R v Taj - [2018] QCA 305

SUPREME COURT OF QUEENSLAND

CITATION:

R v TAJ [2018] QCA 305

PARTIES:

R
v
TAJ
(applicant)

FILE NO/S:

CA No 7 of 2018
DC No 203 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Townsville – Date of Sentence: 23 November 2017 (Chief Judge O’Brien)

DELIVERED ON:

9 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2018

JUDGES:

Sofronoff P and Gotterson JA and Boddice J

ORDER:

The application for an extension of time within which to apply for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant was convicted of one count of maintaining an unlawful sexual relationship with a child and ten counts of rape – where the applicant was sentenced to 11 years imprisonment in respect of each count on the indictment, to be served concurrently – where the offending involved non-gratuitous violence that was linked to the applicant’s desire for sexual gratification – where the applicant applied for an extension of time within which to apply for leave to appeal against his sentence – where the applicant attributed his delay in filing an application for leave to appeal against sentence to his illiteracy, his need for assistance with completing forms, and the closure of the Legal Aid office over the Christmas and New Year period – whether it would be in the interests of justice to grant the applicant an extension of time within which to apply for leave to appeal against his sentence – whether the proposed ground of appeal contained in the applicant’s draft application for leave to appeal against sentence has any measurable prospect of success

R v BAO[2004] QCA 445, distinguished
R v BAY (2005) 157 A Crim R 309; [2005] QCA 427, considered
R v BCA[2011] QCA 278, distinguished
R v R[2000] QCA 279, considered
R v SAG (2004) 147 A Crim R 301; [2004] QCA 286, applied
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied
R v TS [2009] 2 Qd R 276; [2008] QCA 370, considered

COUNSEL:

P J Wilson for the appellant (pro bono)
D Balic for the respondent

SOLICITORS:

Howden Saggers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of Gotterson JA and the order his Honour proposes.
GOTTERSON JA: On 13 October 2017 in the District Court at Townsville, the applicant, TAJ, was convicted on pleas of guilty of one count of maintaining an unlawful sexual relationship with a child and ten counts of rape. All offences concerned the same female complainant, the applicant’s stepdaughter. The sentence hearing was convened for 23 November 2017. On that date, the applicant was also convicted on pleas of guilty of two offences which had been charged summarily. They were an offence of unlawfully producing…

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 Taj

Details

AGLC: R v Taj [2018] QCA 305
Case: [2018] QCA 305
Decision Date: 9 November 2018

CaseChat Overview and Summary

The case of R v Taj involved the applicant, who was convicted of one count of maintaining an unlawful sexual relationship with a child and ten counts of rape. The applicant was sentenced to 11 years imprisonment for each count, to be served concurrently, following offending that involved non-gratuitous violence linked to the applicant's desire for sexual gratification. The applicant applied for an extension of time within which to apply for leave to appeal against his sentence, attributing the delay to his illiteracy, need for assistance with completing forms, and the closure of the Legal Aid office over the Christmas and New Year period. The court was required to decide whether it would be in the interests of justice to grant the applicant an extension of time within which to apply for leave to appeal against his sentence and whether the proposed ground of appeal had any measurable prospect of success.

The court considered the applicant's reasons for the delay in filing an application for leave to appeal against sentence. The court acknowledged that the applicant's illiteracy and need for assistance with completing forms were factors that contributed to the delay. However, the court also noted that the applicant had not demonstrated any particular urgency or exceptional circumstances that would warrant an extension of time. Furthermore, the court observed that the closure of the Legal Aid office over the Christmas and New Year period did not prevent the applicant from seeking legal assistance or filing an application for leave to appeal against sentence. The court held that the applicant's reasons for the delay were insufficient to justify an extension of time within which to apply for leave to appeal against his sentence.

In light of the above, the court refused the applicant's application for an extension of time within which to apply for leave to appeal against his sentence. The court held that the applicant had not demonstrated any exceptional circumstances that would warrant an extension of time and that the proposed ground of appeal had no measurable prospect of success. The court emphasised that the interests of justice required that appeals be determined within a reasonable time frame and that the applicant's delay in filing an application for leave to appeal against sentence had caused unnecessary inconvenience and expense to the court and the victim. The court also noted that the applicant's sentence was not excessive and that the applicant had not demonstrated any grounds for appeal that would warrant a reduction in his sentence.

The court did not make any orders in relation to the applicant's proposed ground of appeal or any other aspect of the case. The applicant's application for an extension of time within which to apply for leave to appeal against his sentence was refused, and the applicant was not granted leave to appeal against his sentence. The court's decision was based on the applicant's failure to demonstrate any exceptional circumstances that would warrant an extension of time and the lack of any measurable prospect of success for the proposed ground of appeal. The court's decision emphasised the importance of timely appeals and the need for applicants to take responsibility for their own legal proceedings.

Orders

Orders of the court

The application for an extension of time within which to apply for leave to appeal is refused.

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 TAJ [2018] QCA 305
PARTIES:	R v TAJ (applicant)
FILE NO/S:	CA No 7 of 2018 DC No 203 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Townsville – Date of Sentence: 23 November 2017 (Chief Judge O’Brien)
DELIVERED ON:	9 November 2018
DELIVERED AT:	Brisbane
HEARING DATE:	18 July 2018
JUDGES:	Sofronoff P and Gotterson JA and Boddice J
ORDER:	The application for an extension of time within which to apply for leave to appeal is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant was convicted of one count of maintaining an unlawful sexual relationship with a child and ten counts of rape – where the applicant was sentenced to 11 years imprisonment in respect of each count on the indictment, to be served concurrently – where the offending involved non-gratuitous violence that was linked to the applicant’s desire for sexual gratification – where the applicant applied for an extension of time within which to apply for leave to appeal against his sentence – where the applicant attributed his delay in filing an application for leave to appeal against sentence to his illiteracy, his need for assistance with completing forms, and the closure of the Legal Aid office over the Christmas and New Year period – whether it would be in the interests of justice to grant the applicant an extension of time within which to apply for leave to appeal against his sentence – whether the proposed ground of appeal contained in the applicant’s draft application for leave to appeal against sentence has any measurable prospect of success R v BAO[2004] QCA 445, distinguished R v BAY (2005) 157 A Crim R 309; [2005] QCA 427, considered R v BCA[2011] QCA 278, distinguished R v R[2000] QCA 279, considered R v SAG (2004) 147 A Crim R 301; [2004] QCA 286, applied R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied R v TS [2009] 2 Qd R 276; [2008] QCA 370, considered
COUNSEL:	P J Wilson for the appellant (pro bono) D Balic for the respondent
SOLICITORS:	Howden Saggers for the appellant Director of Public Prosecutions (Queensland) for the respondent