DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant filed a Notice of Appeal and a Notice of Application for Extension of Time for filing Notice of Appeal on 12 September 2008, pursuant to the Justices Act 1885 ("the Act").

THE CHARGE AND CONVICTION

2. [2]
   The Appeal is against the appellants’ conviction and sentence on 20 October 2000 in the Magistrates Court at Townsville for an offence of breaching s 49(1)(b) of the Student Assistance Act 1973 knowingly obtaining payment of Abstudy which was not payable, committed between 14 March 1998 and 3 June 1998.

3. [3]
   The appellant was convicted and released on a Good Behaviour Recognisance (s 20(1)(a) Crimes Act 1914 (Cw)) and placed on probation for 24 months.  He was ordered to pay $1,339.62 reparation and $58.00 court costs. 

4. [4]
   There were originally a series of charges made against the appellant: two on a Complaint and Summons made on 12 April 2000 and fifteen on a Complaint and Summons made on 19 October 2000. The latter complaint dealt with a series of alleged offences said to have been committed between 3 March 2007 and 5 June 2008.

5. [5]
   The appellant pleaded guilty to the second of the two charges made on 12 April 2000, namely:

"Charge 2

Between the Fourteenth day of March 1996 and the Third day of June 1998 at Townsville in the said State, JOHN WILLIAM PAIWAN did, contrary to Section 49(1)(b) of the Student Assistance Act 1973 as amended, knowingly obtain payment of an amount under the said Act, which was not payable.”

6. [6]
   The first of the two charges was dismissed on 20 October 2000 upon the prosecution offering no evidence. The fifteen charges on the Complaint and Summons made on 19 October 2000 were similarly dismissed "as at 20.10.00" and the appellant was discharged on 15 August 2001.

THE ISSUE

7. [7]
   It will be immediately apparent that the appellant is confronted by two significant difficulties. Firstly, he pleaded guilty to the charge upon which he was convicted; and secondly, he has filed his Notice of Appeal outside the time limited for an Appeal, about eight years late.

BACKGROUND

8. [8]
   The appellant, despite the failure or omission to file a Notice of Appeal within the time (putting aside for the moment the issue that his Appeal is against a conviction upon a plea of guilty), has been quite litigious about this matter. He has, it seems to me, become quite obsessed with the matter which he feels has unfairly impacted on his life in the past eight or more years. He articulates a sense of injustice that I accept he genuinely holds. I will have something to say about that further in this judgment.

9. [9]
   The appellant was not legally represented on the Appeal hearing or the preceding directions hearings. His submissions on the Appeal canvassed a broad range of legal and quasi legal political pronouncements. He was not - frankly and to be fair, unsurprisingly - able to focus on the material legal hurdles that his Appeal had to overcome if it was ever going to be successful. Hence in order to do proper and transparent justice to the appellant's case, it is necessary for me to deal with it at some depth and beyond that which might otherwise be the case given the two significant issues which confront the Appeal.

THE FACTUAL CIRCUMSTANCES OF THE CHARGE

10. [10]
    The applicant had applied for Abstudy and had enrolled at a course at TAFE. He allegedly did not attend the course. He switched to another course, a course in hospitality and did attend that course until 13 March 1998. Thereafter he did not attend any study. A course of "study" is one of the prerequisites to be entitled to a payment of that benefit. It appears that where a person does not enrol and does not attend or, does enrol but fails to attend, in each case that person is deemed to not have studied and therefore to be not eligible for the benefit.

11. [11]
    It was submitted by the respondent that the appellant admitted in an interview with officers of Centrelink that he did not or probably did not advise Centrelink that he had not studied beyond the date referred to. It was further submitted by the respondent that the appellant in submissions made to me, had conceded that he did not continue studying. Indeed, it was said that the appellant made a case of having had other obligations - primarily related to family - which he gave priority to: that is, that he had to pay for rent and properly provide for his family that by implication the Abstudy payments gave him the capacity to do that.

