R v Harrod

[2011] QCA 4

SUPREME COURT OF QUEENSLAND

CITATION:

R v Harrod [2011] QCA 4

PARTIES:

R
v
HARROD, Martin
(applicant)

FILE NO/S:

CA No 243 of 2010
SC No 66 of 1988

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

8 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

1 February 2011

JUDGES:

Margaret McMurdo P and Fraser and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for an extension of time to appeal against conviction is refused;

2. Application for an extension of time to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to murder – where applicant lodged an appeal against conviction out of time – where the delay was excessive – where applicant argued the case was contradictory and proceeded on a misapprehension of the real state of affairs – where applicant argued relevant medical report was not put before the primary judge – where applicant argued prejudicial medical evidence was admitted against applicant when it should have been excluded and thus affected the sentence – where applicant argued there was a discrepancy between the reports of two pathologists – where applicant argued the conviction was unsafe and unsatisfactory – where applicant argued for release on parole due to effort made to rehabilitate – where the applicant challenged the decision of the Parole Board – where no prospects of success on appeal against conviction demonstrated – where no prospects of success on appeal against sentence demonstrated – whether application for extension of time should be granted – whether appellate proceedings can be used to challenge a Parole Board decision – whether sentence manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant argued there was a “clerical error” in the records of his conviction and this ought to be corrected –– whether the appellate court has power to alter the record of proceedings at sentence

Criminal Code 1899 (Qld), s 305(1)

COUNSEL:

The applicant appeared on his own behalf
B J Power for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

[1]      MARGARET McMURDO P:  This application for an extension of time to appeal must be refused for the reasons given by Chesterman JA. 

[2]      FRASER JA:  I agree that the application should be refused for the reasons given by Chesterman JA.

[3]      CHESTERMAN JA: On 23 August 1988 the applicant pleaded guilty to the murder of Gretchen Smith on 1 April 1988. He was sentenced, as s 305(1) of the Criminal Code mandated, to life imprisonment.  Twenty two years later, on 18 October 2010, he applied for an extension of time within which to appeal against conviction and sentence. 

[4]      The principle on which the Court acts in such cases is to consider (1) whether any good reason has been shown to explain the delay in appealing and (2) whether it is in the interests of justice that the extension be granted.  Ordinarily the second consideration involves an assessment, to the extent possible, whether there is substance in the merits of the complaint against conviction and/or sentence.  The length of delay is relevant to the exercise of discretion to extend time.  Where the delay is as long as it is in this case an applicant must show compelling grounds for thinking that his conviction and/or sentence were unjust. 

[5]      The applicant set out six grounds in support of his appeal.  Ground 1 is that prejudicial medical evidence was admitted against him when, in fairness, it should have been excluded.  Ground 2 is difficult to comprehend but appears to be a complaint that the case against the applicant was contradictory and proceeded on a misapprehension of the real state of affairs.  Ground 3 is that a relevant medical report was not put before the primary judge.  Ground 4 is that the sentence was excessive and the conviction unsafe and unsatisfactory.  Ground 5 relies upon an alleged discrepancy between the reports of two pathologists.  Ground 6 is a plea for his release on parole because the applicant: 

“…has made a considerable amount of effort to get his life in order with a support network upon release in the future if given parole and the Parole Board should look at this in the near future.” 

[6]      The deceased, Gretchen Smith, was an 89 year old woman who lived in a self contained flat attached to her daughter’s house at Mackay.  The applicant, who was then 28, broke into the flat to steal what items of value he could find.  He was intoxicated from the ingestion of alcohol and amphetamines.  The deceased woke from her sleep during the course of the burglary.  The applicant stabbed her three times in the neck.  He did so to prevent her identifying him to police. 

[7]      The applicant’s version of events given to the investigating police officers was that the deceased walked into her bedroom while he was searching for property and he stabbed her immediately.  A forensic scientist who examined the murder scene expressed the opinion that the deceased had been stabbed in her bed and the body then dragged onto the floor.  Her pants had been pulled down to her ankles.  There was a tear to the vagina but no trace of seminal fluid in the vagina or on any item of clothing. 

[8]      As I mentioned the applicant pleaded guilty.  Through his counsel he adamantly denied any sexual element in the murder and maintained his version that he stabbed the deceased when she walked into the room, not when she was in bed. 

[9]      These questions of disputed fact were irrelevant both to conviction and sentence.  The applicant admitted the murder, killing Ms Smith intentionally in order to silence a witness to his burglary.  The only sentence the judge could impose was life imprisonment.  Whether Ms Smith was killed as she walked into her bedroom or as she lay on her bed was immaterial to conviction and sentence, as was whether he removed her underclothing and assaulted her sexually. 

1. As it was the learned sentencing judge did not find against the applicant on the disputed questions.  His Honour proceeded on the basis that the applicant had committed murder in the course of “a break and enter that went dreadfully wrong.” 

1. The applicant’s grounds which refer to the wrongful admission of evidence, the failure to tender relevant evidence, and contradictory pathology evidence, have as their basis the applicant’s concern that he was dealt with as someone who had molested his victim.  These concerns make up grounds 1, 2, 3 and 5. 

1. The dispute, if such it be, provides no reason for thinking that the conviction, or the sentence was unjust.  The applicant was guilty of murder on the version of facts that he advances.  That being so it is not in the interest of justice to extend time to allow the applicant to argue an appeal which has no discernable prospect of success. 

1. The sentence imposed was the only one permitted by law.  It cannot be challenged. 

1. A conviction which follows a plea of guilty will only exceptionally be set aside.  The applicant does not contend that he did not understand what he was doing when he pleaded guilty, or that his plea was improperly obtained, or that it was not entered freely and voluntarily.  Indeed the applicant in his written outline of argument appears to endorse his plea of guilty and to repeat his admission of guilt. 

He wrote:

“… I took full responsibility to the charge of murder back then and still take responsibility for that charge now …”.

1. These considerations dispose of ground 4. 

1. The applicant’s real complaint appears to be that he remains in prison despite seven years having elapsed since he became eligible for release on parole.  This is advanced in ground 6.  The applicant did make an application for parole but it was refused.  The applicant then made an application for judicial review of the adverse decision.  His application was dismissed by Peter Lyons J on 30 March 2010.  The learned judge was sympathetic to the applicant’s plight though unable to find any error in the process by which the Parole Board’s decision had been made.  It may be that which has led to the present application.  Whether or not that be right an appeal against conviction and/or sentence cannot stand as a proxy for an appeal against a Parole Board’s decision, which is not conferred by any relevant legislation.  The applicant’s sense of grievance at being denied parole, even if soundly based, does not give rise to a right of appeal against a wholly different decision. 

1. The applicant who argued the application in person told the court that a subsequent application for parole was successful and he was to be released on 2 February 2011.  His remaining interest in pursuing the application was to correct what he described as a “clerical error” in the records of his conviction.  The error is, apparently, that documentary material tendered to the court at the time of his sentencing tended to prove that he had molested the deceased. 

1. The position appears to be that evidence suggestive of molestation was put before the primary judge together with the applicant’s denial of such activity.  The matter was left unresolved because it could not be resolved and because it was irrelevant to the applicant’s guilt, which he admitted, and the sentence which the law mandated. 

1. There is no error to correct and no power in the court to alter the record of proceedings at sentence. 

1. The application is, I think, misconceived and must be dismissed.