R v SDB

Case [2018] QCA 156

SUPREME COURT OF QUEENSLAND

CITATION:

R v SDB [2018] QCA 156

PARTIES:

R
v
SDB
(applicant)

FILE NO/S:

CA No 193 of 2017
DC No 330 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 11 November 2015 (Harrison DCJ)

DELIVERED ON:

6 July 2018

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2018

JUDGES:

Sofronoff P and McMurdo JA and Boddice J

ORDER:

Application for an extension of time within which to appeal the applicant’s convictions is refused.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – SENTENCE – PARTICULAR CASES – RAPE AND SEXUAL ASSAULT – where the applicant was convicted by a jury of one count of common assault and two counts of rape – where the complainant was a child at the time of the alleged offences

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant seeks to appeal those convictions – where the applicant requires grant of an extension of time in order to appeal those convictions – where there is a significant delay – where the alleged offences occurred 10 years prior to the application for an extension of time within which to appeal – whether there is good reason shown to account for the delay – where the applicant is Indigenous, has limited education and legal resources, and has health issues – whether it is in the interests of justice to grant an extension of time – whether the basis for the proposed appeal supports such a conclusion – where the complainant gave specific and consistent evidence at trial – where other witnesses corroborated comments made to them by the complainant about the offending – where it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of each offence – where the application to grant an extension of time within which to appeal the convictions is refused

R v DAQ[2008] QCA 75, followed
R v Sun[2018] QCA 24, cited
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied

COUNSEL:

The applicant appeared on his own behalf
D C Boyle for the respondent

SOLICITORS:

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

  1. SOFRONOFF P:  I agree with the reasons of Boddice J and the order his Honour proposes.

  2. McMURDO JA:  I agree with Boddice J.

  3. BODDICE J:  On 11 November 2015, the applicant was convicted by a jury of one count of common assault (count 1) and two counts of rape (counts 2 and 3).  He was sentenced to one month imprisonment on count 1, and eight years imprisonment on counts 2 and 3.

  4. On 28 August 2017, the applicant filed an application for an extension of time within which to appeal those convictions.  His proposed grounds of appeal, should…

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Details
AGLC
R v SDB [2018] QCA 156
Case
[2018] QCA 156
Decision Date

CaseChat Overview and Summary

The case of R v SDB concerns the applicant's appeal against his convictions of one count of common assault and two counts of rape, offences committed against a child. The applicant sought an extension of time to appeal those convictions, which he was unable to do within the prescribed time limit. The applicant's grounds for appeal, should the extension be granted, were that there was insufficient evidence to support the convictions and that there had been a miscarriage of justice due to his barrister's conduct.

The legal issues the court had to address were whether there was good reason to account for the significant delay in seeking an extension of time and whether it was in the interests of justice to grant such an extension. The applicant's circumstances, including his Indigenous background, limited education, lack of legal resources, and health issues, may have contributed to the delay. However, the court needed to consider the overall circumstances, including the viability of the appeal and the evidence presented at trial.

The court concluded that, while the applicant's circumstances may have contributed to the delay, they did not support a finding that it was in the interests of justice to grant an extension of time. The complainant's evidence was specific and consistent, and the jury was properly directed on the matters to consider in determining the applicant's guilt. The proposed grounds of appeal did not present a compelling demonstration of a serious injustice that could only be corrected on appeal. Consequently, the application for an extension of time within which to appeal the applicant's convictions was refused.

The court's decision was based on the thorough consideration of the complainant's evidence and the overall circumstances of the case, which did not support the conclusion that it was in the interests of justice to grant an extension of time. The application for an extension of time within which to appeal the applicant's convictions was therefore refused.

Orders

Orders of the court

Application for an extension of time within which to appeal the applicant’s convictions is refused.