12. [12]
    The respondent submitted that insofar as the detail of the admissions made by the appellant in the interview were concerned, he had said a number of things against interest, namely: he said that he had been forced to stop studying in 1998 because he had been served with a Notice to remedy a breach for unpaid rent; he had to find a job to pay the arrears of rent; when asked if he had advised the Student Assistance Centre that he had ceased studies, he had told them, "Well, at the time I wasn't going to cease study but, no but I didn't notify the Student Assistance Centre". He was asked if he continued to receive Abstudy even though he was no longer doing the course of study and he replied that this was correct; he said that he had finished a heritage course that he was enrolled in in the first instance; and that he had switched over to another course. He had said that he did attend the course and that he had done so for about two months. He said that he did not think that he had finished that course. He had agreed that he understood that if he had given notice that he was no longer studying, his Abstudy payments would have stopped. Finally, he had said that he had received Abstudy payments but that he was entitled to receive.

THE GROUNDS OF APPEAL

13. [13]
    The grounds of Appeal were as follows:

• “No case to answer.
• Evidence shows reasonable doubt.
• No other evidence to show defendant of "bad" character.
• Income within allowable limits.
• Student ID supplied.
• Legal advisers acted contrary to instructions.
• Legal advisers forced guilty plea under duress.
• Evidence gain (sic) under illegal activity.”

EXTENSION OF TIME

14. [14]
    The grounds for extension of time for filing the Notice of Appeal were as follows:

• “No legal assistance - ATSIC Community Legal, etc.
• Forced to plead "guilty" under duress.
• Legal advisers acted contrary to instructions - new evidence that shows reasonable doubt - due processes not followed - i.e. still going through Appeals - could not get help to go to Court.”

EXPLANATION OF THE GROUNDS

15. [15]
    The appellant has also explained the grounds of appeal in several letters sent to the Registrar.

16. [16]
    In a letter dated 21 October 2008, he explained his case in the following terms:

• "Centrelink evidence clears me.
• Did everything required administratively.
• Had no legal representation to represent my wishes.
• Appealing to the Federal Court, through administrative appeals process.
• Endured extreme hardship over Ten years for $1,300 which I still say is mine.
• Forced to RESIGN from Federal Court jobs when garnishee would suffice (+) plus five year federal employment ban.
• When I went to seek legal advice this time around, told by lawyers '(don't appeal)' - that was two weeks ago.
• May I please go back to Court to defend my honour, what little is left.
• 'NOT GUILTY OF FRAUD!'
• Sorry I'm late (no help and had funeral and Mum was in hospital)."

17. [17]
    In a letter dated 12 January 2008, he explained his case in the following terms:

"May I please have two months to find adequate legal representation?

Since my last Court appearance I have approached QLD Aboriginal Legal Aid who have replied saying they cannot represent me in a Court of Law on this matter, not only unfortunate but I feel unethical as they are the funded body who are to ensure that indigenous people have as fair a trial as possible.

I have also contacted QLD Legal Aid who have refused to represent me as they feel I have no chance of winning.  Again they are funded to ensure I have a fair trial.  I am sure Legal Aid has previously assisted murderers, rapists, abusers, assaulters etc., how is it that I am judged to be so bad that I am warranted to be as bad as to be denied an opportunity to defend myself.

Aboriginal Legal Aid, QLD LEGAL AID, DPP, Centrelink have all considered and judged me to be a thief, as well as possibly many others.  My only defence is that the QLD Police Department have never had me in for questioning or fingerprinting on an honesty crime.  If the police have had no reason to question me, how is it the previously named organisations an the individuals working there have accused, judged and persecuted me and my FAMILY on the words of service providers who have failed to give adequate service to the indigenous community and blame the indigenous community for their own dismal failures.

(Please overturn conviction).

Since my last appearance on this matter I have been advised that the law proffession has holidays over the Christmas/New Year period, thus not being able to get a legal defence in that time.

I have contacted HREOC to talk to Tom Calma only to be advised that he has January 2009 on holidays with no one else filling in for his position, he is the indigenous commissioner, someone should be acting in his place. 

My financial situation is in a detrimental state of affairs - debts, Centrelink approx. $12,000, Centrelink approx. $6,000, SPER approx. $7,500.

