SUPREME COURT OF QUEENSLAND

1. THE COURT:  The applicant, who is self-represented, was convicted on 7 July 1999 of one count of unlawful assault occasioning bodily harm whilst in company and armed with a wooden club and one count of entering a dwelling house with intent.  On 8 July 1999, he was sentenced to 18 months imprisonment to be suspended after four months and three years imprisonment to be suspended after six months respectively.  In each case, the operational period was four years.

2. He now applies for an extension of time within which to appeal against his conviction and sentence.

3. In an unsworn letter to the Deputy Registrar (Appeals), the applicant claims that on the day of his sentence, 8 July 1999, he asked his barrister to appeal on his behalf.

4. He commenced serving his sentence in the Rockhampton Correctional Centre and heard nothing more until Friday, 30 July 1999 when he received a letter from his solicitor. The letter advised that his co-accused's barrister believed the applicant and the co-accused may have a ground of appeal relating to the identification evidence at trial, although the applicant's barrister was less optimistic. The letter further advised:

"… the decision as to whether you wish to appeal is up to you.  We advise that an appeal must be lodged within 28 days from the date that the jury returned their verdict.  We would have to lodge the Notice of Appeal by the 2nd August 1999.  Therefore, we require your urgent instructions as to whether you wish us to lodge an appeal.

We note that your sentence of six months was extremely good in the circumstances.  We must advise you that there is a possibility that if we appeal the decision of Judge Forde then the Director of Public Prosecutions may lodge a cross appeal in relation to your sentence.

After considering these matters could you please urgently advise us as to your decision.  If you want to discuss these matters please do not hesitate to contact Ms Nilsson of our office."

5. It should be noted the time for appeal against conviction is one calendar month from the date of conviction;^[1] the appeal against conviction was in fact required to be lodged by 7 August 1999 and the application for leave to appeal against sentence by 8 August 1999.

6. Despite his solicitor's request in the letter for urgent instructions, the applicant made no further contact with his solicitors although he could have telephoned them on 2 August had he wished to pursue his appeal. He claims he did not contact his solicitors as he owed them money.

7. A reasonable inference from these facts is that the applicant initially decided not to appeal.

8. On 3 August 1999 he was advised that the Attorney-General had appealed against the leniency of the sentence imposed upon the applicant; on receipt of this news the applicant decided he would appeal.

9. The applicant did not contact his former solicitors but on 4 August 1999 asked for legal advice; he was not granted an interview with Legal Aid until 20 August 1999. His notice of appeal, which was against conviction only, and his application for extension of time were dated 24 August 1999 and were received in the Registry on 30 August 1999; they were therefore 23 days late.

10. At the hearing for the first time he indicated he also wished to appeal against his sentence; his failure to do so earlier was an oversight on his part.

11. The grounds of appeal which the applicant would wish to argue were his application for an extension of time granted are:

. that the identification directions to the jury were inadequate as it was not suggested there was a flaw in the identification because the complainant witness was on medication;

. that the solicitor who had prepared his case was absent during the trial and many important points were overlooked;

. that there was no physical or forensic evidence linking the applicant with the victim;

. that there was no physical or forensic evidence that anyone was in the victim's house on the night of the alleged offences;

.  that the victim was proved dishonest during the trial.

In addition, he claims he was at his home at the time the offence occurred and could have called witnesses to support his evidence; at his trial he gave evidence and called his neighbour to give evidence to this effect.  No doubt he would also claim the sentence was manifestly excessive.

12. Although there is no record available, a copy of the judge's summing up was attached to the applicant's submissions; it demonstrates that many of the complaints raised by the applicant in his proposed grounds of appeal were fully aired at the trial and were determined by the jury against him.

13. The complaint the applicant makes about his solicitor does not establish an incompetent or improper defence depriving him of a significant possibility of an acquittal: see R v G.^[2]

14. As to the identification issue, the case was one of recognition rather than identification. Whilst the record is not available, the transcript of the summing up shows that there was some evidence that the complainant had taken an unspecified amount of unidentified anti-depressant medication. There was no evidence that this medication affected the brain processes responsible for identification or memory. In those circumstances, the trial judge seems to have correctly told the jury not to speculate and refused to isolate the fact that the complainant was on an unknown dosage of an un-named anti-depressant medication as a weakness or potential weakness of his identification. Otherwise the directions given as to identification by the trial judge appear unexceptional.

15. Without finally determining these issues in the absence of a full record, a consideration of the proposed grounds of appeal and a reading of the summing up does not suggest there has been a miscarriage of justice. Nor do the sentences imposed appear to be manifestly excessive.

16. Furthermore, the applicant has failed to give a fully satisfactory explanation for the delay in lodging his notice of appeal in circumstances where he was advised that he must do so by a date within the appeal period. Furthermore, although the applicant has explained the circumstances giving rise to his failure to appeal in time, it cannot be said that this was entirely due to the fault of others or that he was not ultimately personally responsible for the failure.

17. We would refuse the application to extend time.