Howell v The Queen
[1999] TASSC 96
•25 August 1999
[1999] TASSC 96
CITATION: Howell v R [1999] TASSC 96
PARTIES: HOWELL, Brian Leslie
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL
JURISDICTION: APPELLATE
FILE NO/S: CCA 19/1999
DELIVERED ON: 25 August 1999
DELIVERED AT: Hobart
HEARING DATES: 25 August 1999
JUDGMENT OF: Underwood, Wright and Evans JJ
CATCHWORDS:
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Practice after criminal appeal legislation - Miscellaneous matters - Tasmania - Summary determination where no substantial ground of appeal.
R v Majewski [1977] AC 443; R v Morris No 2 [1914] St R Qd 274; R v Taylor [1979] Crim LR 649, referred to.
Criminal Code 1924 (Tas), s416(2).
Aust Dig Criminal Law [1059]
REPRESENTATION:
Counsel:
Appellant: In Person
Respondent: Nil
Solicitors:
Appellant: In Person
Respondent: Nil
Judgment Number: [1999] TASSC 96
Number of Paragraphs: 11
Serial No 96/1999
File No CCA 19/1999
HOWELL v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
WRIGHT J
EVANS J
25 August 1999
Order of the Court
Appeal dismissed.
Serial No 96/1999
File No CCA 19/1999
HOWELL v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
WRIGHT J
EVANS J
25 August 1999
The appellant was arraigned on an indictment containing two counts of indecent assault, five counts of rape and one count of attempted rape. He pleaded guilty to one count of indecent assault and the trial proceeded with respect to all other counts. The jury found the appellant guilty of one count of rape (count 8) but acquitted him of the remainder. The appellant has lodged two notices of appeal, but he abandoned the notice dated 23 February 1999.
The other notice of appeal prepared by the applicant and dated 21 July 1999, relevantly reads:
"I thought it was up to the prosecution to prove penetration not up to the jury to determine if there was penetration. The Chief Justice said:
'The complainant herself simply says "he penetrated me his penis entered my vagina", words to that effect.'
He should have also said that I 'Mr Howell', said he never penetrated her."
This notice of appeal was referred to the Court by virtue of the provisions of the Criminal Code, s416(2) which states:
"(2) If it appears to the Registrar that any notice of appeal against a conviction does not show any substantial ground of appeal, he may refer the appeal to the Court for summary determination; and the Court may thereupon, if it considers that the appeal is frivolous or vexatious, dismiss the appeal summarily without calling upon any person to attend the hearing."
The Code, s416(2) has a counterpart in the Queensland Code, s471H(2). The predecessor of the Queensland subsection was considered by the Queensland Court of Criminal Appeal in R v Morris No 2 [1914] St R Qd 274 at 285. In that case, notwithstanding the statutory power to proceed in the absence of the appellant, leave was given for the prisoner to be heard on the application. The same course was followed on this application. In Morris, the Court said:
"The only point raised has been settled by authority, and was the subject of a recent Crown case reserved which was recently heard in this Court. The appeal will be dismissed as frivolous."
The Criminal Appeal Act 1968 (UK), s20, is enacted in terms similar to the Code, s416(2). It too, provides for summary dismissal if an appeal is "frivolous or vexatious". The forerunner to the section as presently enacted in the United Kingdom, confined this jurisdiction to appeals which involved a question of law alone and in that form, the subsection was considered in the well-known case of R v Majewski [1977] AC 443. Lawton LJ said at 451:
"The phrase 'does not show any substantial ground of appeal' must be read with the phrase 'frivolous or vexatious' which limits the exercise of the judicial powers given by the section. A point of law which is not likely to succeed does not by that prospect alone come within s 20. There must be an element of absurdity about the point."
The United Kingdom section (as presently enacted) was considered in R v Taylor [1979] Crim LR 649. The report states:
"Held, the point of law was a very narrow one, as to whether section 9 (1) (a) and section 9 (1) (b) were mutually exclusive and it was clear that the point was not arguable. Even if it were argued it would have no prospect of success. Such a situation came within the terms of section 20; the word 'frivolous' in the section could not be intended to mean only foolish or silly, but must mean that the ground of appeal was one that could not possibly succeed on argument. The appeal would therefore be dismissed without argument."
This application falls to be determined in accordance with those principles. For my part, I am satisfied that the appeal should be summarily dismissed, for it could not possibly succeed even with full argument to support it. The first sentence of the notice of appeal makes no sense. The learned trial judge correctly directed the jury with respect to its duty and the onus and standard of proof. The issue of penetration was one for the jury to resolve on an issue of credit between the appellant and the complainant. The learned trial judge correctly summarised the relevant evidence and appropriately warned the jury of the dangers of accepting the complainant's evidence after such a long period of time.
In his submissions this morning, the appellant, in substance, argued that the jury should not have accepted the complainant's account, or should have, at least, been in a reasonable doubt about it. That, of course, is not relevant to the notice of appeal but, in any event, the submissions do not, in my view, indicate that there was any error at the trial. I would dismiss the application.
Wright J
I agree.
Evans J
I agree.
The order of the Court is that the application is summarily dismissed.
0
0
1