R v. Schneiders - [2009] QCA 149

SUPREME COURT OF QUEENSLAND

CITATION:

R v Schneiders [2009] QCA 149

PARTIES:

R
v
SCHNEIDERS, Bernard Anthony
(applicant)

FILE NO/S:

CA No 48 of 2009
DC No 43 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED EX TEMPORE ON:

1 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2009

JUDGES:

Holmes and Muir JJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for extension of time dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where applicant convicted of three counts of indecent treatment of a child under 16 years with a circumstance of aggravation – where applicant sought extension of time within which to appeal against convictions on two bases: that counselling prior to pre-trial hearing may have tainted complainant’s evidence, and that, contrary to s 590AE of the Criminal Code, prosecution failed to disclose to defence information about complainant’s counselling – whether extension of time should be granted

COUNSEL:

M F Lillas (sol) for the applicant
M B Lehane for the respondent

SOLICITORS:

Michael Lillas Lawyers for the applicant
Director of Public Prosecutions (Qld) for the respondent

HOLMES JA: The applicant seeks an extension of time within which to appeal against his conviction of three counts of indecent treatment of a child under 16 years, with the aggravating circumstance that the child was under the age of 12 years. He was acquitted of a fourth count of indecent treatment.

The application is brought on the basis that the complainant had received counselling by a psychologist between the date of her complaint to police and her cross-examination in a pre-recorded hearing.

The applicant contends that the prosecution was under an obligation to enquire “as to the nature, degree and circumstances surrounding the counselling sessions”, disclosing the information to the defence. The failure to do so, it is said, deprived the applicant of the opportunity to discredit the complainant's evidence as given in cross-examination, or to seek exclusion of that part of the complainant's evidence given under cross-examination in the pre-recorded hearing.

The chronology of events is this. The complainant spoke to her mother about the applicant's misconduct on 29 December 2004. She took part in a record of interview with police on 31 December 2004. That evidence was adduced as her evidence-in-chief pursuant to s 93A of the Evidence Act 1977 (Qld).

From 17 February 2005 until 1 March 2007, the complainant took part in 26 face to face and two telephone sessions with a counsellor.

On 14 July 2006, the complainant was cross-examined at a pre-recorded hearing. In the course of that cross-examination, she admitted that she had discussed the matters of complaint with her mother and her counsellor. It does not appear that the question was explored further in cross-examination.

On 14 March 2007, 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. Schneiders

Details

AGLC: R v Schneiders [2009] QCA 149
Case: [2009] QCA 149
Decision Date: 1 June 2009

CaseChat Overview and Summary

The case of R v Schneiders involved the applicant, who had been convicted of three counts of indecent treatment of a child under 16 years, with an aggravating circumstance. The applicant sought an extension of time to appeal against his convictions. The basis for this application was twofold: first, the applicant alleged that counselling provided to the complainant prior to the pre-trial hearing may have influenced the complainant's evidence; second, the applicant claimed that the prosecution had not disclosed information about the complainant's counselling as required by section 590AE of the Criminal Code.

The central legal issue before the court was whether the applicant's grounds for an extension of time to appeal were sufficient to warrant such a concession. The court had to consider the potential impact of the alleged tainted evidence and the non-disclosure of counselling information on the fairness of the trial. Additionally, the court was required to evaluate whether the applicant's reasons for the delay in lodging the appeal were justifiable under the circumstances.

The court found that the applicant's reasons for seeking an extension of time were not compelling enough to warrant the relief sought. The court concluded that the applicant's claim regarding the potential influence of counselling on the complainant's evidence was speculative and did not establish a substantial miscarriage of justice. Furthermore, the court held that the alleged non-disclosure of counselling information did not prejudice the applicant's case to a degree that would justify an extension of time. The court emphasised the importance of timely appeals and the need for applicants to provide clear and convincing reasons for any delay. Consequently, the application for an extension of time was dismissed.

Orders

Orders of the court

Application for extension of time dismissed

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 Schneiders [2009] QCA 149
PARTIES:	R v SCHNEIDERS, Bernard Anthony (applicant)
FILE NO/S:	CA No 48 of 2009 DC No 43 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Bundaberg
DELIVERED EX TEMPORE ON:	1 June 2009
DELIVERED AT:	Brisbane
HEARING DATE:	1 June 2009
JUDGES:	Holmes and Muir JJA and McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for extension of time dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where applicant convicted of three counts of indecent treatment of a child under 16 years with a circumstance of aggravation – where applicant sought extension of time within which to appeal against convictions on two bases: that counselling prior to pre-trial hearing may have tainted complainant’s evidence, and that, contrary to s 590AE of the Criminal Code, prosecution failed to disclose to defence information about complainant’s counselling – whether extension of time should be granted
COUNSEL:	M F Lillas (sol) for the applicant M B Lehane for the respondent
SOLICITORS:	Michael Lillas Lawyers for the applicant Director of Public Prosecutions (Qld) for the respondent