R v Finn

[2000] QCA 291

[2000] QCA 291

COURT OF APPEAL

DAVIES JA
THOMAS JA
MULLINS J

[R v Finn]

CA No 138 of 2000

THE QUEEN

v.

JOHN VINCENT FINN  Applicant

BRISBANE

..DATE 24/07/2000

JUDGMENT

DAVIES JA:  The applicant was convicted on 25 November last year on three counts of making wilful false promises.  He was sentenced to two and a half years imprisonment.

He lodged an appeal against his conviction within time but subsequently abandoned it.  He claims he did so because of a letter from the Registrar, which led him to believe that his appeal would fail.  The letter however simply explains the basis upon which an appeal is ordinarily conducted, and was not in any way misleading.

Notwithstanding that, when he filed his application on 19 May this year, he was nearly six months out of time.  He now seeks an extension of time within which to appeal.

At the trial, the evidence against the applicant was compelling and uncontradicted.  Three different people who did not know one another each responded to an advertisement, they said, entered into negotiations with the applicant and believed that he had paid a substantial sum of money for the sole Queensland manufacturing rights for a metal forming machine.

In truth, the applicant on this evidence had sold the same exclusive rights to three different people.  Each of them gave evidence about that, and the applicant gave no evidence.  The case was therefore a very strong one against the applicant, and unsurprisingly he was convicted.

The basis upon which the applicant now wishes to appeal is that during the course of his trial, a spectator in the Court known to the applicant, and the applicant says, to other people as well, made gestures and displayed a sign which the applicant contends, and I quote, "may have had the effect of perverting the course of justice."

In support of that application, the applicant has filed affidavits by himself, his two sons, and a man called Howe, a former business associate.  In order to obtain an extension of time, the applicant must explain his delay and show that he has some arguable ground of appeal.

In my view, he has done neither of these things.  As to the first, it is plain that even if the applicant, a man of proven dishonesty because of his previous criminal record, is to be believed, he was aware of the conduct of this man during the course of his trial.  What he says now is that he was not fully aware of the extent of that conduct.

I find it difficult to believe that if he was aware of the conduct at an early stage of the trial, he didn't continue to be aware of it thereafter.  If he had been aware of it, and if he had thought it could have possibly made any effect on his trial, he would surely have told his legal advisers.
No evidence is forthcoming from his legal advisers and the explanation which the applicant gives for the failure of his solicitor to give evidence here is unconvincing.

The applicant says that his sons informed him later of the extent of this man's conduct.  In my view, as I have said, the applicant was sufficiently aware of it to rely upon it as a basis for appeal, if in truth it existed, if it had any basis.

For that reason alone, in my view no satisfactory explanation has been provided for the delay.  In any event, in my opinion, the conduct as described, even if the accuracy of the description of it by the applicant and his two sons is accepted, would in my view have not necessarily affected the trial against the applicant.

The case against the applicant was an overwhelming one.  The conduct as described does not appear to me to have been unequivocally to his detriment.  Anyone seeing it could easily have been more sympathetically inclined to the applicant because of it.  But the most likely result is had the jury witnessed conduct of this kind, they would have thought it simply bizarre.

Finally, it seems to be incredible that if the person was behaving in the way which the applicant describes and his two sons describe, neither counsel nor any officer of the Court nor the Judge noticed it.  The affidavit of Carolyn McAnally is to the effect that she did not notice it, she did not notice any effect upon the jury and there is no suggestion that anyone else noticed it.

That is not to say that if the conduct as described occurred, it ought not to be viewed very seriously by a Court.  Indeed if that occurred, it would have been appropriate for the Judge to remove the man, the spectator from the Court, or indeed, to even cite him for contempt of Court.  But in my view, that is irrelevant to the facts of this case, because it has not, to my satisfaction, been established that any such conduct ever occurred.

For all of these reasons, in my view the applicant has not established a basis for an extension of time, and I would refuse the application.

THOMAS JA:  I agree.  Whilst conduct such as that attributed to Mr Neal is of potential concern to the Court, the evidence here fails to reveal conduct that might reasonably have influenced the jury to convict.  I agree with the remarks made by Justice Davies and the order he proposes.

MULLINS J:  I agree that the application should be refused for the reasons given by Justice Davies and Justice Thomas.

DAVIES JA:  The application is refused.

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