicant M J Copley for the respondent
SOLICITORS:	John Williams & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent