R v CAD

[2006] QCA 402

SUPREME COURT OF QUEENSLAND

CITATION:

R v CAD [2006] QCA 402

PARTIES:

R
v
CAD
(applicant)

FILE NO/S:

CA No 163 of 2006
DC No 692 of 2005
DC No 701 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Southport

DELIVERED EX TEMPORE ON:

17 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2006

JUDGES:

McMurdo P, Mackenzie and Fryberg JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application to adduce further evidence refused
2. Application for extension of time to apply for leave to
    appeal against sentence and to appeal against
    conviction refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant seeks an extension of time in order to appeal against his convictions and apply for leave to appeal against his sentence – where applicant has not produced evidence explaining his delay in lodging such an appeal or application – where applicant also seeks to adduce further evidence establishing his innocence – whether applicant can demonstrate a justifiable reason for his delay – whether applicant would have any real prospects of success in his appeal against conviction or sentence were time extended – whether the interests of justice require the granting of an extension of time

Gallagher v The Queen (1986) 160 CLR 392, applied
Meissner v The Queen (1995) 184 CLR 132, applied
Mickelberg v The Queen (1989) 167 CLR 259, applied

COUNSEL:

Applicant appeared on his own behalf
S G Bain for respondent

SOLICITORS:

Applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for respondent

THE PRESIDENT: On 4 April 2006 the applicant was found guilty after a jury trial of one count of maintaining a sexual relationship with a circumstance of aggravation, two counts of attempted rape and three counts of indecently dealing with a child under the age of 16 with a circumstance of aggravation that she was his lineal descendant.  The complainant in these counts was the applicant's granddaughter aged between 10 and 13 at the time of the offences which occurred between 1994 and 1996. 

On 5 April 2006 he pleaded guilty to an indictment containing 11 further counts, one of maintaining a sexual relationship with a child with a circumstance of aggravation, one of sodomy and nine of indecent treatment of a child under 16 who is a lineal descendant.  The complainant on these counts was the applicant's grandson who was aged between 11 and 15 when the offences occurred between 1992 and 1996. 

The judge sentenced the applicant to seven and a half years imprisonment on each count of maintaining a sexual relationship with a circumstance of aggravation, intending that that sentence reflect the applicant's global criminality, and imposed lesser concurrent terms of imprisonment on all the remaining counts.

The applicant, who is not now legally represented, filed this application on 15 June 2006 about six weeks out of time.  He seeks an extension of time to appeal against all his convictions and his sentence.  He also contends that he has recently received fresh information which establishes his innocence and that he was "set up". 

In his handwritten outline of argument he contends that his lawyers did not prepare his trial as well as they should have and that the jury could not have honestly reached their verdict of guilty on the evidence against him.  He states that he pleaded guilty to the counts involving his grandson because he was in shock at the jury's guilty verdicts on the counts involving his granddaughter.  He states he was "conned" by his barrister who told him that if he pleaded guilty the sentence would be lighter.  He contends that the complainants lied to "get some easy money".  He submits that he is a man of integrity who would never have committed offences like this and his wife and two sons are missing him.  He contends that the new evidence he seeks to adduce supports that contention. He repeats that submission in his oral submissions to us, claiming that he is a good citizen who is not a risk to society.  He asks the Court to place him on a conditional release.

The onus is on the applicant to establish some good reason for this Court to grant his application for an extension of time.  He has not produced any evidence to explain his delay in lodging his appeal against conviction or application for leave to appeal against sentence.  This Court would not grant the extension of time unless the interests of justice required it.

A determination of that issue involves some consideration of the merits of the applicant's proposed appeals.  Although a record book has not been prepared, this Court has been supplied with the judge's summing-up and sentencing remarks and with the transcript of both the trial and sentence.  The prosecution case at trial turned on the female complainant's evidence.  The appellant gave evidence denying the offences. 