Background

Background to the litigation

On 28 August 2017, the applicant filed an application for an extension of time within which to appeal those convictions. His proposed grounds of appeal, should the extension be granted, were that there was insufficient evidence to support the convictions and there had been a miscarriage of justice by his barrister.Background The applicant was born on 23 November 1949. He is indigenous. He has limited education and resources. He suffers from poor health. The complainant in each count was a male born on 27 April 1995. The complainant’s great uncles were close friends of the applicant. The complainant called him “Grandad G”, for respect. The offences were all committed between September and October 2008, when the complainant was 13 years of age and living at his grandmother’s house. The applicant was also staying in that house. The jury’s verdicts of guilty followed a two day trial. The male complainant who was, at the time of trial, aged 20, gave evidence. Three other female witnesses also gave evidence for the prosecution. The applicant elected neither to give, nor call evidence at the close of the prosecution case. The complainant gave evidence he was watching a movie with the applicant in the lounge room inside his grandmother’s house when the applicant grabbed his hand tightly and said “I will see you later on”.[1] The complainant could not go anywhere whilst the applicant had hold of his hand. The complainant thought he had done something bad. His hand hurt and there were tears coming down his face. This event formed count 1.[1]T1-17/27. The complainant then went into a second lounge room where his cousin, T, was asleep on the couch. He sat down next to her and tried to wipe away his tears. He fell asleep. He awoke to the applicant trying to wake him. He pretended to be asleep because he thought he was going to be “flogged”, for whatever reason.[2] The complainant at that stage was positioned on his stomach, wearing a shirt, long pants and underwear. The applicant was wearing shorts and a rolled up shirt.[2]T1-18/35. The applicant was touching himself, “playing with his genitals”.[3] He was also touching the complainant’s backside. The complainant tried to escape to the other side of the couch, but the applicant grabbed his hands and laid the complainant on his back, on the ground in front of the couch. The applicant then spread the complainant’s legs and forced his penis into the complainant’s “bum”. It went on for five or six minutes. The applicant was saying “Shush, be quiet, shut up.” Afterwards he said “don’t tell anyone, or else”.[4] This event formed count 2.[3]T1-19/7.[4]T1-20/5. The complainant said sometime after that episode, during the September 2008 school holidays when the complainant was in grade eight, he was upstairs in the kitchen cleaning the dishes. The applicant kissed him on the neck and then punched him to the ground. At the time the complainant’s grandparents, uncles, aunties and cousins were all downstairs drinking and playing loud music. No one else was upstairs in the house.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

A consideration of the complainant’s evidence and of that evidence as a whole, supports the findings of guilty of each count beyond reasonable doubt. The differences raised by that evidence were matters for the jury’s consideration. The jury was properly directed in relation to the matters to take into account in determining whether, in respect of each count, they were satisfied beyond reasonable doubt of the applicant’s guilt of that offence.Conclusion A consideration of the whole of the circumstances, supports a conclusion that it is not in the interests of justice to grant an extension of time within which to appeal the applicant’s convictions. I would order that the application for an extension of time within which to appeal the applicant’s convictions be refused.

Ratio Decidendi

Legal Principle Established

The respondent further submitted there is no basis to conclude the conduct of defence counsel occasioned a miscarriage of justice. The matters raised by the applicant, in support of his application for an extension of time within which to appeal, were matters expressly the subject of cross examination of the complainant.Consideration In determining whether to grant an extension of time in which to appeal a conviction, a court will examine whether there is good reason shown to account for the delay and whether overall, it is in the interests of justice to grant the extension. Those overall considerations may involve some assessment of whether the appeal seems to be viable.[7] Where there has been a deliberate decision not to appeal initially, the discretion to allow the appeal to proceed should be exercised only where the applicant presents a compelling demonstration of a serious injustice which can only be corrected on appeal.[8][7]R v Tait [1999] 2 Qd R 667 at 668.[8]R vDAQ [2008] QCA 75 at [11]. The applicant’s application involves a lengthy delay in seeking to appeal his convictions. His explanation for the delay is that he has limited education and limited legal resources. There were also health concerns. Those matters, in the applicant’s particular circumstances, may account for his delay in seeking to appeal his convictions. However, a consideration of his circumstances overall, including the basis for the proposed appeal, does not support a conclusion that it is in the interests of justice to grant the extension. The complainant gave specific and consistent evidence in relation to his hand being held forcefully against his will and two acts of anal penetration against his express resistance. Whilst there were inconsistencies in aspects of the complainant’s evidence, the complainant maintained those central assertions in cross-examination. The complainant gave an explanation for not complaining at the time of the offences. The complainant said after the events in counts 1 and 2, he was scared. He thought he would get punished for telling someone. He was 12 years of age at the time. Further, the matters relied upon by the applicant to support a contention that the jury ought to have had a reasonable doubt about the truth and accuracy of the complainant’s account, were the subject of specific cross-examination by the applicant’s counsel. The complainant gave an explanation of how the first act of rape could occur, notwithstanding his cousin sleeping soundly beside him, and why he did not call out to others in the household. His cousin is a heavy sleeper. While the applicant was pulling off the complainant’s clothes, the complainant tugged on her hand to try and wake her up. She was of no use. The complainant tried to kick the applicant away whilst he was still on the couch. His cousin still did not wake up. The complainant did not yell out because he knew no one would help him as they were all asleep in bed. The complainant said he continued to struggle, but the applicant pinned him down so that he could not move. The episode on the ground went for about five minutes and he tried to get away the whole time. The complainant said the applicant’s hips were on the bottom of the complainant’s hips. He denied it was not possible for the applicant to rape him in that position.