R v PAP - [2013] QCA 288

[2013] QCA 288

COURT OF APPEAL

MARGARET McMURDO P

MULLINS J

HENRY J

CA No 178 of 2013
DC No 557 of 2010

THE QUEEN

PAP Applicant

BRISBANE

THURSDAY, 3 OCTOBER 2013

ORDER

HENRY J: On 5 March 2013 the applicant pleaded guilty in the District Court to three counts of indecent treatment of a child under 12 years, three counts of indecent treatment of a child under 16 years and one count of rape. The applicant was sentenced to concurrent sentences of two years imprisonment on each of the six indecent treatment of a child offences and four years imprisonment for the rape offence. The sentencing judge ordered that the terms of imprisonment be suspended after the applicant had served 18 months imprisonment for an operational period of five years.

The offences were committed against the applicant’s granddaughter over a period of about six years. The offence of rape involved digital penetration of the child’s vagina when she was about 13 years of age. The other offending conduct included the applicant kissing the child’s breasts and body, licking her vagina, having her take hold of the applicant’s erect penis and rubbing it, touching her mouth with his penis, rubbing his erect penis against her vagina and touching her vagina with his fingers.

On 11 July 2013, the applicant filed an application for an extension of time within which to appeal and an accompanying application for leave to appeal against his convictions. The applications were received more than three months out of time. At the time of the hearing of the applications, the applicant has not filed or served an outline of argument with respect to them. The grounds of the applications therefore fall solely for consideration by reference to their content and of course the record of proceeding before the Lower Court.

With respect to the application for extension of time, the applicant asserts he received a letter after the lapse of the appeal period, notifying him that at the time the offences occurred he was working in the Northern Territory. The application for leave to appeal against his convictions heralds two potential grounds of appeal. Firstly, that he was told by his solicitor to enter a plea of guilty and secondly, that he has an alibi. In determining whether the applicant should be granted an extension of time within which to appeal, the court should consider whether any good reason has been shown by the applicant to account for the delay in filing his application and consider whether the interests of justice favour the granting of the extension - see R v Tait [1999] 2 Qd R 667 at 668. An applicant for an extension of time 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].

At the time of the hearing of the application the applicant failed to advance any sufficient explanation or reason…

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 PAP

Details

AGLC: R v PAP [2013] QCA 288
Case: [2013] QCA 288
Decision Date: 3 OCTOBER 2013

CaseChat Overview and Summary

The Court of Appeal in Queensland heard an application from PAP, who sought an extension of time and leave to appeal against his convictions and sentences for multiple counts of indecent treatment of a child under 12 years and 16 years, as well as rape. The applicant had pleaded guilty to these charges in the District Court and was sentenced to concurrent terms of imprisonment. The applicant filed the application for extension of time and leave to appeal more than three months after the appeal period had lapsed. The application was heard without an outline of argument from the applicant and no other material was provided to the court.

The legal issues before the Court of Appeal were whether the applicant had shown good reason for the delay in filing his application for an extension of time and whether the applicant had a prospect of success on appeal. The Court noted that the applicant’s potential grounds for appeal were that he was told by his solicitor to plead guilty and that he had an alibi. The Court considered whether the applicant had shown good reason for the delay in filing his application and whether the interests of justice favoured granting the extension. The Court also considered whether the applicant had shown any prospect of success on appeal.

The Court found that the applicant had not provided any sufficient explanation or reason for the delay in filing his application for an extension of time. The applicant had referred to a letter he received between April and May 2013, alerting him to a potential alibi, but no explanation as to why it took him a further two months to file his application was provided. The Court also found that the applicant had not shown any prospect of success on appeal. The potential ground of appeal that the applicant was told by his solicitor to plead guilty was not supported by any evidence, as the person named as the applicant’s solicitor was in fact his barrister. The Court found that the applicant had entered pleas of guilty in open court in the exercise of free choice after receiving legal advice. The second potential ground of appeal, the applicant’s purported alibi, was also not supported by any evidence, as the letter from Mr Austin, allegedly a justice of the peace, had not been filed in support of the application or tendered. The Court found that the applicant had not demonstrated that any miscarriage of justice that could justify his pleas of guilty being set aside occurred.

The Court of Appeal refused the application for an extension of time within which to appeal, finding that the applicant had not shown good reason for the delay in filing his application or any prospect of success on appeal. The order was that the application for an extension of time was refused.

Orders