R v RT - [2004] QCA 276

SUPREME COURT OF QUEENSLAND

CITATION:

R v RT [2004] QCA 276

PARTIES:

R
v
RT
(applicant)

FILE NO/S:

Appeal No 163 of 2004
DC No 3369 of 1999
DC No 3370 of 1999
DC No 389 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction and Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

3 August 2004

DELIVERED AT:

Brisbane

HEARING DATE:

3 August 2004

JUDGES:

McMurdo P, Williams JA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for extension of time within which to appeal refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABONDONMENT – where plea of guilty entered – where applicant provided insufficient reasons for delay of more than three years – whether any appeal brought on the grounds identified by the applicant so far must inevitably fail – whether there has been a miscarriage of justice

R v Lewis; ex parte A-G (Qld) [2003] QCA 133, CA No 319 of 2002, CA No 339 of 2002, 25 March 2003, cited
R v MacKenzie [2000] QCA 324, (2000) 113 A Crim R 534, cited

COUNSEL:

Applicant appeared on his own behalf
B G Campbell for the respondent

SOLICITORS:

Applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for respondent

DUTNEY J: This is an application for an extension of time within which to appeal.

On 20 October 2000, the applicant pleaded guilty in the District Court to three counts of indecent treatment of one of his daughters who was then under 12, two counts of indecent treatment of another of his daughters also under 12 years of age and one count of maintaining a sexual relationship with a child in his care together with five counts of unlawful carnal knowledge of that child. The offences of maintaining a sexual relationship and carnal knowledge concerned an unrelated child who was in the applicant's custody.

The applicant was sentenced to terms of four years' imprisonment in relation to the offences against each of his daughters and six years' imprisonment in relation to the offences against the third child. The sentences were all concurrent and, by reason of the grant of credit for time spent in custody on remand, effectively commenced on 11 May 1999. If the applicant serves the full term of his imprisonment he will be released in nine months.

Since this is an application to appeal against conviction following a plea of guilty the applicant will ultimately, if successful here, have to demonstrate to the Court hearing the appeal that the acceptance of the plea has produced a miscarriage of justice, see R v MacKenzie [2000] QCA 324; (2000) 113 A Crim R 534 at [31] and [32], and R v Lewis; ex parte A-G…

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 RT

Details

AGLC: R v RT [2004] QCA 276
Case: [2004] QCA 276
Decision Date: 3 August 2004

CaseChat Overview and Summary

In the matter of the criminal appeal by RT, the respondent sought to appeal the conviction and sentence imposed by the trial judge in the District Court of Queensland. The respondent had previously entered a guilty plea to charges of serious criminal offences and was subsequently sentenced. The respondent now sought to appeal the conviction and sentence on the basis of certain grounds that were not previously raised at the time of the conviction or during the original appeal. The primary grounds for appeal included alleged errors in the admission of evidence, procedural errors, and the assertion of a miscarriage of justice. The appeal hinged on the respondent's ability to demonstrate that the delay in bringing the appeal was justified and that the appeal itself had a reasonable chance of success.

The court was tasked with determining whether the respondent's application for an extension of time to appeal should be granted. The legal issues before the court included whether the respondent had provided sufficient reasons for the delay in bringing the appeal, whether the appeal was likely to succeed on the grounds presented, and whether the delay had caused any injustice to the respondent or the Crown. The court also had to consider whether the appeal was an abuse of process or whether there were exceptional circumstances that warranted an extension of time.

The court found that the respondent had not provided sufficient reasons for the significant delay in bringing the appeal. The respondent's reasons were deemed inadequate as they did not sufficiently address the lengthy delay or demonstrate any exceptional circumstances. The court also concluded that the appeal was unlikely to succeed on the grounds presented, as the issues raised did not constitute errors that would warrant a new trial or appeal. Furthermore, the court found that the delay had not caused any miscarriage of justice or significant prejudice to the respondent or the Crown. As a result, the court refused the application for an extension of time to appeal.

In light of the above, the court dismissed the respondent's application for an extension of time within which to appeal the conviction and sentence. The court emphasised that the failure to provide adequate reasons for the delay and the unlikelihood of success on the grounds presented were critical factors in reaching its decision. The court's refusal to grant the extension of time meant that the respondent's appeal would not proceed, and the original conviction and sentence would stand.

Orders

Orders of the court

Application for extension of time within which to appeal refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v RT [2004] QCA 276
PARTIES:	R v RT (applicant)
FILE NO/S:	Appeal No 163 of 2004 DC No 3369 of 1999 DC No 3370 of 1999 DC No 389 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction and Sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	3 August 2004
DELIVERED AT:	Brisbane
HEARING DATE:	3 August 2004
JUDGES:	McMurdo P, Williams JA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time within which to appeal refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABONDONMENT – where plea of guilty entered – where applicant provided insufficient reasons for delay of more than three years – whether any appeal brought on the grounds identified by the applicant so far must inevitably fail – whether there has been a miscarriage of justice R v Lewis; ex parte A-G (Qld) [2003] QCA 133, CA No 319 of 2002, CA No 339 of 2002, 25 March 2003, cited R v MacKenzie [2000] QCA 324, (2000) 113 A Crim R 534, cited
COUNSEL:	Applicant appeared on his own behalf B G Campbell for the respondent
SOLICITORS:	Applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for respondent