In the course of the summing-up the experienced trial judge told the jury on many occasions that the assessment of the complainant's evidence was at the essence of the case against the applicant and that there was no obligation or onus on him to suggest any reason why she might fabricate her evidence.  It was for the jury to decide whether they were satisfied beyond reasonable doubt that she was truthful and reliable and only then could they convict.  The judge warned the jury that if they had a reasonable doubt concerning the complainant's truthfulness or reliability in relation to one or more counts they must take that into account in assessing her truthfulness or reliability generally.  The judge explained the elements of each of the offences charged and related that to the evidence of the complainant in each count.  The judge warned the jury that the complainant's evidence of uncharged acts was only relevant as showing the true nature of the relationship between the applicant and the complainant and, if accepted by the jury, could not be used by them to conclude that the applicant was someone who had a tendency to commit sexual offences and was therefore more likely to have committed the charged offences.  The judge told the jury that the complainant's long delay in reporting the incidents, which she said occurred between  1 January 1994 and 31 December 1996, to the police in January 2005 is that her evidence cannot be adequately tested or met after the passage of so many years.  The applicant may have lost, by reason of that delay, means of meeting and testing her allegations that would otherwise have been available to him if the complaints had been made shortly after the alleged events.  The judge pointed out, however, that the applicant's evidence was that the incidents described by the complainant occurred.  He said he was with her and had the opportunity to commit the offences as she described but that he did not commit the offences.  The judge told the jury it was dangerous to convict on the complainant's testimony alone unless, after scrutinising it with great care, considering the circumstances relevant to its evaluation, paying heed to the warning about delay, the jury was satisfied beyond reasonable doubt as to its truth and accuracy.

The applicant's evidence in respect of the circumstances surrounding one series of offences was that, because he had had a disagreement with his partner on the evening that the complainant was sleeping over at his house, he slept on a pullout bed in the loungeroom.  He woke during the night to find the complainant asleep in the same bed; after going to the toilet he returned to the same bed where he slept next to the complainant until the next morning; nothing improper occurred.  This differed from the complainant's version of those events, which was that the applicant came into the lounge-bed on which she was already sleeping and committed the offences.  This difference between the two versions was not put to the complainant in cross-examination by the applicant's barrister.  It was conceded that the applicant had not given those instructions to his barrister.  The judge told the jury that the failure of the applicant through his barrister to ask the complainant questions about the applicant's different account deprived her of the opportunity to comment on it. 
This may impact on their assessment of the applicant's credibility, but the jury should consider other possible explanations for his failure to communicate those instructions to his lawyers.  There may, for example, have been difficulty in communication or the applicant may simply have forgotten to tell his lawyers about it because he did not realise its significance.  Only if the jury found that there were no reasonable possibility other than that it did not happen as the applicant said, could they use that failure adversely in assessing the applicant's credibility.  His Honour then again directed the jury that only if they were satisfied beyond reasonable doubt that the complainant's evidence was accurate and reliable could they convict him.

The judge fairly placed the defence case before the jury explaining that it was that they would be left in doubt about the complainant's evidence; the applicant had given evidence denying the commission of the offences; the complainant did not make a complaint to police for many years even though she had had ample opportunity to do so to people she trusted, including her mother, her stepfather and her natural father.
The defence submitted that the applicant's evidence included many concessions by him which suggested his honesty rather than dishonesty.  Defence counsel pointed out inconsistencies in the complainant's evidence in respect to an uncharged event in Sydney when the applicant was said to have been babysitting the complainant and other children; defence counsel asked if the offences occurred, where were the other children?  Defence counsel submitted that these inconsistencies threw doubt on her evidence generally and the jury would have at least been left in doubt about her evidence. 

The judge also explained the prosecution case which was that although the applicant had been shown to have lied in the witness box, that did not mean the prosecution had won its case.  The jury would, however, be satisfied beyond reasonable doubt that the complainant's evidence was both honest and reliable and would convict him.  Because of her young age at the time the offences were committed it was not surprising that she had not made the complaint to police about her grandfather's conduct for many years.  She did, however, make a timely complaint to her school friend but told her friend not to tell anyone.  This was all consistent with her credibility.  The prosecutor submitted that any inconsistencies in the complainant's evidence were of a minor kind and did not affect her credibility.  He queried how the applicant in his evidence could have remembered so many details about the incidents described by the complainant if no sexual impropriety occurred on those occasions.  The prosecutor emphasised the applicant's evidence which emerged for the first time when he gave evidence in court and which was not put to the complainant and contended that this showed the applicant's evidence was not reliable.  The prosecution submitted the jury would accept the complainant's evidence of each of the charges beyond reasonable doubt.

The experienced defence counsel at trial did not ask the trial judge for any redirections.  The applicant does not now point to any errors in the judge's summing-up.  The jury retired to consider their verdict at 12.26 p.m. on 4 April and returned later that day with their guilty verdicts at 3.21 p.m.

