R v ABB

Case [2019] QCA 22

SUPREME COURT OF QUEENSLAND

CITATION:

R v ABB [2019] QCA 22

PARTIES:

R
v
ABB
(applicant)

FILE NO/S:

CA No 194 of 2018
DC No 748 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 23 May 2018 (Farr SC DCJ)

DELIVERED ON:

19 February 2019

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2019

JUDGES:

Sofronoff P and Gotterson and Morrison JJA

ORDER:

The application for an extension of time is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant was convicted on four counts of assault, each of which constituted a domestic offence – where the applicant lodged a notice of appeal against his conviction on 18 July 2018 when the time for lodging an appeal had expired on 25 June 2018 – where the applicant contends that the prosecution led propensity evidence – where the applicant relied upon Pfennig v The Queen (1995) 182 CLR 461; Perry v The Queen (1982) 150 CLR 580 and HML v The Queen (2008) 235 CLR 344 – where the applicant contends that there has been a miscarriage of justice – whether the grounds of the applicant’s proposed appeal has a reasonable prospect of succeeding to warrant the granting of an extension

Craig v The Queen (2018) 92 ALJR 390; (2018) 353 ALR 177; [2018] HCA 13, cited
HML v The Queen (2008) 235 CLR 344; [2008] HCA 16, mentioned
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Nudd v The Queen (2006) 80 ALJR 614; (2006) 225 ALR 161; [2006] HCA 9, cited
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, mentioned
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
R v Genrich[2001] QCA 466, mentioned
Perry v The Queen (1982) 150 CLR 580; [1982] HCA 75, mentioned
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, mentioned
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited

COUNSEL:

The applicant appeared on his own behalf
C N Marco 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 Morrison JA.

  2. GOTTERSON JA:  I agree with the order proposed by Morrison JA and with the reasons given by his Honour.

  3. MORRISON JA:  On 23 May 2018 the applicant was convicted, after a trial, on four counts of assault, each of which constituted a domestic offence.  All four counts occurred on the one day and were committed against the applicant’s wife.

  4. Count 1 (common assault) involved grabbing the complainant’s hair and pulling her to the ground.  Count 2 (common…

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Details
AGLC
R v ABB [2019] QCA 22
Case
[2019] QCA 22
Decision Date

CaseChat Overview and Summary

The applicant, convicted on four counts of assault, sought an extension of time to appeal against his conviction. The applicant lodged his notice of appeal on 18 July 2018, well after the statutory deadline of 25 June 2018. The applicant contended that the prosecution led propensity evidence that had a prejudicial effect exceeding its probative value. He relied on several High Court authorities to support his argument that the evidence led to an unfair trial and a miscarriage of justice. The applicant also argued that there were other grounds for appeal, including the alleged unsafeness and unsatisfactory nature of the verdicts.

The primary issue before the court was whether the applicant's proposed grounds for appeal had a reasonable prospect of succeeding, warranting the granting of an extension of time. The applicant argued that the propensity evidence led by the prosecution prejudiced the trial, and the trial judge's direction to the jury did not mitigate the prejudicial effect. The court had to assess the merits of the applicant's proposed appeal and determine if an extension of time should be granted.

In its decision, the court reviewed the evidence and found that it was open to the jury to be satisfied of the applicant's guilt of the alleged offences. The court was unpersuaded that an innocent person had been convicted. The court noted that the applicant's trial counsel did not object to the evidence or request a direction, despite knowing about it from a previous trial. Furthermore, the evidence was not led as propensity evidence, but rather to provide context for the relationship between the applicant and the complainant. The court found that the applicant's proposed grounds for appeal lacked merit, and the appeal had no reasonable prospect of succeeding.

The court refused the applicant's application for an extension of time to appeal. The application for an extension of time is refused.

Orders

Orders of the court

The application for an extension of time is refused.

Background

Background to the litigation

Whilst the explanation for the delay after contacting the registry is not satisfactory, nonetheless it appears that the applicant was intent upon appealing if he had grounds to do so, and made efforts to do so, even though those efforts were misguided. The overall length of the delay is not great, being 25 June to 19 July. If matters were confined to those considerations I would be inclined to grant the necessary extension of time. However, the merits of the proposed appeal are another matter.Background The applicant and the complainant were married on 17 November 2013. The complainant had a daughter from a previous relationship, but together they had a son born in 2014. The marriage was, even on the applicant’s material before this Court, an unhappy one. The complainant’s evidence at the trial was that the applicant was controlling and demanding, and physically abusive towards her. That abuse escalated over time, with a number of incidents being described by the complainant in the passage of time leading to 5 April 2015, when the four offences were committed. The applicant’s own submissions described the marriage as “unhealthy … from the start”, and being accompanied by a lot of arguments concerning family ties, particularly with the applicant’s brother and sister-in-law. The applicant had an affair with his sister-in-law prior to marrying the complainant, and told her before they married, but that relationship was obviously the source of continuing agitation between them. Evidence was given at the trial of a number of instances of physical abuse in the two or three years prior to the offences. They included:1.December 2013: pushing the complainant’s head against a car window several times;2.May 2014: dragging the complainant by her hair and pushing her head towards the wall;3.November 2014: chastising the complainant because of her dress, and then punching her in the back of the head several times;4.December 2014: slapping the complainant a few times;5.February 2015: threatening to kill the complainant and her family, wrestling with her in an attempt to get her phone, and then pulling the complainant’s hair to the point where she nearly fell over; later pushing and slapping the complainant and threatening her with a knife; and6.March 2015: pushing her head against the car window while they were travelling in the car. On the day of the offences, 5 April 2015, the applicant and complainant argued over when her daughter would be dropped off at her mother’s place. The applicant pulled the complainant by her hair and pushed her onto the floor.[6] He sat on top of her and chastised her for screaming. He then put both of his hands on her neck and choked her.[7] He threatened to kill her and then punched her twice in her face, causing her to taste blood in her mouth.[8] He then put his hands around her neck again and choked her.[9][6]Count 1.[7]Count 2.[8]Count 3.[9]Count 4. The complainant asked to be taken to the hospital and though they drove there the applicant stopped her from getting out of the car. He took her to a service station where he bought her a bottle of water. While he was inside at the service station the complainant photographed her injuries. He then took her back to their unit, saying he could treat her. After securing the complainant’s agreement to provide a false account for how she sustained the injuries, the applicant then took her to the hospital. Before they did so he made her change her clothes and put some makeup on to cover the marks on her neck.

Evidence

Evidence Before The Court

The applicant’s first ground of appeal was that the verdicts were unsafe and unsatisfactory. He also raised a number of specific grounds in the course of his submissions before this Court. It is convenient to deal with each of those in turn, and then the overall ground.Abuse of process – propensity evidence The applicant contended that the prosecution led propensity evidence, the prejudicial effect of which exceeded any probative force.[10] In this respect the applicant was referring to the evidence concerning other incidents of domestic violence, summarised in paragraph [25] above. It was contended that the leading of the evidence of those alleged incidents created an unfair trial, and a fundamental defect in the trial process because of its prejudicial effect.[10]In that respect the applicant relied upon Pfennig v The Queen (1995) 182 CLR 461, [1995] HCA 7, Perry v The Queen (1982) 150 CLR 580, [1982] HCA 75, and HML v The Queen (2008) 235 CLR 344, [2008] HCA 16. The first difficulty that contention confronts is that, as the applicant accepted, there was no objection by his trial counsel in respect of that evidence, nor any request for a direction other than was given in respect of it, as set out below. Given that the same evidence had been given at the first aborted trial, defence counsel knew full well that the evidence was to be adduced. The second difficulty is that the evidence was not adduced as propensity evidence at all. It was the subject of a specific aspect of the summing up by the learned trial judge in a passage designed to ensure that the jury did not treat the evidence as propensity evidence:[11]“Now, the defendant is, of course, only charged with the four offences set out in the indictment. And as I’ve said, you must consider each of those charges separately. The prosecution has also placed before you evidence of other conduct that is alleged to have been committed by the defendant, which the prosecution says properly contextualises the charged events. That, of course, is the evidence of other acts of alleged violence that occurred on the dates that were nominated in the course of evidence. And the prosecution says that that’s placed before you so that you can understand the true nature of the relationship that existed between the defendant and the complainant and that that evidence gives you the full and proper context of the relationship, such that it makes it easier to understand the nature of the allegations the subject of the charges.Now, you should, of course have regard to the evidence of the incidents which are not the subject of the indictment only if you find that evidence reliable. If you accept it, you must not use it to conclude that the defendant is someone who has a tendency to commit the type of offence with which he is charged. So it would be quite wrong for you to reason that you’re satisfied he did those acts on other occasions and, therefore, it is likely that he committed one of the charged offences. You must not reason in that way. That evidence has been led only for that limited purpose that I’ve identified to you.Furthermore, you should not reason that the defendant had done things equivalent or similar to the offences charged on other occasions and, on that basis, could be convicted of the offences charged even though the particular offences charged are not proved beyond a reasonable doubt. Remember that the evidence of the incident not the subject of the charges comes before you only for the limited purpose that I’ve identified. If you do not accept the complainant’s evidence relating to the incidents not the subject of the charges, you should, however, take that into account when considering her evidence relating to the alleged events the subject of the charges before you.”[11]Summing up Transcript p 6 line 40 to p 7 line 22.

Decision

Reasons for decision

In my view, on a review of the whole of the evidence, it was open to the jury to be satisfied of the applicant’s guilt of the alleged offences. I am quite unpersuaded that an innocent person has been convicted.Conclusion As all the grounds of the applicant’s proposed appeal lack merit that appeal has no reasonable prospect of succeeding. The applicant’s application for an extension of time within which to appeal should be refused.

Ratio Decidendi

Legal Principle Established

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