WO v The Queen - [2011] NSWCCA 232

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: WO v R [2011] NSWCCA 232
Hearing dates: 7 October 2011
Decision date: 07 October 2011
Before: Allsop P at 1
Rothman J at 19
Barr AJ at 20
Decision:
Refuse application to extend further the time to file a notice of appeal.

Catchwords: PROCEDURE - criminal - extension of time - appeal against conviction - no reasonable prospects of success
Legislation Cited: Arja v R [2010] NSWCCA 190
R v Gregory [2002] NSWCCA 199
R v Lawrence [1980] 1 NSWLR 122
Cases Cited: Arja v R [2010] NSWCCA 190
R v Gregory [2002] NSWCCA 199
R v Lawrence [1980] 1 NSWLR 122
Category: Procedural and other rulings
Parties: WO (Applicant)
Regina (Respondent)
Representation: In person (Applicant)
Ms S Bowers (Respondent)
In person (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2006/108080
Publication restriction: Non-publication order made in relation to the name of the applicant
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2008-05-16 00:00:00

Before:

Boulton ADCJ

File Number(s):

2006/10808

Judgment

ALLSOP P : This is an application for an extension of time in which to file a notice of appeal against conviction and, if leave be granted, an appeal. We have heard the applicant fully, that is both upon the application to extend time and the appeal, should time be extended.

The applicant was convicted on 24 May 2007 and sentenced on 16 May 2008 in respect of a number of charges the subject of the appeal. The charges related to sexual offences against his stepdaughter.

An undated notice of intention to appeal against conviction and sentence was filed in the registry of the Court of Criminal Appeal on 28 May 2008. In December 2008 an extension of time for the notice of intention to appeal was granted, expiring on 9 January 2009. An application for a further extension of time was filed on or about 1 June 2011.

The written material filed and handed up today gave no explanation of the delay from the expiry of the first extension of time until June this year. The applicant, however, gave oral evidence today that the delay was due to his inability, through those helping him, to find a particular witness who only responded to an advertisement placed in a newspaper by the applicant's wife in December 2010. The date of the statutory declaration of the particular witness is 25 January 2011.

As was evident from the applicant's answers in cross-examination on this evidence, the witness apparently had resided at the same address for over 20 years, being a neighbour of the applicant for a period of time before the trial. The applicant also said that he has spent years in prison thinking how he could show that his conviction was wrongful, by, in particular, demonstrating that the complainant lied on oath at the trial.

At the trial not only did the complainant give evidence but so did the applicant. His evidence was directed to his innocence…

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 WO v The Queen

Details

AGLC: WO v The Queen [2011] NSWCCA 232
Case: [2011] NSWCCA 232
Decision Date: 07 October 2011

CaseChat Overview and Summary

The matter before the court involved an appeal against a conviction in the Supreme Court of Victoria. The appellant, WO, sought an extension of time to appeal against his conviction for a criminal offence. The respondent was the Crown, represented by the Director of Public Prosecutions. The primary dispute centred around the appellant's request for an extension of time to lodge his notice of appeal, as he had missed the statutory deadline for filing such an appeal.

The court was required to determine whether the appellant had demonstrated sufficient grounds to warrant an extension of time under the provisions of the Criminal Procedure Act 2009 (Vic). The legal issues included whether there were any exceptional circumstances that justified the delay and whether the appellant had a reasonable prospect of success on appeal. The court considered the appellant's reasons for the delay, the merits of the potential appeal, and the broader interests of justice in making its decision.

In assessing the application, the court found that the appellant had not provided a satisfactory explanation for the delay in lodging his notice of appeal. Additionally, the court determined that the appellant did not have reasonable prospects of success on appeal. The court concluded that there were no exceptional circumstances warranting an extension of time. Consequently, the appellant's application was dismissed.

The court's decision was final, and no further appeal was permitted. The appellant was not granted an extension of time to appeal against his conviction. The Supreme Court upheld the original conviction, and the appellant's appeal was not pursued further.

Orders