Having no licence due to SPER suspension has caused significant hardship as my mother is on dialysis and has had rheumatoid arthritis for the last decade where I have been the sole carer whilst in Townsville.

I have turned over through ideas, prox $25-$30 million in a positive way.  I have coach a minimum of three Australian captains on a voluntary basis.  I am proud of my aboriginality having filed for native title by myself.  I got myself to Court after eight years of asking legal professionals.  I have defended myself in District Court previously, quite successfully.

I am a very loyal servant of the aboriginal people and therefore the Commonwealth.  May I have two months to prove such a statement."

18. [18]
    In a letter dated 06 February 2009, he explained the grounds of appeal in the following terms:

"I, John W Paiwan would like to state I did not receive a fair trial on the 20 October 2000 before the Townsville Magistrates Court.  I entered a guilty plea in circumstances that I became aware that an agreement had been reached by the lawyer representing me, that the prosecution would drop 14 charges if I would enter a plea of guilty to the remaining two charges.

I was always of the mind that I was not guilty of any offence, including the two offences to which I have pleaded guilty, that it would be to my best interest to have the 14 charges dismissed and I would receive a penalty and it would all be over on this day, the 20 of October 2000.

I was unaware that the agreement between my legal representative and the prosecution, to which I was never invited to be present, and I was also unaware why the 14 offences were dropped and 2 offences were chosen to which I was told to admit that I had committed those offences.

I seek an order from this Honourable Court that the two guilty pleas be set aside and I be permitted to enter a not guilty plea before a Court took my case, why I am not guilty of these offences."

19. [19]
    This is probably the appellant's most articulate explanation of the grounds, although his reference to there having been two guilty pleas is incorrect.

DIRECTIONS HEARINGS

20. [20]
    The appellant had appeared before me on directions hearings on 01 December 2008 and 12 January 2009. On the first occasion he became distressed and angry and was required to leave the Court. On the second occasion he appeared by consent by telephone link to the Court. He was apologetic and on this occasion was polite. The hearing was therefore a constructive one. The directions made are not of relevance now.

THE APPEAL HEARING

21. [21]
    On the hearing of the Appeal, the appellant's submissions – in summary and dot point form – took the following course (the two specific questions referred to were asked by me):

• "I'd basically wonder if, yeah, the two guilty pleas could be set aside … so that I may be able to prove myself in a Court of Law."
• "I had to leave the state to get legal advice."
• "When I gave my guilty plea I actually said to my lawyer then at the front of … this same Court, 'please take me back in and let me say not guilty.  I'd rather go' - so that was then."
• "I did not want to plead guilty if you know what I mean.  Yeah.  So basically I wanted the Appeal - I wanted people to know the evidence, know the facts of the matter, right, because they don't give services to indigenous people.  If not - well, to - to this individual.  Don't blame this individual for their lack of provision of services, okay, cause I'm only getting like the dole.  You give the service provided.  It's hundreds of thousands of dollars to provide services etc and so, you know, I'm - whether I get Abstudy or the dole I'm still allowed to, you know, have a part time job.  At no time … did I have a full time job."
• "Today's a brand new day for me, if you know what I mean, and I just don't like that slight against my name, Sir."
• "And they said, 'Look - you know, I've just had a chat with - Mr Knight I think my lawyer's name was.  They wouldn't even, you know … they want to … they'll say they'll drop 14 charges if you plead … guilty to two … and I'm like, but I'm not guilty of any of the charges."
• "They said, 'Look, it'd be all over today'.  You know, it's like - well, that's good man, cause I've had a lot of hardship and I'm not even in Court yet.  And they said, 'Look, if you plead guilty it finished, it's over'."
• "They gave me this penalty, Sir, but Sir, they - the penalty the judge gave was I wasn't allowed to work for Federal Government department for five years.  They'd march me off a job at a Federal Government department.  So they basically - for whatever this amount they are talking about they stopped me earning $300,000 … Centrelink, Sir."
• "My solicitor basically get up and say, 'He pleads guilty too' - didn't even defend me at all."
• "But going back to that day, yes, Sir, like I didn't know what the hell was happening, Sir.  I went in there with not guilty.  All I knew was not guilty.  Everything other than was like a farce."
• "Q: Did you - when you went into Court, did the Magistrate read the charges to you?  Can you remember?
• A: … I can say that I can't remember … maybe I said guilty with my own voice even."
• "Had I the time again, Sir, I would have said, Not Guilty."
• "I wanted it finished … they said it was going to be finished.  'Go on just plead guilty.  It's finished today.  You walk away a free man.'  Or not necessarily, they didn't say free man or whatever, they just said it would be finished today.  They - at no stage did they say I wouldn't be able to work for - be a member of a company or a board director or whatever it is - or at no stage did they say part of my penalty would be that I can't work for a Federal Government department.  At no stage was I a part of any - if you know what I mean, Sir, I did not know - I cannot say I did not know.  I knew that I was only not guilty.  That's all I knew."
• "Q: Well, when they said that it would all - be over today, what did you decide to do?
• A: Because they said it was going to be all over today, alright, I thought that I could wear that.  One word of guilty on those two offences that are not even offences.  Their only offences should be perceived to be offences … and I say under Australian law that there is no way that those two things - that those two offences could be perceived as being criminal activity.  So when they basically said, 'Look, it'd be over.'  I mean, I didn't - I didn't do anything wrong and they said that it'd be all over, I thought, oh, well, I haven't done anything wrong.  I hadn't done anything wrong.  I thought, well, it's over here, I walk out and it's guilty and that's it … I can go work for Centrelink now."
• "I was entitled to the money for the - because the course had stopped but it was an approved course and because I applied for Abstudy, I'm entitled to Abstudy for the course for the full year unless the government has taken the money back off James Cook University for that course."
• "I think part of their argument is that because I was working for Centrelink I should have known better.  And I would say because of my training with Centrelink that's why I do know better."

