R v CAP [2014] QCA 247

The applicant applied on 8 July 2014 for an extension of time to appeal against the conviction for the 13 offences to which he pleaded guilty and the sentences.

The applicant has already had a hearing on the merits of an application for leave to appeal against sentence. Although the application that was before this Court in 2009 was strictly an application for an extension of time to seek leave to appeal against sentence, Jones J (with whom the other members of the Court agreed) at [5] was disposed to grant an extension of time to seek leave to appeal the sentences generally, as at that stage, the delay in bringing the application was relatively short, an explanation had been given for the delay and the length of the sentences justified granting the extension.

After considering the merits, Jones J held (at [34] - [35]) that the application to appeal the sentences was unsuccessful. The formal order made by the Court merely dismissing the application to extend the time to appeal against sentence did not reflect the substance of the judgments.

This Court held in R v Upson (No 2) [2013] QCA 149 that there is no jurisdiction for the Court to entertain a further application for leave to appeal against sentence when the Court has previously refused an application for leave to appeal against sentence in the same matter on the merits.

It is arguable that, as the record of this Court shows, there has not been a determination of the earlier application for extension of time for leave to appeal against sentence on the merits, the decision in Upson should not be applied. As a matter of discretion, however, the applicant should not be given a further opportunity to argue the merits of the sentences, when this Court has given him a full hearing on the merits of his sentences and concluded that he cannot succeed in an appeal against the sentences. On this basis, I would refuse the application for an extension for leave to appeal against sentence.

The applicant's 2008 application for an extension of time to appeal against the conviction for the 13 offences was not pursued on the merits. Although the applicant's material in the form it presently takes fall far short of material that would justify an extension of time to appeal against the conviction, the material foreshadows a claim of duress in relation to the guilty pleas and that the appeal would be pursued on the basis that the pleas of guilty involved a miscarriage of justice.

If the applicant wishes to pursue such an application seriously, the application needs to be adjourned for the applicant to obtain appropriate advice and assistance in obtaining the affidavits to enable the Court to embark on a proper hearing of the application for extension of time to appeal against conviction.

1. Refuse application to extend time for leave to appeal against sentence.

1. Adjourn application to extend time to appeal against conviction to a date to be fixed.
2. Direct that Mr CAP file and serve any affidavit in support of that application by 23 October 2014.

HOLMES JA: Mr CAP, what all that means is you've still got the application for an extension of time to appeal against conviction for the argument you want to make about your guilty pleas. If you want us to consider it, you've got three weeks to put in an affidavit. You'll have to get some help and get that organised. You know what you want to say. It's a matter of putting it in the right form. Do you understand that?

HOLMES JA: All right. Thank you. We'll adjourn.