Heard v The Queen

[1989] TASSC 128

Serial No B50/1989
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Heard v R [1989] TASSC 128; B50/1989

PARTIES:  HEARD, Michael John
  v
  R

FILE NO:  CCA 103/1989
DELIVERED ON:  1 December 1989
JUDGMENT OF:  Underwood J

Judgment Number:  B50/1989
Number of paragraphs:  14

Serial No B50/1989
File No CCA 103/1989

MICHAEL JOHN HEARD v THE QUEEN

REASONS FOR JUDGMENT  UNDERWOOD J

1 December 1989

1. The applicant seeks an order extending the time within which notice of appeal to the Court of Criminal Appeal may be given.

1. On 13 July 1989 in the Supreme Court of Burnie, the appellant was found guilty of one count of burglary and one count of rape. He was sentenced to three years' imprisonment. The time prescribed by the Code, s407(1), for the filing of a notice of appeal expired on 28 July 1989. This application was filed on 7 September 1989. Section 407(5) gives the Court of Criminal Appeal a discretion to make the order sought and, by virtue of s418(1) this discretion can be exercised by a judge of the court. The statute prescribes no fetters on the exercise of the discretion but of course, it must be exercised judicially.

1. In R v Liosatos [1964] SASR 40 the following passage in the joint judgment of the court appears at p41:

"Recently (in R v Brown [1963] SASR 190) this Court had occasion to consider the principles upon which it should exercise its discretion to extend the time for appeal. Applying the principles there laid down, we think that there are three aspects to be considered: (1) the length of the delay; (2) the explanation offered; and (3) the grounds of appeal; but another consideration which cannot be overlooked is whether the applicant had competent legal assistance at and after his trial."

1. The relevant consideration expressed in Liosatos and Brown were adopted by Neasey J in Maynard v The Queen 36/75 as being "a succinct statement of the principal relevant considerations on these applications". I respectfully agree with that but, as the statute does not impose any constraints upon the exercise of the discretion, would observe that such considerations are not necessarily the only considerations applicable to every case.

1. Notwithstanding the considerable delay in lodging this application, learned counsel for the Crown expressly confined his opposition to the application to the proposition that there was no substance in any of the proposed grounds of appeal. Those proposed grounds, as put on the hearing of this application, were:

"1That the learned trial judge erred in fact and in law in admitting into evidence the following:

(a)an alleged statement made by the accused six weeks prior to the crime that 'he would not mind fixing up' the complainant.

(b)a photograph of a pair of underpants.

(c)a sketch showing the hairstyle of the rapist.

(d)evidence that demonstrated that the accused, together with a further 19% of the population, had consistent blood groupings with the perpetrator of the crime."

1. The Crown case was that in the early hours of the morning of 20 February 1989 at Savage River, the accused got into the complainant's house and raped her when she was asleep in her bed. The issue at the trial was the identity of her assailant. The Crown case relied heavily on a typed record of interview made and signed by the applicant. It contained a very full and detailed account by the applicant of his commission of the crimes. Without the admissions in that record of interview no reasonable jury could have convicted the applicant. The learned trial judge directed the jury to that effect. The applicant made an unsworn statement in which he denied any involvement in the burglary and rape. He admitted making the admissions in the record of interview, but claimed that they were made because the interrogating officer put verbal pressure on him and at one point threatened to "smack [him] in the back of the head".

1. The complainant, a young married woman, lived at Savage River with her husband who was a shift worker at the mine. On 19 February he went to work at about 11.pm and by midnight, the complainant was asleep in bed. She was awoken by a naked man rolling over her. Initially, she thought that he was her husband but soon realised that he was not. The assailant immediately penetrated the complainant and during the next few minutes held her hands to prevent her turning on the bedside light and tried to put his tongue in her mouth. The assailant ejaculated and got up from the bed. The complainant then turned on the light and saw the back of a naked man leaving her room. She described her attacker as a male aged between 18 and 30 years, clean shaven, wiry build and with very pale skin. She said that he had "browny, gingery" coloured hair, "wavy and curling out from the top of his head" and "slightly longer than the nape of his neck". She later described her assailant's hair to a police officer and he made a sketch in accordance with her description. Of this sketch the complainant said in evidence that it showed a likeness to what she had observed at the relevant time. The sketch became an exhibit and its admission was expressed, by then counsel for the applicant, to be without objection.

