McMURDO JA: On 6 December 2013, after a trial in the District Court, the applicant was convicted by the jury of three counts of rape, and a further count of indecent treatment of a child under 16 and under his care. The complainant was his 12 year old daughter.

He appealed against those convictions by a notice of appeal filed on 11 February 2014. That was filed out of time but the respondent, on that occasion, consented to an extension. His appeal was heard in November 2015 and dismissed in February 2016: see R v KAM [2016] QCA 35.

He was sentenced in March 2014 for these offences. On each of the counts of rape, he was ordered to serve eight years’ imprisonment, with a concurrent sentence of 18 months for the indecent treatment offence. His parole eligibility date was fixed at the half way mark.

He now applies for an extension of time within which to appeal against his sentences. He also seeks to appeal again against his conviction. Where an appeal against conviction has been dismissed, it is well established that the Court has no jurisdiction to hear a further appeal against conviction: see eg. R v MAM [2005] QCA 323; R v Nudd [2007] QCA 40 and R v Lumley [2008] QCA 155 and [2009] QCA 172. These and other judgments to the same effect have applied Grierson v The King (1938) 60 CLR 431, which held that where a right of appeal is provided by a statute in terms such as in s 668D of the Criminal Code (Qld), the statute is to be interpreted as allowing for only one appeal. Consequently, his application for an extension of time in which to appeal against conviction must be refused.

His proposed appeal against sentence would be upon the ground that the sentences, more particularly the eight year concurrent terms for the rape offences, were manifestly excessive.

His application for an extension of time within which to appeal was filed last November, more than two and half years after he was sentenced. He filed an amended application on 30 January this year, which for the most part, raised complaints about his convictions rather than his sentence, although it did complain that the sentence was manifestly excessive. The applicant is without legal representation, as he was at the trial and at his unsuccessful appeal against conviction. He says that he has not had the means to pay for private representation and that he has not been granted legal aid. He says that he has had limited access to computers because he has been in prison. He has the further difficulty that English is not his first language. He came to this country as a refugee from the French Congo. All…

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 KAM (No 2)

Details

AGLC: R v KAM (No 2) [2017] QCA 197
Case: [2017] QCA 197
Decision Date: 7 SEPTEMBER 2017

CaseChat Overview and Summary

The applicant in this case, KAM, was convicted in the District Court of multiple counts of rape and indecent treatment of a child under 16 and under his care, specifically his 12-year-old daughter. Following his conviction, KAM appealed against the decision, which was ultimately dismissed. He now seeks an extension of time to appeal against both his conviction and sentence. The legal issues presented to the Court were whether the Court had jurisdiction to hear a second appeal against conviction, and whether the sentence imposed was manifestly excessive.

The Court found that it did not have jurisdiction to hear a second appeal against conviction, as established by previous case law. The Court noted that the applicant had not provided a satisfactory explanation for the significant delay in appealing his sentence. However, the Court also considered whether the sentence was manifestly excessive. The Court compared the sentence imposed on KAM to similar cases and found that the sentence was within the range available to the sentencing judge. The Court concluded that the applicant's proposed appeal against sentence had no merit.

The Court refused the applicant's application for an extension of time in which to appeal against sentence. The Court found that the sentence imposed was within the range available to the sentencing judge, and that the applicant's proposed appeal against sentence had no merit. The Court's order was that the application for extension of time in which to appeal against sentence was refused.

Orders