R v Bates[1999] QCA 225

COURT OF APPEAL

PINCUS JA

DAVIES JA

DEMACK J

BRISBANE

DATE 16/06/99

JUDGMENT

PINCUS JA:  These reasons relate to the application by Gregory Ralph Bates, which was heard this morning. 

This is an application of an extension of time within which to give notice of appeal against conviction.  The applicant was convicted in September 1997 of manslaughter and arson committed in 1996.  He appealed to this Court and was represented by senior counsel.  The appeal was dismissed, the reasons being given by Mr Justice Davies.  His Honour explained in those reasons that on the night of 18 December 1996 a house at Woolloongabba was burnt down and a man was killed in the fire.   The applicant was spoken to by police and ultimately admitted to having set fire to a settee under the house.  It appears he also admitted that he then left and that after he left he saw the house was alight. There was some evidence of use of an accelerant to start the fire and evidence that the fire had commenced at a place other than that designated by the applicant.  In the written outline submitted on behalf of the applicant it is said that he was unaware of his right to appeal.  This is not credible since he in fact appealed and his appeal was heard and determined.

The grounds upon which the application is based are that the Judge should not have let in confessional evidence, that the evidence failed to prove arson, that the police failed properly to caution the applicant and that, "The evidence is inconsistent with the charges."  All of these grounds were available in 1997.   In the course of his submissions today, Mr Bates produced a number of documents which have been studied during the adjournment.  The principal point which is made in those documents by Mr Bates is in substance that had he given evidence below, which he did not, he would have been able to say that the confessional evidence which was adduced against him was produced by malpractice on the part of the police.  He also makes other points of a legal character, but that seems to be his essential contention.  It is also argued that there was inconsistent evidence in respect of forensic matters. 

If an extension were granted, then, it would appear that Mr Bates would wish the matter to be retried to enable him to run a line of attack which, whether or not it was run below, was there unsupported by evidence.  There is of course a question whether this Court has jurisdiction to hear a second appeal and authorities relevant to that point are to be found in Pettigrew [1997] 1 QdR 601 and in Mrsic, CA No 354 of 1998, 2 December 1998.  It is unnecessary to say anything further about that topic, since it is plain that what the applicant wishes to do is to obtain an extension of time to re-run the appeal which was dismissed in 1997; the purpose of re-running the appeal is principally, as it seems to me, to explain what evidence he could have given had he given evidence below.  If there were any discretion to allow this to occur, it would plainly not be properly exercised in favour of this applicant. I would therefore dismiss the application. 

DAVIES JA:  I agree.

DEMACK J:  I agree.

PINCUS JA:  The application for an extension of time is dismissed.