R v BBV - [2010] QCA 61

SUPREME COURT OF QUEENSLAND

CITATION:

R v BBV [2010] QCA 61

PARTIES:

R
v
BBV
(applicant)

FILE NO/S:

CA No 3 of 2010
DC No 672 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Cairns

DELIVERED EX TEMPORE ON:

22 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2010

JUDGES:

McMurdo P and Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application for an extension of time refused.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant was found guilty of rape, assault with intent to commit rape and attempted rape – where the applicant applied for an extension of time to appeal conviction – where the applicant contended that the DNA evidence was not properly tested or considered – where the delay in applying for an extension was lengthy and the reasons given unconvincing and unsupported – where the Crown case was strong – whether it is in the interests of justice to grant the extension

R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited
R v Twidale[2009] QCA 200, cited

COUNSEL:

C Heaton for the applicant
M B Lehane for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: Justice Fraser will deliver his reasons first.

FRASER JA: On 22 April 2009 after a trial in the District Court, the applicant was found guilty by a jury of one count of rape, one count of assault with intent to commit rape and one count of attempted rape. On the same day, he was sentenced to imprisonment for five years in respect of the offence of rape and to shorter concurrent terms for the other offences.

On 5 January 2010 the applicant filed an application for an extension of time within which to appeal against his convictions. At the hearing of the application the Court had the benefit of helpful submissions by Mr Heaton of counsel for Legal Aid on behalf of the applicant.

In deciding whether to exercise the discretionary power to extend the time for appealing the Court examines whether there is any good explanation for the delay and the Court considers overall whether it is in the interests of justice to grant the extension: see R v Tait [1999] 2 Qd R 667 at 668. Relevant factors in the exercise of the discretion include the viability of the proposed appeal, where that is practicable to be assessed, and the length of the delay: see R v Twidale [2009] QCA 200. Here the delay is lengthy extending over some seven months. By way of explanation for the delay, the applicant stated in his application that his lawyers had advised him after he was convicted that if he appealed, his sentence would…

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 BBV

Details

AGLC: R v BBV [2010] QCA 61
Case: [2010] QCA 61
Decision Date: 22 March 2010

CaseChat Overview and Summary

In the case of R v BBV, the applicant appealed against his conviction of rape, assault with intent to commit rape, and attempted rape. BBV applied for an extension of time to appeal his conviction, contending that the DNA evidence was not properly tested or considered. The court had to decide whether it was in the interests of justice to grant the extension despite the lengthy delay in applying for it and the unconvincing and unsupported reasons given by BBV.

The court held that an extension of time to appeal a conviction could only be granted if the applicant demonstrated that the delay was not unreasonable and that it was in the interests of justice to grant the extension. BBV had failed to demonstrate that the delay was not unreasonable. The reasons he provided for the delay were unconvincing and unsupported. Furthermore, the Crown case was strong, and BBV had not demonstrated that there was any possibility that the appeal would be successful.

Accordingly, the court refused the application for an extension of time to appeal. The court held that it was not in the interests of justice to grant the extension, given the lengthy delay and the unconvincing and unsupported reasons provided by BBV. The applicant's conviction and sentence were therefore upheld.

Orders

Orders of the court

Application for an extension of time refused.

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 BBV [2010] QCA 61
PARTIES:	R v BBV (applicant)
FILE NO/S:	CA No 3 of 2010 DC No 672 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Cairns
DELIVERED EX TEMPORE ON:	22 March 2010
DELIVERED AT:	Brisbane
HEARING DATE:	22 March 2010
JUDGES:	McMurdo P and Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application for an extension of time refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant was found guilty of rape, assault with intent to commit rape and attempted rape – where the applicant applied for an extension of time to appeal conviction – where the applicant contended that the DNA evidence was not properly tested or considered – where the delay in applying for an extension was lengthy and the reasons given unconvincing and unsupported – where the Crown case was strong – whether it is in the interests of justice to grant the extension R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited R v Twidale[2009] QCA 200, cited
COUNSEL:	C Heaton for the applicant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent