R v S - [2002] QCA 38

[2002] QCA 38

COURT OF APPEAL

DAVIES JA
McPHERSON JA
WILLIAMS JA

CA No 270 of 2001

THE QUEEN

S Applicant

BRISBANE

..DATE 19/02/2002

JUDGMENT

McPHERSON JA: The applicant was convicted and sentenced after a trial by jury in the District Court in May last year. In September he applied for an extension of time within which to appeal against conviction and sentence. He has offered no explanation at all for his delay in appealing and, consequently, as regards the conviction appeal, I would be prepared to dismiss his application on that ground alone.
However, even if that consideration presented no obstacle, the application to extend time to appeal against conviction has no prospect of success. It consists essentially of complaints about the quality of his legal representation at the trial and about the conduct of the trial Judge. The complaints are supported by nothing more than the applicant's unsworn assertions which appear in the notice of application stated in the most general terms, such as "None of my evidence entered"; "Witnesses were not subpoenaed"; "Barrister was not given time to study my case"; "The Judge called the defendant a liar"; and so on. His assertions to that effect are contradicted by the extracts from the trial transcript including the summing-up that have been placed before us and by an affidavit from counsel who appeared for the applicant at the trial. Counsel deals in detail with each of the matters of complaint against him and satisfactorily disposes of them. His affidavit has not been contradicted by evidence from the applicant in any way at all.

So far as sentence is concerned, the applicant was found guilty of three counts of assault occasioning bodily harm committed in 1994 at a time when he was on parole; another five such counts committed on the same woman complainant between October 1998 and March 1999; one count of maintaining a sexual relationship with a child in 1998 and 1999, which was count 10 in the indictment; three counts of wilfully exposing a child under 12 to indecent videotapes; another three of exposing the child to an indecent act; two counts of committing an indecent act on the child; and one of doing grievous bodily harm to the woman complainant.

The victim of the physical assaults was at the time his
de facto wife. Most of them took place after she had, at his insistence, performed indecent acts which the applicant filmed for the purpose of setting up a pornographic business. Some of those acts consisted of performing acts of multiple sex with other adults. The assaults, some of which involved the use or threat of use of a dangerous instrument such as a garden fork, were carried out by the applicant because he was dissatisfied with the standard of the complainant's performance during those indecent acts.

One of the persons with whom she was forced to commit some of the sexual acts was her own nine year old son, who was also 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 S

Details

AGLC: R v S [2002] QCA 38
Case: [2002] QCA 38
Decision Date: 19/02/2002

CaseChat Overview and Summary

In the matter of the application by the applicant, S, for an extension of time to appeal against conviction and sentence, the Court of Appeal comprising McPherson JA, Davies JA, and Williams JA dismissed the application. The applicant was convicted and sentenced after a trial by jury in the District Court in May of the previous year. The applicant sought an extension of time to appeal against the conviction and sentence, citing no explanation for the delay. The application was based on complaints about the quality of the legal representation during the trial and the conduct of the trial judge. The applicant's claims were not substantiated with any evidence beyond general assertions.

The court found that the applicant's complaints were unsupported by the trial transcript and an affidavit from the trial counsel, who refuted the applicant's allegations in detail. The applicant had been found guilty of multiple counts of assault occasioning bodily harm, maintaining a sexual relationship with a child, and other related offences. The court noted the severity of the crimes, the lack of remorse shown by the applicant, and the absence of any prospects of success on appeal. The judges unanimously agreed that the application should be dismissed as there was no reasonable prospect of success on appeal.

The Court of Appeal upheld the decision to refuse the application for an extension of time to appeal against conviction and sentence. The judges confirmed their agreement with the reasoning provided by McPherson JA, emphasizing the lack of any legal errors in the trial judge's summing-up and the absence of any reasonable prospect of success on appeal.

Orders