R v Curtis

[2001] QCA 369

[2001] QCA 369

COURT OF APPEAL

McPHERSON JA
THOMAS JA
WHITE J

CA No 182 of 2001
SC No 254 of 1997

THE QUEEN

v.

CURTIS, Alexander  Applicant

BRISBANE

DATE 07/09/2001

JUDGMENT

WHITE J:  The applicant, Alexander Curtis, seeks an extension of time in which to appeal against conviction and for leave to appeal against sentence.

He was convicted on 21 February 1998 after a trial of one count of unlawfully supplying cannabis to a minor, one count of possession of cannabis, one count of indecent assault and one count of indecent assault with a circumstance of aggravation.

He was sentenced on 25 February 1998 to terms of imprisonment of two and a half years, nine months, 12 months and 18 months respectively with a recommendation for release on parole after serving nine months.

The applicant has previously sought an extension of time to appeal both conviction and sentence which was heard by this Court constituted by Justices Pincus, Ambrose and Lee on 26 May 1998.  The application for an extension of time to appeal against conviction was refused but the applicant for an extension of time to appeal against sentence was allowed.

The sentence application was then further adjourned for further medical reports to be obtained.  The sentence appeal was further adjourned for a further report on 26 August 1998.  On 9 December 1998 the applicant filed a notice of abandonment in this Court.

On its face it refers only to the conviction for the supply of drugs which was count one on the indictment and indicated that the applicant did not intend further to prosecute his appeal and that he abandoned all further proceedings in regard thereto as from that date.

If it was not intended to encompass the other sentences nothing has been done since to advance that application and might be said to have been abandoned de facto.  The applicant was released from custody at his earliest discharge date after remissions on 5 November 1999.

The grounds for setting aside the conviction seem to be that the verdicts were unsafe and unsatisfactory and that Mr Curtis was victimised by an investigating police officer over some previous relationship between them.  Before us today, the applicant contends that this victimisation continued in prison and continues to the extent of having his dog removed from his custody.

There is no matter being put before the Court either in writing by Mr Curtis or orally going to explain the delay or to suggest that there are new matters which have arisen since the Court last considered his appeal.

The only charge specifically involving police was count three which was the possession of marijuana charge.  Contrary to what the applicant maintains in his letter to the Court of 11 August 2001 which constitutes his written submission he, himself, did give evidence at the trial.

The jury were appropriately directed about the evidence and in particular that the applicant had only to satisfy them on the balance of probabilities that he was unaware of the presence of the bags of marijuana in his house.  The other charges were reliant for conviction upon the jury's assessment of the complainant and the applicant.

The guilty verdicts demonstrate that the jury was satisfied beyond reasonable doubt of the matters about which the complainant gave evidence.  Subsequent medical assessment does not suggest any mental deficits to excuse the offending conduct.

No basis for entertaining any doubt about the safeness of the conviction has been shown which was not considered by this Court in 1998.  If the applicant has not abandoned his application for leave to appeal with respect to counts 3, 4 and 5 the sentences have now been served and it would serve no purpose to consider any application.  In any event, involved as count 1 did a degree of planning and cunning to enable the applicant to commit the further indecent assault offences the sentences imposed were not manifestly excessive.

I would refuse the application for the extension of time to appeal against conviction and to the extent that it might be said still to be on foot I would refuse the application for leave to appeal against sentence.

McPHERSON JA:  I agree.  A previous application for an extension of time within which to appeal against the conviction was refused by this Court.  No additional material has been offered to justify making a new application or departing from the decision of this Court on the last occasion.

So, far as sentence is concerned the head sentence imposed on conviction has now expired and the applicant has no material interest in pursuing another application for an extension of time to appeal against sentence after he has already abandoned the first.  I would therefore refuse both applications.

THOMAS JA:  I agree.

McPHERSON JA:  The order of the Court is that the applications for extension of time to appeal against conviction or for leave to appeal against sentence are refused.

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