R v McCullagh

Case [2021] QCA 6

SUPREME COURT OF QUEENSLAND

CITATION:

R v McCullagh [2021] QCA 6

PARTIES:

R
v
McCULLAGH, Peter John
(applicant)

FILE NO/S:

CA No 27 of 2020
DC No 261 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction & Sentence)

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction and Sentence: 31 August 2018 (Clare SC DCJ)

DELIVERED ON:

29 January 2021

DELIVERED AT:

Brisbane

HEARING DATE:

21 October 2020

JUDGES:

Morrison and Mullins JJA and Crow J

ORDER:

Application for extension of time within which to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where a jury found the applicant guilty of three counts of rape and five counts of indecent treatment – where the applicant has applied for leave to appeal his convictions out of time – where the applicant filed his application for leave to appeal almost 16 and a half months after he was convicted – whether the application for an extension of time within which to appeal should be refused

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE – where one of the grounds of appeal was that the verdicts were unreasonable and cannot be supported having regard to the evidence – whether overall the inconsistencies between the complainant’s evidence and that of the applicant and other defence witnesses were not so compelling that it obliged the jury to reject her evidence as unreliable, or have such a doubt about acceptance of her evidence that it would prevent them from being satisfied that the events occurred as she said

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – where the other grounds of appeal were that the verdicts were inconsistent, and there was a miscarriage of justice due to misdirections given to the jury – whether there is merit in those contentions

Criminal Code (Qld), s 671

Baguley v Lifestyle Homes Mackay Pty Ltd[2015] QCA 75, cited
Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, cited
R v GV[2006] QCA 394, cited
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited
Spencer v Hutson[2007] QCA 178, cited

COUNSEL:

The applicant appeared on his own behalf
P J McCarthy QC for the respondent

SOLICITORS:

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

  1. MORRISON JA:  I have had the benefit of reading the draft reasons prepared by Crow J.  I agree with his Honour’s conclusions that there has been no satisfactory explanation for the delay in bringing the present application.

  2. In fact, I would be prepared to draw the conclusion that part of the delay was because the applicant had received legal advice which was not favourable as to success of any appeal, and he therefore let matters lie as a matter of deliberate choice, rather than simply inaction because…

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AGLC
R v McCullagh [2021] QCA 6
Case
[2021] QCA 6
Decision Date

CaseChat Overview and Summary

On 31 August 2018, the jury found the applicant guilty of three counts of rape and five counts of indecent treatment of a child, while acquitting him on one count of indecent treatment. The applicant was sentenced to seven years' imprisonment for two of the rape convictions, with concurrent sentences for the remaining charges. The applicant applied for leave to appeal his convictions out of time, having filed his application nearly 16 and a half months after his conviction. The primary legal issues were whether the application for an extension of time to appeal should be refused and whether the grounds for appeal were meritorious.

The court examined the applicant's contentions that the verdicts were unreasonable and could not be supported by the evidence, inconsistent, and that there was a miscarriage of justice due to misdirections given to the jury. The court held that the inconsistencies between the complainant's evidence and the applicant's and other defence witnesses' evidence were not compelling enough to require the jury to reject the complainant's evidence as unreliable. The court also found that the conflicts in the evidence were quintessential jury questions and that the jury was not obliged to reject the complainant's evidence because of confusion in identifying boats in photographs. The court concluded that the proposed appeal was not viable and the prospects of success were not reasonable, and that the delay in bringing the application did not demonstrate a need to prevent a substantial injustice.

The court refused the application for an extension of time within which to appeal. The order was that the application for extension of time within which to appeal was refused. The reasons for this decision were that the proposed appeal was not viable and the prospects of success were not reasonable, and that the delay in bringing the application did not demonstrate a need to prevent a substantial injustice. The judges agreed with the reasons and the proposed order.