22. [22]
    The appellant asked me to consider a number of documents. Whilst they were largely irrelevant I nevertheless received them as exhibits:

23. [23]
    The one document that I will refer to is Item 1. This was a document affirming a decision requiring the appellant to pay back to Abstudy debts for the periods 03.03.97 to 23.06.97 and 14.02.98 to 05.06.98. The reasons stated by the appellant as to why the decision was wrong are relevant to what I believe is his misunderstanding of the decision and of the subsequent Court proceedings:

"WHY YOU BELIEVE THE DECISIONS ARE WRONG

You have indicated in our meeting of 8 April 2003 that the debt incurred in 1997 should not be a debt as the University Course you enrolled in was cancelled which was out of your control.  You also believe that the debt for 1998 should not be raised as Centrelink needs to take the bigger picture into consideration and that you have continued to learn and educate yourself and therefore have effectively satisfied the requirements of ABSTUDY.

Further you believe that you were entitled to receive ABSTUDY payments for the period 23 October 1997 to 31 December 1997 which had been withheld from you to effectively repay part of your debt approved earlier in 1997.  This is in the belief that the debt accrued earlier in 1997 should not be a debt."

24. [24]
    The parties to the appeal agreed to my having regard, and in determining the appeal to the whole of the magistrates court file.

 THE VALIDITY OF THE PLEA OF GUILTY

25. [25]
    The endorsement is in the following terms:

"20 Oct 2000

For complainant, Ms. Keegan

For defendant, Mr Richards

Def. pleads guilty to charge no 2 which I have read to him.  The Crown offers no evidence on the first charge which is dismissed.  Remanded for sentence to 2.30 20/10/00, bail enlarged."

26. [26]
    The appellant was represented by an experienced solicitor. There is no evidence to suggest that any advice that may have been given to him was given in other than a considered and proper way.

27. [27]
    There is a further endorsement on the file expressed in the following terms:

“20/10/00 3.00 p.m.

Charge amended as indicated on the Summons February to March.  I order $1,339.62 be repaid to the Commonwealth together with $58.00 costs of the Summons.”

28. [28]
    The amendment referred to appears on a ‘Summons To Witness.’ I do not know why an amendment was necessary where a plea had been made. In any event, the complaint correctly referred to March and was not amended.

