R v Daq

Case [2008] QCA 75 4 April 2008

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SUPREME COURT OF QUEENSLAND

CITATION:

R v DAQ [2008] QCA 75

PARTIES:

R
v
DAQ
(applicant)

FILE NO/S:

CA No 176 of 2007
DC No 2554 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2008

JUDGES:

Keane and Fraser JJA and Mackenzie AJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for extension of time in which to appeal against conviction refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where applicant seeks extension of time in which to appeal against conviction – where application made following a significant delay – where no reasonable excuse is offered for the delay – whether there is a compelling demonstration of a serious injustice which can be corrected only on appeal – whether the application for extension of time in which to appeal against conviction should be granted

R v GV [2006] QCA 394, cited
R v Lewis (2006) 163 A Crim R 169; [2006] QCA 121, applied
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, cited

COUNSEL:

J C Cremin for the applicant
M J Copley for the respondent

SOLICITORS:

No appearance for the applicant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: On 18 December 2006 the applicant was convicted upon the verdict of a jury of one count of indecently dealing with a child under 16 years of age, under 12 years of age and under his care, and two counts of rape. These offences were committed upon a female child, J, who was then 10 years and seven weeks old.

The applicant was also convicted of one count of indecently dealing with a child under 16 years of age under his care. The victim of this offence was his 12 year old stepdaughter, T.

The offences were committed during the night of 22 July 2003 while J was "sleeping over" with T at the applicant's house. Both girls gave evidence that the applicant entered T's bedroom a number of times during the night and interfered with them.

The applicant was acquitted of two other counts of rape allegedly committed on

J and one further count of indecently dealing with T.

The applicant was sentenced to two and a half years imprisonment in respect of the two offences of rape and to shorter concurrent terms in respect of the other offences. A period of 194 days was declared to be time served as pre-sentence custody. He was eligible for parole on 7 April 2007.

On 3 August 2007 the applicant applied for an extension of time in which to appeal against his convictions.

Evidently 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 Daq

Details

AGLC: R v Daq [2008] QCA 75
Case: [2008] QCA 75
Decision Date: 4 April 2008

CaseChat Overview and Summary

In the matter of R v Daq, the applicant sought an extension of time in which to appeal against their conviction. The case was heard in a court in Queensland. The primary issue before the court was whether the applicant's application for an extension of time to appeal against their conviction should be granted, given the significant delay in making the application and the absence of a reasonable excuse for this delay.

The court considered the general principles that guide the grant or refusal of an extension of time for an appeal. It examined whether the applicant had provided a compelling demonstration of a serious injustice that could only be corrected on appeal. The court found that the applicant had not offered any reasonable excuse for the significant delay in making the application for an extension of time. As such, the court concluded that there was no compelling demonstration of a serious injustice that warranted an extension of time.

The court's reasoning and outcome were based on the established principles for granting extensions of time for appeals. Given the lack of a reasonable excuse for the delay and the absence of a compelling demonstration of serious injustice, the application for an extension of time was refused. As a result, the applicant's appeal against their conviction was not permitted.

Orders

Orders of the court

Application for extension of time in which to appeal against conviction refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Daq [2008] QCA 75

Most Recent Citation

R v Carkeet [2008] QCA 143

Cases Citing This Decision

McCullagh v The Queen [2022] HCATrans 43
Citation 1

…As was observed by the Court of Appeal in DAQ [2008] QCA 75 at paragraph [10], which was a case unlike this matter where the applicant had waited until his sentence had almost expired before making the application, Justice Keane noted:…
The Queen v Byrne [2020] QCA 173
Citation 2 (Para 10)

…terest in the finality of litigation, it is in the interests of justice to grant the extension sought; see R v Tait [1999] 2 Qd R 667 at 668; R v DAQ [2008] QCA 75 at [10].…
Ferguson v Wienert [2019] QDC 1
Citation 3

