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…

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 SAO

Details

AGLC: R v SAO [2005] QCA 115
Case: [2005] QCA 115
Decision Date: 14 April 2005

CaseChat Overview and Summary

The case of R v SAO involved the applicant appealing against his conviction for using the internet to procure a person whom he believed to be a child under 16 to engage in a sexual act. The applicant lodged his notice of appeal three months after the conviction. The Crown initially opposed the extension of time but later withdrew its opposition at the appeal hearing. The central legal issue was whether it was appropriate to grant an extension of time for the applicant to lodge his appeal. The applicant argued that he had some prospects of appellate success on a misdirection point.

The court considered the applicant's prospects of success on appeal, the explanation for the delay in lodging the notice of appeal, and the effect of the delay on the administration of justice. It found that the applicant had some prospects of appellate success regarding the misdirection issue, which was sufficient to warrant an extension of time. The delay was attributed to the applicant's legal representation and not to any fault on his part. The court concluded that the delay did not significantly affect the administration of justice, as the proceedings had not yet commenced and the respondent had not been prejudiced.

Accordingly, the court granted the application to extend the time in which to appeal against conviction until 22 April 2005. The court emphasised the importance of considering the merits of the appeal and the reasons for the delay, rather than merely focusing on the technical aspect of the time limit. The decision underscores the principle that justice should not be denied on technical grounds where the applicant has a reasonable prospect of success on the merits.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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