R v Freeman

[1998] QCA 462

COURT OF APPEAL

[1998] QCA 462

McMURDO P PINCUS JA CHESTERMAN J

CA No 272 of 1998
THE QUEEN
v.

TODD MATTHEW FREEMAN	Applicant
BRISBANE ..DATE 02/12/98
JUDGMENT
021298 T13/AT4 M/T CMS311/98

PINCUS JA: This is an application for leave to appeal against entering a child care centre with intent to commit an indictable offence and, secondly, wilfully and unlawfully setting fire to the child care centre. The offences with which Gordon was charged were, in the circumstances which are set out in the record, quite serious. The trial Judge was informed and the applicant confirmed that he would neither take the oath nor give evidence and when formally called at the trial he adhered to that stance. There was no suggestion that in refusing to take the oath, as he did when called, he did so other than in pursuit of his previously announced intention not to give evidence. The applicant had, himself, been sentenced for his participation in the offence at the child care centre and he was called because he had implicated Gordon. The purpose of his being called was to obtain a conviction against Gordon. When questioned by the Judge as to his reasons for refusal to give evidence, the applicant gave two answers that seem to me to be inconsistent. He said that he did not wish to participate in the conviction of an innocent person and then subsequently said, "Because I don't work for police or prosecution, I'm not a maggot."

sentence. The applicant was convicted on 2 September 1998 of
contempt at the District Court. The respect in which he was
held in contempt was that he refused to take the oath and
refused to testify at a trial. That was the trial of one

There was some discussion in the course of the argument of the application today about the inconsistency of those answers. The applicant has, in effect, assured us that the second

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answer was untrue and it was the first answer which was correct, that is, he has invited us to consider the matter on the basis that he did not wish to give evidence because he did not wish to become involved in the conviction of an innocent person. It appears from the material that in the absence of evidence given by this applicant against Gordon, the Crown case could go nowhere and, in fact, it was not proceeded with after the applicant refused to give evidence.

The applicant has advanced in support of his application for leave to appeal against sentence an argument that the sentence, which was one of nine months imprisonment cumulative upon previous sentences, was excessive because of his youth. The applicant is 22 years of age. He has, however, an imposing criminal history, going back some years. He does not appear to be a person who has a great deal of respect for the law and the learned primary judge was, in my opinion, entitled to take that into account against him.

In addition to imposing a cumulative sentence of nine months, the judge altered the parole date, his previous parole date having been 31 January 2000. That was altered to 31 October 2000; that is, the date of eligibility for parole was delayed by nine months. No particular complaint is or in my opinion could be made in relation to that.

The argument advanced for the respondent has of course emphasised the undesirability of allowing this sort of attitude to be taken. It is said that it strikes at the foundation of the criminal justice system. It seems to me

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that the principal reason for imposing a substantial sentence, as was done in the present case, is to discourage other persons similarly minded; that is, if it becomes known that a refusal to co-operate in prosecution to the extent of giving truthful evidence against co-offenders can be dangerous, this may encourage people to decline to take refuge in either of the suggestions which the applicant made, that is that he was unwilling to participate in the prosecution of an innocent person, or that he was not, as he put it, a "maggot".

The element of deterrence looms fairly large in a case of this sort. There was a plain case of refusal to give evidence at a trial where the evidence was critical and the trial was in relation to a serious matter. Nine months imprisonment for that does not seem to me to be an excessive punishment. I would therefore refuse the application.

THE PRESIDENT: I agree.

CHESTERMAN J: I agree.

THE PRESIDENT: The application for leave to appeal against sentence is refused.

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