R v. G

[1993] QCA 313

IN THE COURT OF APPEAL  [1993] QCA 313

SUPREME COURT OF QUEENSLAND

C.A. No. 119 of 1993

Brisbane

[R v. G]

THE QUEEN

v.

G

(Applicant)

_______________________________________________________________

Pincus J.A.

Ambrose J.

White J.

_______________________________________________________________

Judgment delivered 27 August 1993

Judgment of the Court.

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APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL AGAINST CONVICTION AND APPLY FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

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CATCHWORDS:                CRIMINAL LAW - APPEAL - extension of time to appeal - unlawful and indecent dealing and assault - whether verdict unsafe and unsatisfactory - use of child's diaries to allocate date to offences even though offences not described therein.

Counsel:Mr S Herbert QC, for the applicant.

Mr D Meredith for the respondent.

Solicitors:Eastwick & White for the applicant.

Director of Prosecutions for the respondent.

Date of Hearing:  20/08/93.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 119 of 1993.

Brisbane

BeforePincus J.A.

Ambrose J.
White J.

[R v. G]

THE QUEEN

v.

G

(Applicant)

JUDGMENT OF THE COURT

Judgment delivered 27/08/93.

This is an application for an extension of time within which to appeal against conviction and apply for leave to appeal against sentence.  The applicant was convicted on 9 February 1993 on 2 counts of unlawful and indecent dealing and 3 counts of unlawful and indecent assault and sentenced to 3 years and 6 months imprisonment.  It appears that the applicant instructed solicitors to appeal, but they declined to act.  He spoke to new solicitors, about 6 March 1993; they promptly had a notice of appeal settled by counsel and instructed their town agents to file it.  It was faxed to the prison in which the applicant is confined on 9 March 1993, but due to some administrative delay it was not presented to the applicant for signature until a day too late.  In those circumstances an extension should plainly be granted, if either the proposed appeal or application for leave to appeal has any substance.  It is not suggested that the latter requires any consideration.

As to the conviction, the evidence was that the applicant is the step-father of the complainant who was born on 22 March 1973.  The Crown case was that the complainant lived with the applicant, her mother, and other children until the complainant was aged 17 years and that for about the last 7 years of that period the applicant sexually abused the complainant.  The Crown case in respect of the first count needs little analysis.  The complainant could not remember the details of the incident in question, but they were sworn to by the applicant's wife.  It was common ground that the matter was the subject of subsequent discussion and one aspect of it - that the applicant was found naked in the child's bedroom - was in substance admitted.  When discussing the matter with the police, the applicant said that he was drunk at the time and did not know whether he had touched the complainant or not.  Although it was formally submitted that this conviction, like the others, was unsafe, it seems clear that it was not.  The other 4 counts were of various sorts of sexual interference with the complainant, whose sister afforded some corroboration.  Apart from that, support to the Crown case in a general sense was provided by the applicant's admission that he received some treatment after the incident, the subject of count 1.  Although he believed he had done nothing, the applicant said that he told "them" - meaning presumably the people who undertook to treat him - that his wife had said that she had caught him in bed with the complainant.

The substantial argument advanced was that the conviction was unsafe because of the content of diaries which were kept by the complainant.  These were used by her to fix dates on which, she alleged, the offences were committed by the applicant.  However, the diaries made no reference to those offences; they were, according to her evidence, able to help her by their reference to other events which she related to the occasions on which the offences were committed.

The applicant's argument was, in effect, that it was odd that the diaries which contained numerous references to personal matters, did not discuss or indeed mention the applicant's conduct which brought about the convictions.  Further, the complainant was argued to have been rather inconsistent in explaining the absence from the diaries of any reference to the events constituting the offences.  At one stage the complainant explained that by saying that the applicant read the diaries, but she later agreed that she did not intend the applicant to read certain of the details she had recorded.

There is, on the face of it, nothing remarkable about the omission from the diaries of the events which brought about the convictions.  The complainant claimed that she did not want to think about those matters and that seems entirely believable.  The only substantial point of criticism open, as to the diaries, is that there is at least an arguable inconsistency in the applicant's evidence, with respect to the question of whether she expected the applicant to read them.  That was a matter for the jury's consideration and by no means sufficient to vitiate the verdicts, reached on a Crown case of some strength.  As has been mentioned, the complainant's story of sexual abuse received support in certain aspects from the evidence of three other witnesses, one of whom was the applicant.

In short, the essential point argued, that the evidence about the diaries was destructive of the Crown case and made the convictions unsafe, can plainly not be made out.  The application must be dismissed.