Orders

Orders of the court

Application for extension of time within which to appeal refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Therefore, in finding the applicant not guilty in relation to that count, no true or direct inconsistency arises.Verdict unreasonable or not supported by the evidence Section 688E(1) of the Code provides:“668E Determination of appeal in ordinary cases (1) The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.” The approach which an appellate court ought to take when considering “the unreasonableness ground” was stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen.[47] The court must ask itself:[48]“[W]hether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”[47](1994) 181 CLR 487.[48]M v The Queen (1994) 181 CLR 487 at 493. The test, as espoused in M v the Queen, was further clarified by the High Court in Libke v The Queen, in these terms:[49]“[113] But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant’s guilt.”(Footnotes omitted; original emphasis.)[49]Libke v The Queen (2007) 230 CLR 559 at 596. Settings aside a jury verdict on the basis that it was unreasonable is a serious step.[50] The High Court has recently summarised the role of an appellate court as:[51]“[39] The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt”(Footnotes omitted.)[50]R v Sun [2018] QCA 24 citing R v Baden-Clay (2016) 258 CLR 308 at 329.[51]Pell v The Queen (2020) 94 ALJR 394 at 402 [39]. Clearly, and as stated earlier, any assessment of the merits of an appeal on the ground of unreasonableness, necessarily requires an examination of the evidence. Despite a lack of direct inconsistency between the jury’s not guilty decision on count 1 and the guilty decisions on counts 2 through to 9, as mentioned above, it still should have created difficulties for the crown case as it directly went to the credibility of the complainant. This requires some explanation.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The applicant gave evidence that there was an occasion when he was in the pool with the complainant and his daughter, and when he was touching the complainant, in the sense that he said he was trying to toss her. However, he denied that any of the alleged events occurred. Self-evidently the jury accepted the complainant as a reliable and credible witness.Consideration Overall the inconsistencies between the complainant’s evidence and that of the applicant and other defence witnesses were not so compelling that they obliged the jury to reject her evidence as unreliable, or have such a doubt about acceptance of her evidence that it would prevent them from being satisfied that the events occurred as she said. On each count her evidence was replete with consistently expressed detail, and there was some preliminary complaint evidence. The main conflict was that in respect of the evidence concerning which boat was the one taken to Tangalooma, whether it was left at the marina, and were items being unpacked directly from a boat in to the shed. Those conflicts were all quintessential jury questions. The complainant’s evidence was not that the boat had been taken back to the house, except in an ex-post facto rationalisation as to how could they have unpacked stuff off a boat if it had not been taken back. Her evidence as to unloading stuff off the boat did not have to be understood as meaning off the boat while it sat there at the shed, as opposed to being stuff that was off the boat and then being packed into the shed. As to this and other areas of the complainant’s evidence the jury had the benefit of seeing and hearing her evidence, which an appellate court does not. The jury were not obliged, in my view, to conclude that the complainant’s evidence should have been rejected as unreliable, simply because of her confusion emanating from identifying boats in photographs. After all, her oral evidence was given when she was 15 and the particular events she was recalling occurred at least three years prior to that. Other conflicts in the evidence (such as to do with events in the pool and who was in the car when they went to Redcliffe Lagoon) were also quintessentially jury questions. Therefore, I am unable to conclude that the proposed appeal is viable or the prospects of success are reasonable so as to overcome the unsatisfactory attempts to explain away the very long delay in bringing this application.[32] And, the review above shows that an extension of time is not demonstrably necessary to prevent a substantial injustice.[32]R v Tait [1999] 2 Qd R 667; [1998] QCA 304 at 668 [5]. For these reasons I would refuse the application for an extension of time within which to appeal. I propose the following order:1.Application for extension of time within which to appeal refused. MULLINS JA: I agree with the reasons of and the order proposed by Morrison JA. CROW J: On 31 August 2018, a jury found the applicant guilty of three counts of rape and five counts of indecent treatment of the same child in the period between 31 December 2013 and 8 February 2017. The jury found the applicant not guilty of one count of indecent treatment of the same child in the period between 31 December 2012 and 1 January 2014. The applicant was sentenced to seven years’ imprisonment in respect of two of the rape convictions and lesser concurrent sentences in respect to the balance of the offending.