R v Templeton[2023] QCA 145

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT: On 22 April 2021, the applicant was convicted on his own guilty pleas of two counts of sexual assault.  That day, he was sentenced to terms of imprisonment of three months and six months, to be served concurrently.  The sentence was suspended with immediate effect for an operational period of two years.  On 7 May 2021, the applicant applied for leave to appeal against the sentence on the ground that it was manifestly excessive.
2. [2]
   On 13 July 2023, the applicant’s application was heard.  The applicant did not appear when his name was called three times.
3. [3]
   At the hearing, the respondent made an oral application for the Court to strike out the application for want of prosecution.  The respondent tendered a “Memorandum of Non-Compliance” (the Memorandum), prepared by the Registry, which was marked as an exhibit.  An order striking out the application for want of prosecution was made at the hearing on 13 July 2023.  These are the reasons for that order.
4. [4]
   The Memorandum and attached correspondence record the following relevant facts:

   1. (a)
      On 2 November 2021, the Registry posted an Appeal Record Book and Listing Letter to the applicant’s residential address.  The letter advised that the application had been listed for 24 February 2022 and that the applicant was to provide his written outline of submissions by 27 January 2022.
   2. (b)
      On 11 November 2021, the Registry received a signed delivery confirmation card, confirming the applicant had received the Appeal Record Book and Listing Letter.
   3. (c)
      On 28 January 2022, the Registry wrote to the applicant via email informing him that his outline of submissions was overdue and directing him to file it as soon as possible.  The applicant was further informed that he could abandon the application or request the 24 February 2022 hearing date be adjourned to a later date.
   4. (d)
      On 1 February 2022, the Registry called the applicant to ascertain his intentions regarding the 24 February 2022 hearing date.  The applicant informed the Registry that he was seeking to have the hearing adjourned on the basis that he was resolving funding issues with Legal Aid.  The applicant was advised to provide written reasons for any adjournment request.  The applicant did so.
   5. (e)
      On 3 February 2022, the Registry provided the Office of the Director of Public Prosecutions (ODPP) with the applicant’s written request for an adjournment of the 24 February 2022 hearing date.
   6. (f)
      On 17 February 2022, the ODPP advised that the Crown consented to the applicant’s adjournment request.  On 18 February 2022, the Registry advised the parties that the Court had adjourned the hearing of the application, so that it was now listed for hearing on 11 July 2022.  The Registry also advised the parties of an updated timetable for filing their material, which required the applicant to file his submissions by 13 June 2022.
   7. (g)
      On 21 June 2022, the Registrar called the applicant to ascertain when he intended to file his outline of submissions.  The applicant advised the Registry that he would be seeking a further adjournment.
   8. (h)
      On 4 July 2022, the Registry called the applicant and advised him that the 11 July hearing date remained listed.  The applicant advised the Registry that he was still working on financial documentation for his Legal Aid application.
   9. (i)
      On 5 July 2022, the Registry wrote to the ODPP expressing concerns about the progress of the matter and suggesting that the matter should be adjourned to a date to be fixed pending the outcome of the applicant’s Legal Aid application.  The ODPP consented to the adjournment.  The hearing was adjourned to a date to be fixed by the Registry.
   10. (j)
       On 29 November 2022, the Registry wrote to the applicant informing him that his application had been assigned a hearing date of 6 March 2023.
   11. (k)
       On 12 December 2022, the Registry posted an Appeal Record Book and Listing Letter to the applicant’s residential address and sent digital copies to the applicant’s email address.  The letter advised that the application had been listed for hearing on 6 March 2023 and that the applicant was to provide his outline of submissions by 6 February 2023.
   12. (l)
       On each of 9, 20, and 28 February 2023, the Registry wrote to the applicant advising that his outline of submissions was overdue and directing him to attend to it as a matter of priority.
   13. (m)
       On 1 March 2023, the Registry advised the parties that the proceeding would be reviewed by Morrison JA on 7 March 2023 due to the applicant’s failure to provide his material.  On 7 March 2023, the matter was reviewed by Morrison JA.  The applicant appeared and informed the Court that he was attempting to contact Legal Aid.  An order was made to delist the hearing listed for 8 March 2023.
   14. (n)
       On 7 March 2023, the Registry wrote to Legal Aid seeking clarification on whether Legal Aid had received a funding application from the applicant and, if so, whether funding had been granted.  On 17 March 2023, Legal Aid responded to the Registry advising that, on 28 June 2022, Legal Aid had refused funding to the applicant due to insufficient financial information.
   15. (o)
       On 27 April 2023, the Registry advised the parties that the application had been assigned a hearing date of 13 July 2023 and informed them of an updated timetable for filing material.  The updated timetable required the applicant to file his submissions by 15 June 2023.  The Registry again emailed the Appeal Record Book to the applicant.  The Registry called the applicant to confirm his phone number, email address, and residential address for communications.
   16. (p)
       On each of 19 and 26 June 2023, the Registry wrote to the applicant advising that his outline of submissions was overdue and directing him to attend to it as a matter of priority.
   17. (q)
       On 3 July 2023, the Registry called the applicant on the phone number confirmed on 27 April 2023.  A male individual answered but said he was not the applicant.
   18. (r)
       On 7 July 2023, the Registry attempted to call the applicant.  The call was not answered.  The Registry left a voice message that the application was listed for hearing on 13 July and that the applicant’s outline of submissions was to be filed.  The Registry received no response.
   19. (s)
       On 10 July 2023, the Registry attempted to call the applicant.  The call was not answered.
5. [5]
   The exercise of the Court’s discretion to dismiss a proceeding for want of prosecution is not fettered by fixed rules.  In Cooper v Hopgood & Ganim,^[1] Pincus JA quoted with apparent approval the observation of Walsh JA (as his Honour then was) in Witten v Lombard Australia Ltd:

