R v Milne - [2016] QCA 235

[2016] QCA 235

COURT OF APPEAL

MARGARET McMURDO P
GOTTERSON JA
MORRISON JA

CA No 140 of 2016
DC No 1044 of 2014

THE QUEEN

MILNE, Robert John Applicant

BRISBANE

THURSDAY, 15 SEPTEMBER 2016

JUDGMENT

GOTTERSON JA: On 6 May 2015, in the District Court at Brisbane, Robert John Milne was found guilty and convicted of some eight offences. Three convictions were for rape. Three were for indecent dealing, and two were for procuring a child to commit an indecent act. All offences concerned the same female complainant, who was, at all material times, under 12 years of age. All offences were alleged to have occurred within the period beginning on 31 December 2001 and ending on 6 July 2003, when the complainant was five to seven years of age. Mr Milne was sentenced on the same date to four years’ imprisonment for the rape offences and to concurrent terms of two years’ imprisonment for the other offences.

On 25 May 2015, the Toowoomba solicitors who had acted for Mr Milne at his trial filed a notice of appeal in this Court against his convictions. That document initiated appeal number 101 of 2015. It nominated one ground of appeal, namely, that the jury verdict was unreasonable in all the circumstances. The appeal was listed for hearing on 12 February 2016. However, on 5 February 2016, Mr Milne, who, by that time, appears to have been without legal representation, filed a notice of abandonment of his appeal.

Notwithstanding that, on 24 May 2016, Mr Milne filed two documents in this Court concerning his convictions. One is a Form 28 Notice of Application for Extension of Time within which to appeal. The other is a Form 26 Notice of Appeal. Both forms have been completed by Mr Milne in his own handwriting. More recently, on 19 August 2016, he filed a short handwritten submission in support of his extension of time application.

I note that the recently filed notice of appeal differs in two respects from the original notice of appeal, so far as the grounds of appeal are concerned. First, it gives some particularisation to the unreasonable verdict ground. Secondly, it adds a second ground alleging a miscarriage of justice. The stated grounds are:

“(a)The verdict of the jury was unreasonable, based on hearsay, with no supporting evidence to the complainant’s allegations.
(b)Miscarriage of justice. Specifically the DPP withheld evidence. A record of interview made by the complainant on 9.11.2014 at Morningside Police Station. I saw this for the first time in January of this year (2016).”

It need be said at once that Mr Milne’s application for an extension of time in which to appeal is misconceived. He did appeal, and then he abandoned the appeal. Once notice of abandonment was given, the appeal was taken to be dismissed under r 70(2) of the Criminal Practice Rules 1999.

Rule 70(3) does, however, confer a discretion on this Court to set aside an abandonment and reinstate an appeal if the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Milne

Details

AGLC: R v Milne [2016] QCA 235
Case: [2016] QCA 235
Decision Date: 15 September 2016

CaseChat Overview and Summary

In the case of R v Milne, the applicant, Robert John Milne, was convicted of eight offences, including three counts of rape, three counts of indecent dealing, and two counts of procuring a child to commit an indecent act, all of which involved the same under-12-year-old female complainant. Milne was sentenced to four years' imprisonment for the rape offences and concurrent terms of two years' imprisonment for the other offences. Milne's initial appeal against his convictions was abandoned, but he subsequently sought an extension of time to appeal and filed a new notice of appeal, alleging an unreasonable verdict and a miscarriage of justice due to the withholding of evidence. The court was required to determine whether it was necessary in the interests of justice to set aside the abandonment of the appeal and reinstate it, and whether an extension of time should be granted.

The Court of Appeal found that Milne's application for an extension of time to appeal was misconceived, as his initial appeal had already been dismissed after he abandoned it. However, the court considered his application as an application to set aside the abandonment and reinstate the appeal, based on the grounds set out in his recent notice of appeal. The court examined the reasons for the abandonment, the delay in seeking reinstatement, and the prospects of success of the proposed grounds of appeal. The court found that Milne had not provided sufficient evidence to explain the abandonment or the delay in seeking reinstatement. However, the court was more concerned with the prospects of success of the proposed grounds of appeal. The court found that there was no evidence to support Milne's claim that a transcript of the complainant's re-interview was withheld, and that the verdict was not based on hearsay or unsupported evidence. Therefore, the court concluded that it was not necessary in the interests of justice to set aside the abandonment and reinstate the appeal.

The Court of Appeal refused the application to set aside the abandonment of the appeal and to reinstate it, as well as the application for an extension of time within which to appeal. The orders were as proposed by Justice Gotterson, with agreement from The President and Justice Morrison.

Orders