R v BFB No. Sccrm-03-185 - [2003] SASC 338

R v BFB
[2003] SASC 338
Criminal

BESANKO J After a trial by jury before the Chief Judge of the District Court, B was found guilty of four counts of unlawful sexual intercourse with A, a child under the age of 12 years contrary to s 49(1) of the Criminal Law Consolidation Act (“CLCA”). The jury delivered its verdicts on 1 October 2002.
The offences were alleged to have taken place in 1997. At that time, A was eight years old. The first offence was alleged to have occurred in February 1997, and the second, third and fourth offences were alleged to have occurred on a single night between April and August 1997. It appears that there was no complaint about the incidents until late 2001. Therefore, in relation to the first offence, there was a delay between the alleged offence and the complaint of over four and a half years, and in relation to the second, third and fourth offences there was a delay between the alleged offences and the complaint of over four years.
B wishes to appeal against his convictions. He has put forward eight grounds of appeal. He accepts that he needs leave to appeal in relation to seven grounds. He asserts that one ground raises a question of law, and that he does not need leave to appeal in relation to it.
A defendant’s rights of appeal are set out in s 352 of the CLCA. There is an appeal as of right on a question of law alone, and with leave on any other ground. Section 357 of the CLCA provides that an appeal to the Full Court or an application for leave to appeal to the Full Court must be made in accordance with the appropriate rules of court. The time fixed by the rules for the lodging of a notice of appeal or notice of application for leave to appeal is within 21 days of the date of conviction (r 4A of the Supreme Court Criminal Appeal Rules 1996). Section 357(2) provides that the Full Court may (either before or after the time allowed by the rules has expired) extend the time for making such an appeal or application. In this case, the notice of appeal or notice of application for leave to appeal is almost nine months out of time. It was lodged on 25 July 2003. The defendant seeks an order under s 357(2) of the CLCA extending the time for making the appeal or application. He also seeks leave to appeal in relation to the grounds of appeal. By reason of s 367 of the CLCA, both applications may be heard and determined by a single judge of this Court.
On the hearing of the application for an extension of time for making the appeal or application, I received four affidavits, namely,
(1)   affidavit of Mr G J Mancini sworn 1 September 2003,
(2)   affidavit of the defendant’s brother sworn 2 September 2003,
(3)   affidavit…

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 BFB No. Sccrm-03-185

Details

AGLC: R v BFB No. Sccrm-03-185 [2003] SASC 338
Case: [2003] SASC 338
Decision Date: 26 September 2003

CaseChat Overview and Summary

In the Supreme Court of South Australia, the defendant, BFB, was found guilty of four counts of unlawful sexual intercourse with a child under the age of 12 years, contrary to s 49(1) of the Criminal Law Consolidation Act (CLCA). The offences were alleged to have taken place in 1997, with the victim being eight years old at the time. The delay between the alleged offences and the complaint was over four years, with the first offence having a delay of over four and a half years. BFB appeals against his convictions on eight grounds, asserting that one ground raises a question of law and does not need leave to appeal. The court must decide whether to grant an extension of time for the appeal and whether to grant leave to appeal on the grounds presented.

The court considered the legal issues involved in granting an extension of time for the appeal and leave to appeal on the grounds presented. The defendant's rights of appeal are set out in s 352 of the CLCA, which provides for an appeal as of right on a question of law alone and with leave on any other ground. Section 357 of the CLCA allows the Full Court to extend the time for making such an appeal or application. The court must exercise its discretion having regard to the interests of justice, considering factors such as the defendant's interests and the likelihood of success of the appeal.

The court found that the delay in this case was substantial, with the majority of the delay due to the lack of proper diligence by the defendant's solicitor, Mr. Mancini. The court concluded that an extension of time should only be granted if there are substantial grounds for apprehending a miscarriage of justice if it is refused. The court found that ground 4, which relates to the failure of the trial judge to give a Longman warning, satisfies the test for granting leave to appeal. The other proposed grounds of appeal were found not to be reasonably arguable.

The court granted leave to appeal in relation to ground 4 and extended the time for making the application for leave to appeal. The court refused leave to appeal in relation to the other grounds and denied the extension of time for the application for leave to appeal on those grounds.

Orders