1. Upon this application counsel for the applicant submitted that the learned trial judge erred in law in admitting the sketch on the grounds that it was irrelevant as there was no evidence that the accused had hair of that length on the day the crime was committed. During the course of argument I gathered that, at the trial, the applicant's hair did match the description depicted in the sketch. It was submitted to me in the alternative that the learned trial judge should have exercised his discretion to exclude the evidence on the basis that its prejudicial value outweighed its probative value. Apart from the fact that the applicant's then counsel expressly told the learned trial judge that he had no objection to the sketch becoming an exhibit I can discern no possible basis on which it could be said that the judge should have exercised his discretion to exclude this evidence. It is true that by the end of the Crown case there was no evidence that, at the time the crime was committed, the accused's hair was of the length and general description depicted by the sketch, but this omission was clearly pointed out to the jury by the learned trial judge in the course of his summing up. When identity is in issue similarity or dissimilarity of personal characteristics can be described presumptively. The sketch was simply an appropriate means of describing a personal characteristic of the person who attacked the complainant.

1. The Crown case was that the accused took all his clothes off behind an unoccupied house next door to the complainant's home, that he then entered her house and, after committing the crime, fled the scene, collected his clothes and dressed in a vacant allotment next to his own home. The Crown case was that, in the course of dressing, the accused left behind his underpants which were found later by the police. The fact that his underpants were left behind was admitted by the applicant in the course of the record of interview. Some person unknown took a polaroid photograph of a pair of underpants. There was no evidence of where the underpants were when the photograph was taken. The photograph was shown to the accused during the record of interview. The following is the relevant part of that interview:

"Q96When you got undressed at home after the rape did you notice any of your clothing missing.

AYes, me knickers.

Q97I will show you a photograph of a pair of blue coloured underpants with coloured bands, what can you tell me about this photograph.

AWell these are my knickers and they are the ones I wore that night.

Q98Are you willing to sign that photograph to identify it as being the photograph we are referring to.

AYes.

Photograph handed to HEARD which he signed and same was witnessed by Sergeant DANIELS and Sen Const BARBER."

1. Counsel for the applicant submitted that the admission of the photograph was an error of law as it was irrelevant or alternatively, it should have been excluded from the evidence in the exercise of the trial judge's discretion on the basis that its prejudicial value outweighed its probative value. It was admitted without objection. Its exclusion on the basis that its prejudicial value outweighed its probative value was not sought at the trial nor is there any basis for suggesting that the proper exercise of the trial judge's discretion required its exclusion on that basis. The photograph was relevant in that it formed part of the record of interview, but in the absence of evidence of where the underpants were when they were photographed, it added little or nothing to the Crown case. There was evidence from the accused's girlfriend, with whom he was then living, that the photograph was shown to her and that the accused owned underpants like those in the photograph but, following a request from the police, she was unable to find these underpants.

1. It was implicit in the Crown case that the rapist was someone who knew the complainant, knew where she lived and probably that her husband was then away from the home. The complainant's evidence was that she did not know the accused. A police officer gave evidence that about six months prior to the commission of the crime, during the course of a social conversation about the merits and demerits of ladies generally, the accused said "that schoolteacher Cindy, I wouldn't mind fixing her up". No objection was made to the admissibility of that evidence by then counsel for the applicant.

1. On this application it was submitted that the evidence was inadmissible because it was irrelevant or alternatively, that it should have been excluded on the basis that its prejudicial value outweighed its probative value. Clearly the evidence was relevant and, subject to discretionary exclusion, admissible, as it tended to prove that the accused knew of the existence of the complainant and, by inference, that he found her sexually attractive. There was a risk that the evidence might be given far more weight than it deserved, but that risk was decisively eliminated by a very clear and elaborate direction given to the jury by the learned trial judge with respect to the limited use to which that evidence could be put. In addition to observing to the jury that they might think it common experience that sentiments such as those were expressed by young men without any evil intent, he gave a clear warning that they must not infer from such statements that it showed an intention to commit the crime.

1. On the application counsel for the applicant abandoned support for the proposed ground which alleged error in the admission of forensic evidence concerning semen and blood grouping.

1. I am well satisfied that there is no substance at all in any of the proposed grounds of appeal and consequently this application should be dismissed.