Frank Riera v The Queen - [2012] HCASL 14

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

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.
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.
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.
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.
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.
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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] HCASL 14
Decision Date

CaseChat Overview and Summary

The High Court was asked to decide whether Frank Riera, who was convicted in the District Court of Queensland, could appeal his conviction on the grounds that the trial court had admitted inadmissible evidence. Riera had applied for an extension of time to file his notice of appeal against his conviction, but the Court of Appeal of the Supreme Court of Queensland refused his application. The applicant's argument was that the evidence of "preliminary complaints" made by the complainant was inadmissible under section 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld), and that this inadmissibility had denied him a fair trial. However, Riera's counsel had not objected to the admission of this evidence at trial, and the Court of Appeal found that this was a deliberate decision made for a legitimate forensic reason. As a result, the Court of Appeal found that it was not open to Riera to argue on appeal that the evidence was inadmissible and that a serious injustice could not be demonstrated in this regard.

The legal issues before the High Court were whether the applicant could point to a serious injustice that warranted an extension of time for filing his notice of appeal, and whether there were any questions of law that would warrant a grant of special leave to appeal. The Court found that the applicant's proposed grounds of appeal did not advance any questions of law that would warrant a grant of special leave to appeal, and that an appeal to the High Court would enjoy insufficient prospects of success. The Court also found that the interests of the proper administration of justice were not engaged by the application. Therefore, the Court dismissed the application for special leave to appeal and directed the Registrar to draw up, sign and seal an order dismissing the application.

In conclusion, the High Court dismissed the application for special leave to appeal against the decision of the Court of Appeal of the Supreme Court of Queensland. The Court found that the applicant had not pointed to a serious injustice that warranted an extension of time for filing his notice of appeal, and that there were no questions of law that would warrant a grant of special leave to appeal. The Court also found that the interests of the proper administration of justice were not engaged by the application. As a result, the applicant's appeal against his conviction was not successful, and the decision of the Court of Appeal of the Supreme Court of Queensland stands.

Orders