…118 Hutton v RLX Operating Company Pty Ltd & Ors [2016] QSC 248 McDonald v Queensland Police [2018] 2 Qd R 612 Morris v R (1987) 163 CLR 454 R v DAQ [2008] QCA 75 R v Tait [1999] 2 Qd R 667 Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 Rowe v Kemper [2008] QCA 175; [2009] 1 Qd R 247 Searle v Wa…
R v CCE [2018] QCA 176
Citation 4 (Para 11)

…[4][2008] QCA 75 at [11].…
R v SDB [2018] QCA 156
Citation 5 (Para 12)

…sents a compelling demonstration of a serious injustice which can only be corrected on appeal.[8] [7] R v Tait [1999] 2 Qd R 667 at 668 . [8] R v DAQ [2008] QCA 75 at [11].…
R v Ackerman [2017] QCA 214
Citation 6 (Para 23)

…eal, an applicant would have to present “a compelling demonstration of a serious injustice which can be corrected only on appeal”.[4] [3] R v DAQ [2008] QCA 75 per Keane JA at [10]. [4] ibid at [11].…
R v McLeod [2017] QCA 152
Citation 7

…This is not a case such as R v DAQ [2008] QCA 75. In that case, Keane JA[4] discussed the issue of delay in making an application for leave to appeal, observing that:…
R v Smith [2016] QCA 201
Citation 8 (Para 1)

…went on to refer to other factors, including the length of the delay, “it being much easier to excuse a short than a long delay”. In R v DAQ [2008] QCA 75 at [11], Keane JA (with whose reasons McKenzie AJA and I agreed) referred to an example in which an applicant had made a deliberate decision not to appeal an…
R v Buchanan [2016] QCA 33
Citation 9 (Para 39)

…order to institute an appeal, can expect to be given the benefit of an extension where there is an arguable case that an appeal may succeed.” [15][2008] QCA 75. [16] DAQ at [10], Fraser JA and Mackenzie AJA concurring.…
R v Cockrell [2015] QCA 73
Citation 10 (Para 17)

…part to delay bringing this application. Deliberate delay tells against the exercise of the discretion in Mr Cockrell’s favour.[28] [28] R v DAQ [2008] QCA 75, at [10]-[12]; R v Riera [2011] QCA 77, at [16], [22].…
R v Forrester [2013] QCA 329
Citation 11 (Para 1)

…s, an extension of time will be granted only if the applicant also demonstrates that he has an arguable ground (or grounds) of appeal.[1] [1] R v DAQ [2008] QCA 75 per Keane JA at [10], Fraser JA and Mackenzie AJA concurring.…
R v PAP [2013] QCA 288
Citation 12 (Para 10)

…may therefore expect to be granted an extension in circumstances where there is an arguable case, the applicant’s appeal may succeed - see R v DAQ [2008] QCA 75 at [10].…
R v McGrane [2012] QCA 29
Citation 13 (Para 1)

…are not a closed category.[7] Examples of where extensions been granted in the absence of a sufficient explanation for the delay include: [7] R v DAQ [2008] QCA 75 at [9].…
R v Pearce [2011] QCA 290
Citation 14 (Para 1)

…t he has served his sentence and is now released on parole. The approach that the Court ought to take in these circumstances was explained in R v DAQ [2008] QCA 75. That case involved an application for extension of time in which to appeal in circumstances where there had been substantial delay, a deliberate dec…
R v Riera [2011] QCA 77
Citation 15

…0] QCA 46 , cited R v Kovacs [2009] 2 Qd R 51; [2008] QCA 417, cited R v Crofts [1999] 1 Qd R 386; [1998] QCA 60, cited R v DAQ [2008] QCA 75, followed R v Dolan [2008] QCA 41, cited R v Marshall [2010] QCA 43, followed COUNSEL: A Vasta QC, with S A Malcolmson, for the applicant M B Lehane for the respondent SOL…
Woolston v Commissioner for Taxation [2010] QDC 124
Citation 16 (Para 1)