The applicant's counsel requested an adjournment so that he could obtain instructions in respect of the 11 count indictment concerning the grandson.  The sentence of the offences involving the granddaughter was adjourned until 9.30 a.m. the next day.  The applicant then pleaded guilty to the counts concerning his grandson.

The applicant has not demonstrated that he has good grounds to show that the jury verdicts of guilty were unreasonable or cannot be supported having regard to the evidence, or that the judge erred in his directions to the jury, or that there has been a miscarriage of justice in respect of those jury verdicts. 

The only further evidence he has sought to place before this Court are references and testimonials as to his good character and a letter which suggests that no complaints were made to the authorities about him prior to the present complaints.
This Court should not now receive that evidence.  As to conviction, I am not persuaded that had that evidence been available at trial there is a significant possibility or it is likely that a reasonable jury would have acquitted the applicant:  Gallagher v The Queen (1986) 160 CLR 392, 397, 399 and 407; Mickelberg v The Queen (1989) 167 CLR 259, 273, 275, 292 and 301-313. Nor is the further evidence of any considerable weight in mitigating sentence in the light of the seriousness of the applicant's conduct. The application to adduce further evidence and to extend time to appeal against the convictions resulting from the jury verdicts of 4 April 2006 should be refused.

On the remaining 11 count indictment the applicant pleaded guilty in open court.  He was represented by a barrister experienced in criminal law.  The transcript records that the applicant pleaded guilty without any protest on his part then or at any time during the sentencing proceeding.  His submissions suggest that he pleaded guilty only after receiving and accepting advice from his legal representatives.  That advice, in essence that the sentence would be lighter if a plea of guilty was entered, was plainly correct.  Indeed, the learned sentencing judge expressly stated that he had significantly moderated the sentence he would have imposed in respect of those offences because of the plea of guilty.

The applicant has not demonstrated that his plea of guilty on arraignment in open court was anything other than an informed and free plea of guilty.  As Brennan, Toohey and McHugh JJ explained in Meissner v. The Queen (1995) 184 CLR 132 at 143,
argument or advice that merely seeks to persuade an accused person to plead guilty is not improper conduct nor interference with the administration of justice no matter how strongly the argument or advice is put, as long as it does not constitute harassment or other improper pressure and leaves the accused person free to make the choice as to the plea.  I am not persuaded the pleas of guilty were not free and informed. 

Nor has the applicant demonstrated that the effective sentence imposed of seven and a half years imprisonment for all of his offending behaviour was so plainly manifestly excessive that the extension of time in which to apply for leave to appeal against sentence should be granted.  He was 64 years old and had no relevant prior convictions.  He had apparently rebuilt his life since committing these offences some years ago.  The offences involved, however, serious sexual abuse of two young complainants to whom he was, as their grandfather, in a position of trust.  In respect of the counts on which the applicant went to trial he showed no remorse.  The judge noted that the applicant's counsel had stated that the applicant was an alcoholic at the time of the offences, now reformed, and had little memory of them but the judge rightly observed that the conduct was persistent and serious.  The maximum penalty in respect of each of the offences of maintaining a sexual relationship with a circumstance of aggravation was life imprisonment.  The applicant's counsel at sentence suggested that the judge impose a sentence of about seven years imprisonment.  In all these circumstances, the sentence imposed, effectively seven and a half years imprisonment for very serious criminal conduct, appears to have been within the appropriate range.

Because the applicant has not demonstrated any justifiable reason for the delay and, in any case, has not demonstrated that he has any real prospects of success, were time extended, in any appeal against conviction or application for leave to appeal against sentence, his application for an extension of time to appeal should be refused. 

MACKENZIE J:  I agree with the orders proposed by the President for the reasons she has given.

FRYBERG J:  I agree with the President also.  In particular, I agree that the additional evidence (which the applicant has not deposed to) is all of a character which could have been led at trial.  The applicant has not put any evidence before the Court as to the reason for the delay in filing a notice of appeal, nor has he sought to do so.  Neither has he led nor sought to lead any evidence of the circumstances which led him to plead guilty to a number of offences.

Whatever might be the position in a case where plainly an applicant was innocent - a situation where one would, in any event, expect a concession from the Crown - the absence of such evidence, in my judgment, dooms the application to failure.

THE PRESIDENT:  The orders are:  the application to adduce further evidence is refused and the application for an extension of time to appeal against conviction and to apply for leave to appeal against sentence is refused.

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