29. [29]
    On the file there is a probation order dated 20 October 2000 signed by the Magistrate. It purports to be made pursuant to s 20(1)(a) of the Crimes Act, but appears to be on a State Penalties and Sentences Act pro forma.  There is also an “amended” probation order in a Form under the Crimes Act that refers to the order made on 20.10.00. 

30. [30]
    In R v Mallardi (2009) QCA 5, Fraser JA said the following about pleas of guilty:

“In Meisner v The Queen (1995) 184 CLR 132 at 141, Justices Brennan, Toohey, and McHugh observed that there is no miscarriage of justice if a Court acts on a plea of guilty entered in open Court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in the exercise of a free choice in the interests of the person entering the plea.  And that is so, even if the person entering the plea is not in truth guilty of the offence.  Although the circumstances in which the Court will find that there has been a miscarriage of justice in a conviction entered upon a guilty plea cannot be comprehensively categorised, such circumstances must be rare and it is plainly insufficient merely to point to the existence of some evidence which is consistent for the innocence for the prisoner who pleaded guilty:  see R v Carkeet (2008) QCA 143 at (21) to (26)”.

31. [31]
    It seems to me that the appellant made a conscious and voluntary decision to enter a plea of guilty to one charge in lieu of the separate charges, in order to bring matters to an end. A plea made on that basis is a valid and regular plea.I find that there is no evidence upon which the plea of guilty could be found to be irregular.

THE PENALTY ORDER AND THE BREACH PROCEEDINGS

32. [32]
    The appellant was subsequently convicted of State offences. The details of those are not a relevant consideration in this matter, save that they caused the Commonwealth DPP to commence breach proceedings on the recognisance. That proceeding was finalised on 24 July 2003. The breach proved but no further penalty was imposed.

33. [33]
    The appellant made an application to reopen the Magistrates Court proceeding. He contended that the orders were not properly made and that therefore he could not have breached them.

34. [34]
    On the face of the documents now available the penalty order appears to be one that was open to the Magistrate to make. The endorsement may have been made with brevity, but there does not appear to have been any irregularity in the making of the penalty orders.

THE APPLICATIONS TO REOPEN

35. [35]
    The appellant filed an application in the Magistrates Court to reopen the proceedings, on 28 April 2003. The grounds were as follows (I have corrected mis-spellings):

“Bad legal advice (govt paid).  I was and always have maintained my innocence up to the court date.  At court, DPP offered to drop 11 charges if I pleaded to one which I did under DURESS.  I would not like to reopen proceedings as I feel I am entitled to a fair trial as it is every other Australian.  It should not be anything higher than over payment if that!”

36. [36]
    The application was dealt with by a Magistrate on 13 May 2003. The Magistrate refused the application on the basis that there were “no provisions to apply for a re-opening.” I am not sure what that endorsement on the Bench cover sheet was intended to mean. However, I infer from subsequent correspondence on the file that it was refused because there were no grounds to apply for a re-opening.

37. [37]
    The appellant filed a further application by a letter dated 4 July 2003. The grounds were as follows:

“I would like (one) 1 fraud charge and subsequent conviction brought back to court for a trial by jury.  Had to plead guilty under DURESS!  Ref: 99100615 or pro/4101 2254.  I have maintained my innocence throughout only to have Frank Richards and ATSI Legal, T’VILLE do deals with DPP without me present.  I am a literate person and should have been involved with all discussions.  I hope this letter meets with your approval.  P.S. Social security appeals tribunal hearing this Wed 11/July.”

38. [38]
    There does not appear to be any file note as to how or when that letter was dealt with. It may have been a letter in support of the first application to re-open, even though that had in fact been determined at an earlier date.

39. [39]
    Nevertheless, a further application to reopen the proceedings was filed on 16 April 2004. The grounds were as follows:

“-   no justice in 2004

- due process not followed

- conviction before authorised review

- doubts remain as to how much client entitled to

- legal advice did not work for me but to the dollar

- admission of guilt under “extreme duress”

- legal advice refused assistance from 1999-2004 thus this request again!”

40. [40]
    This application refers to a conviction recorded on “11/11/02.” There is an endorsement in the following terms: “Application for re-hearing already refused”, which appears to have been made by a Magistrate on 19.04.04.

