Frank Riera v The Queen

[2012] HCASL 14

FRANK RIERA
v
THE QUEEN
[2012] HCASL 14
B22/2011

1. The applicant seeks special leave to appeal against an order of the Court of Appeal of the Supreme Court of Queensland (Chesterman JA and Ann Lyons and Martin JJ) refusing his application for an extension of time in which to file a notice of appeal against conviction.  The applicant had been convicted on 30 October 2009 in the District Court of Queensland at Innisfail of one count of unlawful and indecent dealing with a child under 12 years, and one count of wilfully and unlawfully exposing a child under 12 years to an indecent act. 

2. The special leave application to this Court is brought out of time; in the circumstances, the dispensation sought under r 41.02.2 of the High Court Rules 2004 is granted.

3. The applicant applied to the Court of Appeal for an extension of time in which to file his notice of appeal on 18 November 2010, more than 12 months after he was convicted and sentenced.  The Court of Appeal delivered its decision in respect of the application on 21 April 2011. It found that in the circumstances of this case the extension of time should only be granted if the applicant could point to a serious injustice.  This in turn led to consideration of the merits of the appeal that the applicant sought to bring.  

4. The applicant contended, amongst other things, that evidence admitted at his trial of "preliminary complaints" made by the complainant was inadmissible under s 4A of Criminal Law (Sexual Offences) Act 1978 (Qld), and that he had therefore been denied a fair trial. The applicant's counsel at trial had not objected to the admission of the preliminary complaint evidence. Ann Lyons J (Martin J agreeing) found that this was – and Chesterman JA that it may have been – a deliberate decision made for a legitimate forensic reason. Given this, the Court of Appeal unanimously found that it was not open to the applicant to contend on appeal that the evidence was inadmissible, and found that a serious injustice could not be demonstrated in this regard.

5. The applicant's proposed grounds of appeal to this Court in respect of these findings do not advance any questions of law which would warrant a grant of special leave to appeal.  An appeal to this Court would enjoy insufficient prospects of success.  Further, the interests of the proper administration of justice are not engaged by the application.

6. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
9 February 2012 S.M. Crennan