R v Riera

[2011] QCA 77

SUPREME COURT OF QUEENSLAND

CITATION:

R v Riera [2011] QCA 77

PARTIES:

R
v
RIERA, Frank
(applicant)

FILE NO/S:

CA No 284 of 2010
DC No 303 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Innisfail

DELIVERED ON:

21 April 2011

DELIVERED AT:

Brisbane

HEARING DATE:

2 March 2011

JUDGES:

Chesterman JA, Ann Lyons and Martin JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order 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 applicant found guilty by a jury of two counts of indecent treatment of a child under the age of 16 on 30 October 2009 – where applicant now seeks an extension of time in which to appeal against conviction – where application made following significant delay – where applicant argues the delay is explained by serious depression, a change in counsel and a delay in receiving the transcript and summing up from the hearing – whether, if extension of time refused, there is a compelling demonstration of a serious injustice which can be corrected only on appeal – where applicant argues primary judge erred in allowing preliminary complaint evidence to go before the jury at trial; in allowing a support person to be present at the trial and in imposing a single sentence for both counts – whether application for an extension of time should be granted

Criminal Code 1899 (Qld), s 668E(1),
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A, s 5(1)(h)
Evidence Act 1977 (Qld), s 21A, s 93A
Penalties and Sentences Act 1992 (Qld), s 188

R v AW[2005] QCA 152, cited
R v CAU[2010] 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

SOLICITORS:

Bruce K Gillan Solicitor for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. CHESTERMAN JA:  The application to extend time for filing a notice of appeal against conviction should be refused for the reasons given by Ann Lyons J. 

1. The applicant’s submissions in relation to the reception of evidence of preliminary complaints would have been compelling had the evidence been objected to at trial.  As it was evidence of what was regarded as preliminary complaints was opened and led without objection from counsel who represented the applicant at his trial.  It is not possible from the record to discern whether the lack of objection was due to a failure to appreciate that the evidence could have been successfully objected to,…