Liburd v The Queen

• Jurisdiction: Anguilla
• Judge: Barrow, J.A.
• Judgment Date: 28 July 2008
• Neutral Citation: AI 2008 CA 2
• Docket Number: Criminal Appeal No. 003 of 2008
• Court: Court of Appeal (Anguilla)
• Date: 28 July 2008

Court of Appeal

Barrow, J.A.

Criminal Appeal No. 003 of 2008

Liburd

and

The Queen

Appearances:

Mr. Clyde Williams and Mr. Michael Bourne for the appellant.

Criminal Practice and Procedure - Appeal — Application for extension of time within which to file appeal — No reasons given for delay — Merits of the proposed appeal considered — Application denied.

Criminal Appeal-Application for extension of time within which to appeal-reasons for delay in filing appeal-circumstances in which Court may grant extension of time although delay inordinate or unexplained-avoidance of injustice-court will have regard to proposed grounds of appeal

The applicant/intended appellant applied for an extension of time within which to appeal his conviction on counts of causing grievous bodily harm with intent, possession of a firearm without a licence and possession of ammunition without a licence. Although the application was made some two and a half years after he was convicted, the applicant failed to provide the Court with reason for the delay. The proposed appeal was based on the ground that the conviction was unsafe or unsatisfactory. The applicant/ intended appellant contended that he had been denied a fair trial due to his assertion that his defence was badly conducted by trial counsel. The main issue before the court was whether and on what grounds an extension of time within which to appeal should be granted, given the absence of explanation and taking into account the length of the delay and the merits of the proposed appeal.

Held, refusing the application for an extension of time within which to appeal, that:

• (1) A court would not grant an extension of time within which to appeal except for very good reason. A consideration of reasons begins with reasons for delay. Because of the grave considerations involved in an application to extend time within which to appeal, a court must be keen in its examination of reasons for delay;

• (2) In an appropriate case however, an extension may be granted even where there has been inordinate or unexplained delay. Where, for example, significant injustice would result if the proposed appeal were not heard the Court may nonetheless grant the extension.

• (3) Having regard to the proposed ground of appeal and the assertions made in support thereof, the Court is satisfied that the applicant/intended appellant would suffer no injustice if an extension of time within which to appeal was refused.

Barrow, J.A.

1 Some two and a half years after he was convicted, on 24th October 2005, on two counts of causing grievous bodily harm with intent, possession of a firearm without a licence and possession of ammunition without a licence the applicant applied, on 21st May 2008, for an extension of time within which to appeal.

2 It is settled law that an extension of time for appealing will not be granted unless there are very good reasons; see Archbold 2005, at 7-182.

3 In considering an application for an extension of time for appealing a court generally looks at the length of delay, the reasons for delay and the merits of the proposed appeal. The court's consideration begins with the principle that time limits for appealing must be obeyed. The Court will not be inflexible and unyielding in its application of the principle but it has a duty to hold an applicant to strict compliance.

4 Time limits for appealing are established to ensure that there is certainty in the conduct of litigation. Certainty is of overriding importance, especially in criminal litigation, so that all persons interested in litigation and members of society generally may know where matters stand. An appellant must know that he may appeal at any time within 14 days (Section 44(1) Eastern Caribbean Supreme Court Act, Ch. E15, Revised Laws of Anguilla, 2000) but equally he must know that if he does not appeal within that time he may no longer appeal, unless he has satisfactory grounds to persuade the Court to make an exception and extend time. Similarly, the prosecution must be able to rely on time limits and to know and conduct the affairs of that branch of the administration of justice on the basis that if there is no appeal within the time limited then there will be no appeal, save in an exceptional case. As important, the victims of crime, their families and friends, as well as witnesses must be able to rely on the certainty of the time limits imposed by the law and to believe that if no appeal is filed before time expires there is closure.

5 Because there are such grave considerations involved in an application to extend time for appealing the Court must be keen in its examination of reasons for delay. The explanations for delay were presented mainly by the appellant's mother. She deposed that immediately after her son's conviction she explored the matter of appealing, at his request. The mother deposed that she met with counsel who had represented the applicant at...