Craber v WorkCover Queensland [2013] QCA 304

Morrison JA with Fraser JA and Phillippides J concurring:

Relevant principles

[13] In an application to extend time for a criminal appeal the court will examine whether there is any good reason shown to account for the delay and whether overall it is in the interests of justice to grant the extension.[13] Whether or not it is in the interests of justice to grant the extension of time may involve some assessment of whether the appeal seems to be a viable one.[14] The court will take into account the length of the delay, it being much easier to excuse a short than a long delay. Further, as R v Lewis[15] shows, even where there is no satisfactory explanation for not bringing an appeal within time, the court should not refuse the application to extend time if the applicant is able to demonstrate that to refuse it would result in a miscarriage of justice.[16]

The applicant’s submissions

[14] Before this Court the applicant essentially repeated matters which had been raised before the learned primary judge. Nothing new was raised by way of criticism of the trial before the Magistrate. More importantly there was no attempt to demonstrate any error in the way in which the learned primary judge dealt with the matter. The applicant sought to adduce new evidence in the form of a WorkCover Queensland document dated 1 July 2008. It is a PAYG payment summary which reveals the period of work as a bus driver which was the subject of the original offence. The applicant sought to contend that the recording of the date as “19.06.2007 to present” was evidence that he had revealed his employment on 19 June 2007. It is nothing of the kind, as it simply records (in a document created a year after the event) the period of employment.

[15] Two affidavits were filed to support the application for an extension of time. The first, dated 31 July 2013, sought to explain the delay in this way:

(a) the applicant is not a lawyer – this is true;

(b) he was not armed with the relevant information, namely the “new” evidence;

(c) his previous lawyers withheld information from the courts – this was not supported by any credible facts;

(d) he was unaware that workplace safety legislation had been breached by WorkCover – this too was not supported by any credible fact;

(e) he was not told what forms to fill out for another appeal.

[16] None of those explanations are sufficient. One feature of the hearing before the learned primary judge was that the necessity to bring an appeal in time was emphasised. The applicant could have been in no doubt at the end of that hearing that any step to take the matter further had to be taken in a timely way. The “new” evidence was not new; it was the same as that brought before the District Court.

[17] The second affidavit, dated 14 August 2013, sought to outline the appeal grounds if leave were granted. Leaving aside those parts which consist of argumentative history, the balance consisted simply of an attempt to reargue why Mr Montaldi should have been disbelieved, and the applicant believed. As the learned primary judge observed, where findings of credit are involved in the resolution of factual questions leading to a conviction, that can be a considerable hurdle to the prospects of an appeal succeeding.

[18] The affidavit then concludes with the assertion that the applicant gave the Crown three options which, slightly paraphrased, are as follows:

(a) the acquittal of the applicant and the payment of compensation; the imposition of a fine on WorkCover to the extent of $23,000,000 “FOR CRIMES THEY DID COMMIT”; and the imposition of a fine on the “CROWN” in the sum of $23,000,000 “FOR AIDING AND ABETTING IN PERVERSION OF JUSTICE”; or

(b) if that did not happen, “THE CROWNS [sic] LAW MUST STAND ASIDE AND ALLOW AN INDERPENDENT [sic] PRESIDENT TO STAND INTIL [sic] QLD’S FIRST ELECTED INDERPENDENT [sic] PRESIDENT CAN LEAD US INTO NEXT CENTREY [sic]”; or

(c) “ALL THE ABOVE!”.

Discussion

[19] There is no adequate explanation for the delay involved between the decision of the learned primary judge on 21 May 2010, and the institution of these proceedings in July 2013. The explanation based on “new evidence” cannot be accepted; it was not new at all and was valueless in any event. Other assertions were not supported by admissible facts. The explanations are much the same as were proffered to the learned primary judge to try and explain the delay of 14 months between the time of conviction and the application in the District Court. Just as that explanation was rejected, so should the current explanations be rejected.

[20] Acceptance of the applicant’s explanations, or prospects on appeal, is not assisted by the flamboyant assertions in the second affidavit: see paragraph [18] above. They do not suggest a reasoned or rational approach to the issues.

[21] As to the applicant’s prospects of successfully appealing against the decision of the learned primary judge in the District Court, in my respectful opinion those prospects are non-existent. The learned primary judge dealt carefully with the questions of delay, the merits of any possible appeal, and the fact of prejudice because of the ill health of Mr Montaldi. Indeed, the prejudice that was identified by the learned primary judge has only intensified, in that Mr Montaldi is now deceased. The decision of the learned primary judge cannot be demonstrated to be an error in any respect. Leaving that aside, the applicant’s only substantive grounds to challenge the conviction faces the considerable hurdle that detailed adverse findings of credit were made against him, and in favour of Mr Montaldi. Put simply, the applicant’s contention that he revealed his employment to WorkCover was disbelieved. The applicant’s prospects of success for appealing the original decision are also hopeless.

[22] Given the matters above there is no reason to conclude that any miscarriage of justice will follow refusal to extend time.

[23] After the hearing of the application was concluded the applicant filed a further affidavit with, yet again, further copies of documents he wished to rely on. It is not clear if it has been served on the respondent. However, they are too late and in any event do not assist to explain the delay or to enhance the merit of an attack on the outcome in the Magistrates Court. I would reject acceptance of the affidavit.

Disposition

[24] In the circumstances outlined above the delay has not been satisfactorily explained, any appeal against conviction would be doomed to failure and its prospects would not be enhanced by the suggested new evidence. The application for an extension of time within which to appeal the conviction should be refused.

 Brisbane Barrister – David Cormack

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