…delay; § whether in the circumstances it is in the interests of justice to grant the extension[1]. [1] R v Tait [1999] 2 Qd R 667 at 668; R v Daq [2008] QCA 75.…
R v. Sinclair [2009] QCA 206
Citation 17 (Para 1)

…hort delay. If the applicant demonstrated that he had a reasonably arguable appeal it would be appropriate to grant an extension of time: see R v DAQ [2008] QCA 75 at [10].…
R v Twidale [2009] QCA 200
Citation 18

…ce of time limit – where proposed appeal not viable – whether the application for extension of time should be granted R v DAQ [2008] QCA 75, cited R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited R v Tindale [2008] QCA 24, applied R v Wheeler & Sorrensen [2002] QCA 223, applied COUNSEL: The applicant appeared o…
R v. Hansen [2008] QCA 351
Citation 19 (Para 1)

…tice of abandoning the appeal was filed. Those are very lengthy delays. This court recently considered the significance of a lengthy delay in R v DAQ [2008] QCA 75 where Keane JA pointed out at [10]-[12] (footnotes omitted): “Delay in making an application is relevant to the exercise of the discretionary power t…
R v Warmisham [2008] QCA 223
Citation 20

…deliberate decision not to appeal and changed his mind only after serving the bulk of his sentence. See R v Tait [1999] 2 Qd R 667 at 668 and R v DAQ [2008] QCA 75 at paragraphs 8 to 11.…
R v Carkeet [2008] QCA 143
Citation 21 (Para 1)

…e of justice the Court retains a discretion to grant the extension even in the absence of a satisfactory explanation for the delay.[3] [2]See R v DAQ [2008] QCA 75 at [9]. [3] R v GV [2006] QCA 394 at [3].…
Richards v. Gold Coast City Council [2008] QDC 91
Citation 22 (Para 1)

…Keane JA, in refusing leave to extend time, stated in R v DAQ [2008] QCA 75:…

See all citing cases →

Cases Cited

R v GV [2006] QCA 394
Citation 1 (Para 1)

…to be given the benefit of an extension where there is an arguable case that an appeal may succeed.[3] [3]Cf R v Lewis [2006] QCA 121 at [3]; R v GV [2006] QCA 394 at [3].…
R v Lewis [2006] QCA 121
Citation 2 (Para 1)

…nstitute an appeal, can expect to be given the benefit of an extension where there is an arguable case that an appeal may succeed.[3] [3]Cf R v Lewis [2006] QCA 121 at [3]; R v GV [2006] QCA 394 at [3].…
R v Tait [1998] QCA 304
Citation 3

…be granted R v GV [2006] QCA 394, cited R v Lewis (2006) 163 A Crim R 169; [2006] QCA 121, applied R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, cited COUNSEL: J C Cremin for the applicant M J Copley for the respondent SOLICITORS: No appearance for the a…
Williams v Spautz [1992] HCA 34
Citation 4

…A Crim R 169; [2006] QCA 121, applied R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, cited COUNSEL: J C Cremin for the applicant M J Copley for the respondent SOLICITORS: No appearance for the applicant Director of Public Prosecutions (Queensland) for the…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v DAQ [2008] QCA 75
PARTIES:	R v DAQ (applicant)
FILE NO/S:	CA No 176 of 2007 DC No 2554 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	4 April 2008
DELIVERED AT:	Brisbane
HEARING DATE:	31 March 2008
JUDGES:	Keane and Fraser JJA and Mackenzie AJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time in which to appeal against conviction refused
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where applicant seeks extension of time in which to appeal against conviction – where application made following a significant delay – where no reasonable excuse is offered for the delay – whether there is a compelling demonstration of a serious injustice which can be corrected only on appeal – whether the application for extension of time in which to appeal against conviction should be granted R v GV [2006] QCA 394, cited R v Lewis (2006) 163 A Crim R 169; [2006] QCA 121, applied R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, cited
COUNSEL:	J C Cremin for the applicant M J Copley for the respondent
SOLICITORS:	No appearance for the applicant Director of Public Prosecutions (Queensland) for the respondent