R v. G

[1999] QCA 504

[1999] QCA 504

COURT OF APPEAL

PINCUS JA
THOMAS JA
CHESTERMAN J

CA No 324 of 1999

THE QUEEN

v.

GApplicant

BRISBANE

DATE 02/12/99

JUDGMENT

PINCUS JA:  This is an application for extension of time within which to appeal against conviction.  The applicant, Mr G, was convicted of four counts of rape in the District Court on 2 June 1999 and sentenced on the following day.  When the matter was called on today, Mr Meredith, who appeared for the Crown, appeared to have the impression that a sentence application is before us and that is not so.  The sentence application will have to be heard at some later date.

On 20 September 1999 the applicant signed a notice of an application for extension of time within which to appeal.  The application for leave to appeal against sentence was made within time, but the application for an extension of time to appeal against conviction was not made for months after that.  The explanation given for this delay is that the applicant was given legal advice to appeal against sentence only at first and then "it would be a simple matter to upgrade the appeal to one against the verdict".

In discussing the matter today, Mr G gave a similar explanation, but added the refinement that he was supposedly told by the lawyer that it is usual to appeal against the sentence first and one could amend it later.  Mr Meredith for the Crown says this all seems pretty unlikely.

The complainant in the case was the applicant's stepdaughter.  It was common ground that the applicant had sexual intercourse with her; the dispute at the trial being whether or not that was consensual.  The applicant wishes to put forward 38 complaints concerning the way in which the trial was conducted.  Of those, all but three relate to mistakes made by his counsel in the conduct of the trial and by the Judge in directions to the jury.

As to the latter, having read the Judge's directions, I am left with the impression that it is quite unlikely that any of the attacks upon them which are proposed to be made, would lead to a setting aside of the conviction.  The complaints about the directions generally have to do with the absence from those directions of factual points which, it is said, might have been argued in favour of an acquittal.

In the Judge's summing-up, he did not deal with the facts in any great detail nor did he, as it seems to me, imply that there should be convictions or imply the contrary.  I note that the applicant wrote an abject letter of apology to the complainant and her husband, who were married in 1995.  The letter appears to have been written in 1996.  The Judge correctly told the jury that that was capable of being corroborative.  I mention this both because it is relevant to the question of whether the appeal has any substantial merit and because the very first complaint about the directions is based on the view that there was no corroboration.

As to complaints about defence counsel's conduct, as is usual, it is impossible to tell without considerable investigation (including referring the complaint to the counsel concerned) whether any such complaint is truly justified.  But it must be said that the list, and it is an imposing one, set out in the applicant's submission gives the impression that every possible criticism of defence counsel which imagination could devise has been advanced.

One example is that the defence counsel did not cross-examine a witness about a rumour that the complainant's mother had established a sexual relationship with a certain sergeant of police.  Another is that there is a complaint that defence counsel did not call a certain person as a witness and "put to her the suggestion that she had coached the complainant in the formulation of the allegations and evidence given".  On the face of it neither of these complaints could possibly be made out and they are examples only, suggestive to my mind of rummaging around for complaints, whether or not they have any substance, rather than there being any genuine point in the case.

Although the applicant is well out of time to appeal against conviction, one might be inclined to grant the application for an extension if a plausible reason for the delay existed and the challenge to the convictions, on the face of it, seemed to have some substance.  In this case neither condition, in my view, exists.  The reason given for the delay is, in the highest degree, unconvincing, particularly when, as now appears, the applicant was convicted of another offence, also of a sexual nature, in 1998 and filed an appeal against that conviction very promptly.  The grounds given for challenging the conviction, although numerous, do not on the face of them, seem promising.  I would refuse the application for an extension.

THOMAS JA:  I agree.  I would add that the affidavit of Mr Dalton shows that the applicant was given quite proper advice in relation to his rights of appealing against conviction.  I do not accept that eccentric advice such as that which the applicant claims to have been given was given.  The material further shows that he had personally prepared grounds of conviction stating them in a general way on the previous occasion when he was convicted on indictment.  In all the circumstances, I do not consider that the delay has been satisfactorily explained.  It is a substantial delay being 78 days out of time.

Furthermore, I do not think that there is any plausible or promising ground of appeal sufficient to justify the grant that is sought.  I agree with what Mr Justice Pincus has said and with the order that he proposes.

CHESTERMAN J:  I agree that the application should be refused for the reasons given by Mr Justice Pincus.

PINCUS JA:  The order of the Court is application for an extension refused.