“Everything must depend upon the circumstances disclosed in each particular case.  It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory.  It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay.  When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised.”^[2]

6. [6]
   The applicant has not taken any step in the Court to progress his application since filing it on 7 May 2021.  He has failed to file an outline of submissions by the dates fixed by the Registry.  It appears the applicant has not taken any action towards advancing his interest in the application since his request for Legal Aid was refused on 28 June 2022.  The delay before then might be explained as the applicant hoping to obtain a grant of aid to pay for legal advice on the application.  There is no credible or satisfactory explanation for his subsequent inactivity.
7. [7]
   The applicant’s sole ground is that the sentence of three months’ and six months’ concurrent imprisonment, wholly suspended for two years, is manifestly excessive.  For over two years, the Court has afforded the applicant opportunities to file his outline of submissions.  He has failed to do so.  He has failed to articulate any submission to explain why the sentence might be considered excessive.
8. [8]
   The operational period for the suspended sentence has expired.  The applicant has not identified any apparent utility in pursuing an appeal for a lesser sentence.
9. [9]
   The Court has listed the applicant’s application for hearing on four occasions.  The Court has adjourned the hearing on three occasions at the applicant’s request, most recently on 7 March 2023.  The Registry has been in contact with the applicant to advise him of each of the dates for hearing and the dates for providing his outline of submissions.
10. [10]
    The applicant did not seek an adjournment of the most recent hearing date.  His failure to appear is unexplained.  If the applicant had attended the hearing on 13 July 2023, he could have made oral submissions in support of his application.  Had he filed an outline of submissions, the Court could have considered them.  The absence of any written or oral submissions left his application completely unsupported and unable to succeed.
11. [11]
    In the circumstances, the applicant has had reasonable access to the Court and opportunity to seek justice according to law.  His leisurely approach appears to be inconsistent with the reasonable and efficient use of the Court as a public resource.^[3]
12. [12]
    The proceeding should be dismissed for want of prosecution.