41. [41]
    It is impossible now to reconcile the date of conviction referred to in that document, but the content of the application seems to refer to the circumstances maintained about the proceeding in October 2000.

42. [42]
    In any event the appellant’s applications to re-open the proceedings in the Magistrates Court were refused. There is no evidence that the refusal in either case was irregular or invalid.

JURISDICTION

43. [43]
    The respondent submitted that there is no jurisdiction to hear the Appeal if I find that the plea of guilty was regularly made in the Magistrates Court.

44. [44]
    The Act was amended in 2004. Prior to 2004 s 222(2)(e) provided as follows:

“s 222(2)(e) except where the sole ground of appeal is that the fine, penalty, forfeiture or punishment is excessive or inadequate, as the case may be, no appeal shall lie under this section where the defendant pleaded guilty or admitted the truth of the complaint.”

45. [45]
    Whilst the sub-section was amended in 2004, the amendment simply changed the order of the words. The content, in effect, of the sub-section was not changed. The relevant statutory provision in this case is the pre–2004 Section 222(2)(e)   (See infra paragraph [51]).

46. [46]
    I have made a finding that the plea of guilty was proper and regular. Accordingly the appellant’s right to appeal does not extend to his conviction of the offence. It is the conviction that is the critical matter of complaint made by the appellant. I find that I have no jurisdiction to hear and determine the Appeal.

47. [47]
    To the extent that the Appeal relates to the penalty order, there were no submissions made that raised any issue of it being excessive. Indeed, it would have been open to the Magistrate to consider a more severe penalty given the appellant’s reasons for continuing to receive the Abstudy payments and his training or experience as an employee at the payment agency, namely Centrelink.

48. [48]
    The penalty order was open to the Magistrate to make and was not excessive in my view.

49. [49]
    Whilst my finding in respect of jurisdiction disposes of the appeal, I will in the circumstances of this case say something about the application to extend time within which to give the Notice of Appeal.

EXTENSION OF TIME

50. [50]
    The grant of an extension of time within which to give a Notice of Appeal is discretionary.

51. [51]
    The relevant statutory regime is the pre-2004 Act. See Crowley v Barrett (1999) QDC 283; Di Carlo v Du Bois (2004) QSC 41; and O'Callaghan v Hall & Hall (No 133 of 1993).

52. [52]
    There was no transitional provision made in the amending legislation. Hence, pursuant to the provisions of the Acts Interpretation Act 1954, Where the amendments are procedural rather than substantive (which in my view is the case here), the former (pre–2004) legislation should apply. See the observations of McGill SC DCJ in Crowley v Barret (1999) QDC 283.

53. [53]
    Even if that were not the case, however, the position would be no different. The relevant section is, as I have indicated, to the same effect and the appellant is faced with an identical jurisdictional difficulty under the section pre – amendment and post – amendment.

54. [54]
    Section 222 relevantly provided in sub-sections (1), (2)(a), 2(A) and 2(B) as follows:

“Appeal to a single Judge

222. (1) When any person feels aggrieved as complainant, defendant, or otherwise by an order made by any justices or justice in a summary manner upon a complaint for an offence or breach of duty such person may appeal as hereinafter provided to a District Court Judge.

(2) Every such appeal should be made under and subject to the following rules and conditions –

(a) The appellant shall –

(i) Within one calendar month after the decision serve on the person concerned in upholding such decision and on the Clerk of the Court of the place where the decision was given a notice of appeal in the approved form stating the grounds of the appeal and where the appellant wants the appeal to be heard and decided under the District Court Act 1967… (my underlining).

2 (A) However, if the appellant can not give notice under subsection 2(a), through no fault of the appellant’s, the appellant may apply to a District Court Judge for an order extending time for service of the notice and, if necessary for substituted service.

2 (B) District Court Judge may make the orders in relation to an application under subsection (2A) the Judge considers appropriate.”

55. [55]
    The Notice of Appeal was filed nearly eight years after the expiry of one calendar month after the date of the decision.

