R v SAO

[2005] QCA 115

SUPREME COURT OF QUEENSLAND

CITATION:

R v SAO [2005] QCA 115

PARTIES:

R
v
SAO
(applicant)

FILE NO/S:

CA No 8 of 2005
DC No 1089 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

14 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

14 April 2005

JUDGES:

McPherson JA, Jerrard JA and Helman J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application granted extending the time in which to appeal against conviction until 22 April 2005

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – applicant lodged notice of appeal three months after he was convicted of using the internet to procure a person whom he believed to be a child under 16 to engage in a sexual act – Crown initially opposed the extension of time but withdrew its opposition at appeal hearing – applicant had some prospects of appellate success on a misdirection point – whether appropriate to grant an extension of time

Criminal Code 1899, s 218A

COUNSEL:

The applicant appeared on his own behalf
D Meredith for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA:  I will ask Mr Justice Jerrard to give our ruling on this matter.

JERRARD JA: What s 218A of the Criminal Code under which the applicant was convicted provides is that evidence that the person was represented to the adult as being under the age of 16 years, or 12 years as the case may be, is, in the absence of evidence to the contrary, proof that the adult believed that that person was under that age.

Section 218A(9) then provides that it is a defence to a charge under that section to prove that the adult believed on reasonable grounds that the person was at least 16 years, or 12 years as the case may be.

Mr SAO clearly failed to establish any defence to the charge under s 218A(9) by evidence he apparently gave that he did not have any belief one way or the other as to whether the "KC" with whom he was communicating was 16 years of age or over.

But failing to establish a defence under s 218A(9) does not affect the question whether the prosecution had established that the adult charged with the s 218A offence believed the person with whom the adult was communicating was under the age of 16.

A defendant might give no evidence at all in which case
s 218A(9) would probably be irrelevant but the prosecution would still need to establish the fact of the adult's belief that the person the adult was procuring to engage in a sexual act was under the age of 16.

Mr SAO has an argument to be heard on an appeal that evidence he apparently gave that he had no belief one way or the other was relevant or was evidence to the contrary of a belief by him that she was under the age of 16.

The answer may well depend upon the proper construction of
s 218A and whether the phrase "in the absence of evidence to the contrary" qualifies the representation to the adult or the belief of the adult. Mr Meredith for the respondent contended on this application that the phrase referred only to evidence to the contrary of the representation, and that submission may well be accurate. However it is arguable that it either refers as well or refers only to evidence to the contrary of the belief.

If the proper construction is either of the latter ones then there was an arguable misdirection by the learned trial judge who took that issue from the jury.

In those circumstances it appears to me that Mr SAO does have an argument to be heard on its merits that his conviction on 12 October 2004 of the offence of using the internet to procure a person whom he believed to be a child under the age of 16 years to engage in a sexual act was a miscarriage of justice and for that reason I would be inclined to make an order as he seeks granting him an extension of time within which to file a notice of appeal against that conviction.

The respondent did not oppose the application for an extension of time, it having had regard to the affidavit material filed by Mr SAO in support of that application.  That was a very proper attitude for the respondent Crown to adopt and I need not even describe those circumstances.

I order that Mr SAO be granted an extension of time until 15 April 2005 within which to file a notice of appeal against his conviction on 12 October 2004 for an offence against
s 218A of the Criminal Code.

I note that he does not press an application for leave to appeal against the sentence.

After discussion with Justice McPherson I would propose to amend that order described to grant him an extension of time until the 22nd of April 2005 so that he may, if he has listened to these reasons, amend his notice of appeal.

McPHERSON JA:  I agree.
HELMAN J:  I agree.

McPHERSON JA:  There will be an order extending the time within which to appeal against the conviction in this case until the 22nd of April 2005.

The order that we have made here will of course be transcribed and the applicant can ask for a copy of it, insofar as it is necessary to seek further elucidation of the point in issue beyond that explained in Justice Jerrard's judgment.

That is the order we will make.  You have an extension for a week.  You can either work it out yourself pretty soon, or see a solicitor or lawyer about formulating the grounds in the application, which you have essentially about a week to file.

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