R v. Hazel

[2008] QCA 180

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hazel [2008] QCA 180

PARTIES:

R
v
HAZEL, Wayne Robert
(applicant)

FILE NO/S:

CA No 47 of 2008
DC No 332 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

10 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

10 July 2008

JUDGES:

McMurdo P, Muir JA and Mackenzie AJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for an extension of time within which to appeal against conviction refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where application for extension of time within which to appeal against conviction filed over five months late – where applicant cited shock and limited literacy for delay – where the issues the applicant proposed to raise on appeal went to the complainant’s credibility and did not constitute fresh evidence –  whether there was any reasonable prospect of the applicant succeeding in an appeal against conviction – whether an extension of time should be granted

R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied

COUNSEL:

Mr Hazel appeared on his own behalf
G P Cash for the respondent

SOLICITORS:

Mr Hazel appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT:  Justice Mackenzie will deliver his reasons first.

MACKENZIE AJA:  The applicant applies for an extension of time within which to appeal against conviction.  He was convicted on 8 August 2007 of three counts of indecent treatment of a child under 16 with a circumstance of aggravation that the child was under 12 years of age.  The application for an extension of time was not filed until 26 February 2008, over five and a half months late.  The explanation given by the applicant is that he went through a month of shock when he entered into prison.  He sought medication for depression.  He also says that he is not very literate and did not understand anything about the appeals process.  It took time to trust an inmate to help him and advise him what he had to do in that regard. 

It appears from the submissions on sentence that the applicant was about 54 years of age at the time of the offending behaviour.  He had left school at the end of grade seven and seems to have principally been engaged in blue-collar activities such as farm work, working at a meat works and on the railways and as a plant operator at the alumina works at Gladstone.  It appears from the submissions on sentence that the last mentioned job ended when he was convicted in 1985 of an offence of unlawful carnal knowledge against the order of nature committed on a child who was about 11 years old.  He received a sentence of three years imprisonment, with a recommendation for parole after 12 months but it is said that he actually served a lengthier unspecified period than that. 

In the present matter, the prosecution's case was in brief that on three identifiable occasions when the child was allowed to go to the applicant's house to play computer games, the applicant rubbed his exposed penis between the child's buttocks for some minutes while the child was lying on a mattress playing computer games.  The defence case was that no sexual abuse had occurred. 

The matters which the applicant would wish to raise on appeal, according to the documents filed, consist of complaints of a general nature about the complainant’s credibility and some specific issues of facts.  In the first category are allegations that the complainant lied and that his parents had influenced what he said.  It is asserted that the complainant said what he had been told to say and what he thought the interviewers wanted to hear.  The specific issues are that the complainant did not lie on a mattress.  He sat on the corner of it because it was the only position from which he could see the TV screen to play Nintendo.  It is also asserted that the applicant did not own a computer or a game called Vietnam.  That was a matter which was also relied on as affecting the complainant’s credibility.  In oral submissions, he supplemented those complaints by referring to a number of other factual issues which went to credibility.  He also said that he felt that he did not get a fair trial because he formed the opinion that the jury took an adverse view of him quickly once the nature of the allegations became apparent. 

That perception, of course, is not sufficient to raise a case that is viable on appeal.  With regard to the other matters, if true, the matters of general complaint and the specific issues raised were things of which the applicant was aware at the time of trial.  The material raises no element of fresh evidence.  Nor is there any evidence that tends to establish that the applicant's assertions may be true.  It may also be noted that he elected not to give evidence at trial on advice of his legal advisors and no affidavit has been sworn in these proceedings. 

The case was one that depended on acceptance beyond reasonable doubt of the complainant’s evidence.  The jury verdict shows that they did.  The learned trial Judge's summing up made it clear that, to convict, there had to be acceptance beyond reasonable doubt of the complainant as a credible witness.  The trial Judge warned the jury appropriately to scrutinise his evidence carefully.  Reading the summing up suggests that the learned trial Judge put the competing cases and summarised the respective submissions on the issue of credibility clearly.  It is apparent that the complainant had been reticent about describing in detail what had happened.  However, there was sufficient evidence for a jury, properly instructed, to find the applicant guilty of the three offences provided they accepted the complainant's evidence.  The respective explanations for that reticence were put to the jury.  It was the Crown's submission that it was the result of embarrassment.  The defence submitted that it was because he was telling lies. 

There is no complaint that there was any lack of balance, any inadequacy in summarising the competing submissions or any other error in the summing up on this critical issue.  It appears from what was said in the summing up that it had been conceded by the defence in submissions to the jury that the only issue was whether the incidents happened and that if the jury accepted the complainant as a credible witness the applicant was guilty. 

On the material before the Court, there is no reasonable prospect of the applicant succeeding in an appeal against conviction.  Accordingly, in conformity with the principle in R v Tait [1999] 2 Qd R 667 the application for an extension of time within which to appeal against conviction should be dismissed.

THE PRESIDENT:  I agree.

MUIR JA:  I agree.

THE PRESIDENT:  The order is the application for an extension of time to appeal against conviction is refused.  Thank you.

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