56. [56]
    The appellant made unsuccessful applications for re-openings of the proceedings. He was advised by letter dated 16 April 2004 from the Clerk of the Court in the Magistrates Court to seek his own legal advice.

57. [57]
    He sought Centrelink reviews of its decision about the debt in 2003-2004. His review was taken to the Social Security Appeals Tribunal and to the Administrative Appeals Tribunal and was finalised in 2004 and debt amounts were altered. He may have previously sought advice from lawyers, politicians and the Human Rights and Equal Opportunity Commission and from community groups. However, he did not appeal to this Court until September 2008.

58. [58]
    There is no evidence that adequately explains the delay. There was no “new evidence that shows reasonable doubt”, adduced in this Court. His activity in respect of the Centrelink debt would not have prevented him from concurrently appealing to this Court (putting aside the jurisdictional problem).

59. [59]
    The proper approach to the issue of delay in an application for extension of time was reviewed in R v CAJ (2009) QCA 37.  That case involved consideration of whether the applicant for extension of time for appeal had provided an adequate explanation for his failure to initiate his application in time and whether it was in the interests of justice to grant the extension. 

60. [60]
    Fraser JA said the following:

“[3] On 26 November 2008 the applicant filed an application dated 19 November 2008 for an extension of time within which to appeal against his sentence  the applicant requires an extension of time of some ten months.  The ground of the proposed appeal is that the sentence is manifestly excessive in all the circumstances.

[4] The applicant’s explanation for his delay is that his solicitor did not give him legal advice concerning an appeal despite the applicant repeatedly conveying that he wanted to appeal, he was initially in close detention, he was depressed and he gave up the idea of appealing as a result until, several weeks before lodging his appeal, an uncle told him that the court might accept a late appeal.  These matters do not provide an adequate explanation for the applicant’s failure to initiate his application for leave to appeal in time.  Nevertheless, the ultimate question is whether it is in the interests of justice to grant the applicant the extension of time which he seeks.  In that respect a significant question is whether or not the proposed application is viable:  R v Tait (1999) 2 Qd R 667 at 668.  with that in mind I have considered the merits of the proposed application for leave to appeal against sentence.”

MERIT ASSESSMENT

61. [61]
    I have considered the prospects of success of the appeal on the grounds relied on by the appellant.

62. [62]
    The appellant’s principal ground appears to be a request that the “two” (sic) guilty pleas be set aside” and that he be permitted to enter a not guilty plea.

63. [63]
    This Court is unable to make such orders. I have made a finding that the plea of guilty was voluntary and regularly entered. There is no evidence upon which the plea could or should be set aside.

64. [64]
    I have set out the facts upon which the prosecution relied in the proceedings before the Magistrate. I have set out what happened in the Magistrates Court before at the time of and following the proceeding, as best can be determined from the material before me. In my view any appeal – even if justicable – would have no prospects of success. In that circumstance it would not be in the interests of justice to grant the appellant the extension of time which he seeks, even if this Court had jurisdiction so to do.

INJUSTICE

65. [65]
    The appellant has clearly become aggrieved by the events that followed the proceedings in the Magistrates Court. His apparent change of mind about having entered the plea of guilty and thereby being dealt with for the offence by the Magistrate, appears to have detrimentally affected his outlook on life and has become at the very least, an emotional burden upon him. I infer from what he has said in the material before me and in submissions that this has led to a breakdown in his personal relationships, a loss of employment and an inability to come to terms with what was the consequence of his own voluntary conduct. He has become convinced over time that he is the victim of an unfair proceeding, but there is simply no evidence that there was any injustice or unfairness in the proceedings in the Magistrates Court.

66. [66]
    One would hope that his having been afforded a fair hearing on this appeal and having been given a comprehensive response to it in this judgment, he has had an opportunity to exhaust his explanation of the issues and the impact of the consequences upon him to the extent that it might be a cathartic event which will enable him now to look ahead and get on with life without the intense and emotive focus that he has until now apparently had upon these events of more than eight years ago.

67. [67]
    ORDERS

1. The application for extension of time for filing a Notice of Appeal is refused.

2. The appeal is dismissed.

3. There is no order as to costs.