Jeffers v R [1993] HCA 11; (1993) 112 ALR 85; (1993) 67 ALJR 288 (11 March 1993)

HIGH COURT OF AUSTRALIA

DARREN CHRISTOPHER JEFFERS v. THE QUEEN
F.C. 93/006
Number of pages - 2

[1993] HCA 11; (1993) 67 ALJR 288

High Court of Australia
Deane(1), Dawson(1) and Toohey(1)

CATCHWORDS

HEARING

Canberra
11:3:1993

DECISION

DEANE, DAWSON AND TOOHEY JJ. On 4 March 1993 we granted special leave to the appellant to appeal against the refusal of the Court of Appeal of Queensland to grant an extension of time in which to bring an appeal against his conviction on one count of armed robbery and two related counts. Upon the hearing of the application for special leave both the appellant and the Crown urged us, if special leave were granted, to proceed to determine the appeal. Having granted special leave, we acceded to that request and heard such further argument as the parties wished to put on an appeal. The reason for the request and for our acceding to it will be apparent from the circumstances of the case.

2. The appellant was convicted on 21 May 1992 and was sentenced to a term of imprisonment of five and a half years. He was advised that an appeal against his conviction had reasonable prospects of success, but that if he were successful he would be retried and, if convicted again, might receive a considerably longer sentence than five and a half years. The appellant chose not to appeal in those circumstances. The last day for appealing was 18 June 1992. On that day the Attorney-General filed a notice of appeal against the appellant's sentence. The appellant was alerted to the intention to appeal when a notice was served on him in gaol on the night of 18 June. But, by reason of some confusion in the papers, he may not have been properly served until 7 July. It is, however, unnecessary that we pursue that aspect of the matter. The appellant rang his solicitors on Friday, 19 June 1992 but was unable to speak to the solicitor handling his matter. On Monday, 22 June 1992 the appellant managed to contact that solicitor, who sent a clerk to the gaol with a notice of appeal against conviction and sentence. The appellant signed the notice and gave instructions for it to be lodged forthwith. The notice of appeal, which is dated 23 June 1992, was lodged in the registry of the Court on 24 June 1992.

3. The appellant's matter came before the Court of Appeal on 10 September 1992 and was treated as an application for an extension of time within which to appeal. At the same time, the Attorney-General's appeal against sentence came before the Court. The Court of Appeal refused the appellant's application for an extension of time but allowed the Attorney-General's appeal and increased the appellant's sentence to a term of imprisonment of ten years.

4. The Court of Appeal held that because the appellant had "made his election, based upon the risks of a greater sentence upon conviction after re-trial, (he) should not be given an opportunity to make a decision (to appeal) outside time only after he had received the notice of appeal against sentence by the Attorney". We are unable to agree.

5. It is understandable that the appellant initially decided not to appeal, given his legal advice. The increased sentence which he ultimately received emphasizes the leniency of the sentence initially imposed. The circumstances, and the basis upon which he made his decision, changed entirely when the Attorney-General filed notice of his appeal at the very end of the period within which the appellant was required to lodge his notice of appeal. When he was served in gaol with the Attorney-General's notice of appeal, or at any rate was alerted to its existence, the appellant acted swiftly to have a notice of appeal lodged on his behalf. There was no extended delay which would require the appellant to show "exceptional" circumstances ((1) Cf. R. v. Sunderland (1927) 28 SR(N.S.W.) 26; Cookson (1989) 45 A Crim R 121, at p 124.). If these were the only considerations, we should have thought it plain that justice required that the appellant be granted an extension of time so that he might pursue his appeal which was in reality an appeal against conviction only. Any delay on his part was not long and, moreover, was adequately explained. The notion of the appellant making some binding "election" is, we think, inappropriate.

6. However, should the appellant be unable to demonstrate any prospect of success in the appeal which he seeks to prosecute he would, for that reason, not be entitled to an extension of time, despite the other circumstances. In dismissing the appellant's application, the Court of Appeal gave no consideration to the appellant's prospects of success and there is no occasion for us to do so.

7. We would allow the appeal and remit the matter to the Court of Appeal to reconsider, in the light of these reasons, the appellant's application for an extension of time within which to pursue his appeal.

ORDER

Appeal allowed.

Set aside the order of the Court of Appeal of Queensland dismissing the appellant's application for an extension of time to appeal against his convictions.

Remit the matter to the Court of Appeal of Queensland to deal with the application for an extension of time in accordance with the reasons for judgment of this Court.