R v AH - [2002] QCA 536

SUPREME COURT OF QUEENSLAND

CITATION:

R v AH [2002] QCA 536

PARTIES:

R
v
AH
(applicant)

FILE NO/S:

CA No 312 of 2002
DC No 365 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

10 December 2002

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2002

JUDGES:

McPherson and Williams JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application to extend time dismissed.

CATCHWORDS:

APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – crown did not oppose grant of extension – whether appeal must have prospects of success to proceed

CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES – maintaining sexual relationship with a child – whether uncharged acts admissible as evidence of relationship

Criminal Code (Qld), s 229B

KBT v The Queen (1997) 191 CLR 417, followed
S v The Queen (1989) 168 CLR 266, applied

COUNSEL:

The applicant appeared on his own behalf
BG Campbell for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: This is an application for an extension of time within which to appeal against conviction following a verdict of guilty at a trial in the District Court at Townsville on 22 August 2002. The applicant was convicted of count 1: maintaining a sexual relationship with a child, with a circumstance of aggravation; count 2: unlawful and indecent dealing with a child under 16 years; count 3: attempted rape; and count 4: rape. As to count 4, the applicant had denied rape but at the trial admitted through his counsel having had sexual intercourse, as a result of which a child was born to the complainant. His admission to that effect followed DNA testing which showed he was the father of the child.

There is no dispute that the need for an extension of time has arisen from an oversight on the part of the applicant’s legal representative, and the Crown would not oppose an extension of time on that ground. If that were the only condition to be satisfied the extension would be granted. It is, however, also necessary to examine the prospects of success of an appeal if it were to be allowed to proceed.

Grounds 1 and 2 of the proposed notice of appeal are as follows:

“1.The learned trial judge erred in directing the jury that uncharged acts could be relied upon as acts of a sexual nature in determining whether the appellant was guilty of maintaining a sexual relationship.
2.The learned trial judge erred in directing the jury that they could find the appellant guilty of maintaining a sexual relationship if they were satisfied beyond reasonable doubt of the same three or more uncharged acts of a sexual nature.”

The background to these two grounds can be explained by saying that at the trial the…

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.

Continue reading R v AH

Details

AGLC: R v AH [2002] QCA 536
Case: [2002] QCA 536
Decision Date: 10 December 2002

CaseChat Overview and Summary

The case of R v AH involved the appellant appealing against a conviction and sentence for maintaining a sexual relationship with a child. The appeal was heard by the Queensland Court of Appeal. The primary legal issue before the court was whether the appeal could proceed despite being lodged outside the statutory time limit, and whether uncharged acts could be admitted as evidence of the relationship.

The court considered that the statutory time limit for appeals had expired, and that ordinarily, permission to appeal out of time would not be granted unless the appeal had prospects of success. The appellant argued that the uncharged acts were admissible as evidence of the relationship, but the court held that this did not necessarily mean that the appeal had prospects of success. The court found that the appeal did not have sufficient prospects of success to warrant an extension of time. The Crown did not oppose the grant of an extension but argued that the appeal should still be dismissed due to the lack of prospects of success. The court agreed and dismissed the application to extend time.

There were no further orders made by the court. The appeal was dismissed, and the original conviction and sentence stood. The court held that the uncharged acts were not admissible as evidence of the relationship, and that the appeal did not have sufficient prospects of success to warrant an extension of time.

Orders

Orders of the court

Application to extend time dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v AH [2002] QCA 536
PARTIES:	R v AH (applicant)
FILE NO/S:	CA No 312 of 2002 DC No 365 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	10 December 2002
DELIVERED AT:	Brisbane
HEARING DATE:	27 November 2002
JUDGES:	McPherson and Williams JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application to extend time dismissed.
CATCHWORDS:	APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – crown did not oppose grant of extension – whether appeal must have prospects of success to proceed CRIMINAL LAW – PARTICULAR OFFENCES – SEXUAL OFFENCES – maintaining sexual relationship with a child – whether uncharged acts admissible as evidence of relationship Criminal Code (Qld), s 229B KBT v The Queen (1997) 191 CLR 417, followed S v The Queen (1989) 168 CLR 266, applied
COUNSEL:	The applicant appeared on his own behalf BG Campbell for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent