R v Lewis [1998] QCA 247

Court of Appeal (Qld)|1998-08-28|Before: Before McMurdo P, Thomas J, Mackenzie J

1. On 24 June 1998 this applicant filed a "Notice of Appeal or Application for Leave to Appeal Against Conviction or Sentence". He had already exercised his right under s.222 of the Justices Act to appeal to the District Court against the conviction and sentence in the Magistrates Court of which he complained. An appeal may be brought to this Court against a District Court decision in its appellate jurisdiction, but only by leave under s.118(3) of the District Court Act 1967, and in any event within the time prescribed for such an appeal or such extension as the Court may grant.

2. It is first necessary to understand the nature of any appeal that relevant legislation might permit the applicant to bring to this Court, and the time within which such a right should be exercised. Some confusion seems to exist in relation to the time within which such an appeal must be brought. The contending views are twenty eight days or one month. The answer depends upon whether the appeal is seen as one under s.118(3) of the District Court Act or one under s.668D of the Criminal Code.

4. The present applicant is not a person convicted on indictment, or a person convicted of a summary offence by the Supreme or District Court under s.651 and has no right of appeal under s.668D. Accordingly the time limit prescribed for such appeals by s.671 of the Code (one month) is not applicable.

5. It follows that the only right possessed by the applicant is to seek leave to appeal against the order of the District Court which dismissed the appeal under s.222 of the Justices Act and which ordered a variation in the sentence that he was to serve. In our view the provision which fixes the time limit for such an appeal is r.334 of the District Court Rules, which prescribes twenty eight days for filing a notice of appeal. There is no time limit prescribed in either s.118 of the District Court Act or r.334 of the District Court Rules for filing an application for leave to appeal, but were such an application to be made outside the prescribed time for commencement of an appeal, at the end of the day good reason would need to be shown for the Court to exercise its discretion to permit the relevant notice of appeal to be filed out of time.[1] The discretions to grant leave and to extend time for filing a notice of appeal are of course exercised on different criteria, and in a case like the present it would be necessary for an applicant to satisfy the Court on both scores before an appeal could proceed.

6. The form used by the applicant in the present matter does not seem appropriate to the applications that he needs to make, but this Court will ensure that he is not disadvantaged on that account. It is as well to mention that the form used in such cases should show that it is an application for leave to appeal against a decision of the District Court in its appellate jurisdiction, and for leave to extend time for filing a notice of appeal. Inter alia it should contain the date of the judgment appealed from.

7. In the event over three and a half months elapsed between the date of the decision in the District Court and the filing of the present notice. In presenting a case to explain his delay the applicant shamelessly attempted to deceive the Court. The applicant swore that Mr Hams and another registry employee named Brad gave him certain advice in the registry office on 29 March 1998. His evidence included:

"I recall 29 March of this year. This particular day was 27 days after I appealed the original matter in the District Court and it was my understanding - I actually presumed that there would be a 28 day limit upon appeals to the next Court and so on this particular day I decided to attend the registry of the Court of Appeal to find out what notices I needed and what-have-you, what procedure I need to follow to instigate an appeal to this Court. Now, I recall speaking with Mr Alex Hams and another registry staff person who I understand his name is Brad on this particular day. Now, I actually explained to I believe Brad and Mr Hams that I was in a hurry to submit my documentation that I was of the understanding that the following day was the time limit to submit my appeal. ... I came to the understanding from the conversation that I had with Brad and/or Mr Hams that there wasn't any set time limit to appeal to this Court, ...."

8. It turns out that 29 March 1998 was a Sunday, and Mr Alec Hams gave sworn evidence denying any such conversations with the applicant. He stated that Brad did not commence working in the registry until late June or early July 1998. In attributing such statements to Mr Hams and Brad at times when neither of them could have been present, the applicant was obviously prepared to say anything that he thought might assist him to bring an appeal.

9. The applicant was originally sentenced to six months' imprisonment for the offence of breach of domestic violence order in the Brisbane Magistrates Court on 9 October 1997. He was granted bail pending appeal. When the appeal judgment was delivered on 2 March 1998 a warrant was issued for his arrest. He remained at large until he was arrested on that warrant on 16 June 1998. He contacted Legal Aid and lodged this application for extension of time within which to appeal on 24 June 1998.

10. In his Notice of Application for Extension of Time within which to Appeal (Form IV) the appellant has written "I was advised by the Court of Appeal registry staff in October 1997 that there was NO time limit for appeals to this court". (Italics added)

11. The applicant has eight previous breaches of domestic violence orders.

12. The inconsistent allegations made by the applicant in his Form IV Notice of Application, his initial insistence that this occurred on 29 March, a Sunday, and the fact that Brad was not employed in the Registry at this time make his version inherently improbable. It is much more probable that the applicant was not interested in lodging his appeal until he was arrested on the outstanding warrant on 16 June 1998. This is consistent with the lodgment of this application on 24 June 1998. Clearly the evidence of Mr Alec Hams is to be preferred to that of the applicant. Indeed, there is overwhelming evidence suggesting that he lied under oath and it would seem appropriate that the papers be referred to the Attorney-General so that suitable action may be taken.

13. No ground is shown for extending time, and his application in that respect should be refused.

14. The applicant also needs the leave of this Court under s.118(3) of the District Court Act to bring the proposed appeal. He has already received a trial before a Magistrate where the issues were tested at some length and he has had the benefit of an appeal to the District Court where consideration appears to have been given to the points that he then wished to raise.

15. His submissions to this Court were substantially a revisitation of arguments on questions of credit, alleged inconsistencies, and points already argued below and found against him.

16. There is nothing in the arguments which he developed before us which would justify the grant of leave to appeal against conviction and this application should be refused.

17. He also sought leave to appeal against sentence.

18. The applicant was originally sentenced to six months' imprisonment. This sentence was varied by the District Court Judge by giving a recommendation for parole after two months. The applicant had eight prior breaches of domestic violence orders. Although this breach was minor, with those prior breaches the sentence imposed is well within the appropriate range. His application for leave to appeal against sentence should be refused.

19. The applicant also applied for leave to call further evidence from Sergeant Priestley, the complainant Ms McCormack and Senior Constable Enzinger, all called at his trial in the Magistrates Court.

20. He also applied to call Mr Gadsby of National Mutual Health Insurance, the employer of the complainant, to establish that on the day the breach occurred work records indicate the complainant left her place of employment at 5 p.m., therefore making it impossible for her to be on the train where the incident constituting the breach of domestic violence order occurred at 4.55 p.m. It would not necessarily be unusual for an employee to sign off at "5 p.m." but in fact leave earlier to catch a train at 4.55 p.m.

21. The applicant wished to cross-examine the complainant as to the time the complainant says the incident occurred on the basis of a railway timetable. It is notorious that trains do not necessarily closely follow their timetable.

22. The applicant, who is confident and articulate, cross-examined the witnesses at the trial at considerable length. Although he was then in custody, he has not satisfied us that this in any real sense impaired the preparation of his defence, or that the evidence which he now seeks to call may have significantly affected the finding of facts made by the magistrate. The evidence foreshadowed by him is neither fresh nor cogent. His application for leave to call further evidence should be refused.

23. The application for extension of time within which to appeal is refused.

The applications to call further witnesses are each refused.

We also direct that the Registrar forward relevant papers in relation to the applicant's conduct and evidence in this Court to the Attorney-General with a request that appropriate action be considered.

We order that a warrant issue for the return to custody of the applicant.

[1] RSC O.70 r.34; O.90 r.6; Supreme Court of Queensland Act 1991 s.29(1), 29(3); RSC O.70 r.37.

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