R v Clayton

SUPREME COURT OF QUEENSLAND

CITATION: R v Clayton [2008] QCA 337

PARTIES: R v CLAYTON, Sean Stewart (applicant)

FILE NO/S: CA No 188 of 2008 / SC No 25 of 2003

DIVISION: Court of Appeal

PROCEEDING: Application for Extension (Sentence and Conviction)

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED EX TEMPORE ON: 27 October 2008

DELIVERED AT: Brisbane

HEARING DATE: 27 October 2008

JUDGES: de Jersey CJ, White AJA and McMeekin J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Application dismissed

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE AND CONVICTION – where the applicant was convicted of murder – where the applicant filed an appeal against conviction on 13 October 2003, then on 24 February 2004 filed a notice of abandonment – where the abandonment reflected a deliberate and informed decision on the part of the applicant – where the applicant now seeks to have the notice of abandonment set aside – whether it can be shown to the Court that a setting aside of the abandonment and reinstatement of the appeal would be necessary in the interests of justice / Criminal Practice Rules 1999 (Qld), r 70 / R v Tabe [1983] 2 Qd R 60; (1983) 6 A Crim R 474, applied

COUNSEL: The applicant appeared on his own behalf / D L Meredith for the respondent

SOLICITORS: The appellant appeared on his own behalf / Office of the Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE: On 14 September 2003, the applicant, who represented himself before us today, was convicted of a murder committed on or about 25 November 2001. The applicant is presently 37 years of age.

On 13 October 2003, the applicant filed an appeal against that conviction. That was filed within time. Then on 24 February 2004, he filed a notice of abandonment of that appeal, the notice having been signed by him.

On 16 July 2008 the applicant filed an application for an extension of time within which to appeal against his conviction. The application, as will have been noted, was brought more than five years after the conviction.

Because of the notice of abandonment of the appeal against conviction which was filed on the 24 February 2004, that appeal was taken then to have been dismissed, because of the operation of Rule 70(2) of the Criminal Practice Rules. The Court may set aside that abandonment and reinstate the appeal should that be necessary in the interests of justice because of Rule 70(3). That is an unusual course which would not ordinarily be taken where the abandonment reflected a deliberate and informed decision on the part of the applicant, and was not the result of any misapprehension or mistake of fact (see Tabe [1983] 2 Qd R 60 at 61).

It is appropriate to approach the application for an extension of time on the basis that what the applicant really needs to seek is the setting aside of the abandonment of the appeal which was lodged within time. In determining whether the interests of justice necessitate the setting aside of the abandonment, it is necessary to examine the factual basis for the applicant's present application.

The applicant has affirmed two affidavits dated 2 and 16 October 2008. They related substantially to access to the original master tapes of his records of interview, and witnesses he would seek to call were there a retrial.

Any explanation for the five years' delay is to be found on page 2 of the application to the extension of time. Under the heading “reasons for delay” the applicant asserts, without any particularity, that inadequate assessment of the merit of an appeal preceded his abandonment of the appeal lodged in 2003 within time. He relies also on delay in receiving trial transcripts and a copy of Carter's Criminal Law, which he needed to facilitate his independent preparation of the present application. That is essentially his explanation for his present position notwithstanding it has not been sworn to. He reasserted those matters orally before us today.

That is an insufficient explanation for delay of that magnitude, especially in the context of the applicant's express abandonment of the appeal lodged in 2003. There is no basis for thinking that was other than a voluntary and deliberate abandonment by the applicant, and the interests of justice do not necessitate his now being permitted to withdraw from that abandonment.

In his oral submissions today, the applicant said that he abandoned the appeal on the advice of his Legal Aid Queensland solicitor Mr O'Brien. In other words, he accepted and acted on Mr O'Brien's advice. He says he has now made his own inquiries and believes that he would be acquitted of murder at any retrial.

That is, however, insufficient to warrant setting aside the abandonment but, in strictness, as Mr O'Brien's affidavit shows, Mr O'Brien's advice to the applicant stopped at the communication of the refusal of legal aid on the basis that counsel's advice indicated the appeal against conviction would lack merit. On that basis it was then the applicant's decision to abandon the appeal. He cannot now revisit that decision on the basis he seeks to advance.

The applicant filed an application on the 3 October 2008 for leave to adduce evidence. That presupposed a re-trial, and a granting of the extension of time or reinstatement of the appeal. For the reasons just expressed, there should be no such order. In any event, leave to call the proposed witnesses Green, Byrnes and Mancktellow would not be given for the reasons expressed at pages 5 and 6 of the Crown outline.

The application should, in my view, be refused.

WHITE AJA: I agree.

McMEEKIN J: I agree.

THE CHIEF JUSTICE: The application is refused.