R v Murphy - [2016] QCA 45

SUPREME COURT OF QUEENSLAND

CITATION:

R v Murphy [2016] QCA 45

PARTIES:

R
v
MURPHY, John Steven
(applicant)

FILE NO/S:

CA No 317 of 2014
DC No 861 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 12 February 2014

DELIVERED ON:

1 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

22 February 2016

JUDGES:

Gotterson and Morrison and Philip McMurdo JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for an extension of time is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – GENERAL PRINCIPLES – where the applicant was convicted of rape and unlawful and indecent dealing with a child under 16 – where the applicant did not appeal his conviction within the requisite period – where the applicant seeks leave for an extension of time to appeal – where the applicant claims that a miscarriage of justice has occurred because the complainant’s evidence was misunderstood by the jury at trial, and because there were discrepancies and inconsistencies in the evidence could not support a guilty verdict – whether there was a miscarriage of justice

R v CAP (No 2)[2014] QCA 323, cited

COUNSEL:

The applicant appeared on his own behalf
S J Farnden for the respondent

SOLICITORS:

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

GOTTERSON JA: I agree with the order proposed by Morrison JA and with the reasons given by his Honour.
MORRISON JA: On 12 February 2014 Mr Murphy was convicted, after a trial, on two counts. Count 1 was that on an unknown date between 15 March 2012 and 31 March 2012 Mr Murphy raped the female complainant. She was then 12 years old. Count 2 was that on 27 May 2012 Mr Murphy unlawfully and indecently dealt with the same complainant, then a child under 16.
Mr Murphy did not appeal against his convictions within the requisite period to do so, which expired on 12 March 2014. I will shortly examine his explanation for that.
He now seeks to extend the time to appeal his convictions. His application was filed on 2 December 2014. It was thus nearly nine months after when an appeal should have been lodged.
The issues raised by this application are whether:
(1)there is any good reason to account for the delay; and
(2)overall, is it in the interests of justice to grant the extension of time?[1]
[1]R v Tait [1999] 2 Qd R 667 at [5].
The applicable principles are well known. In R v CAP (No 2) the Court recently restated them:[2]
“[4]On an application for an extension of time to appeal in a criminal matter the principles have been well established in R v Tait.[3] The court examines whether there is any good reason shown…

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 Murphy

Details

AGLC: R v Murphy [2016] QCA 45
Case: [2016] QCA 45
Decision Date: 1 March 2016

CaseChat Overview and Summary

In the case of R v Murphy, the applicant sought leave to appeal against his convictions for rape and unlawful and indecent dealing with a child under 16, on the basis of a claimed miscarriage of justice. The applicant had not appealed his conviction within the requisite period and sought an extension of time to appeal. The central issue before the court was whether there had been a miscarriage of justice due to the complainant’s evidence being misunderstood by the jury, and because of alleged discrepancies and inconsistencies in the evidence that allegedly could not support a guilty verdict. The court was required to determine whether the applicant had provided a satisfactory explanation for the delay in appealing and whether there were prospects of success on the appeal.

The court found that the applicant had not provided a satisfactory explanation for the delay in appealing. The court also found that there were no discrepancies or inconsistencies in the evidence that would have affected the outcome of the trial. The court held that the matters raised by the applicant were ones for the jury, and the jury had properly considered the evidence. The court further found that the applicant's proposed appeal did not have prospects of success. The court held that there was no miscarriage of justice and that it was not in the interests of justice to grant the extension of time.

The court refused the application for an extension of time. The judge concluded that the applicant had not provided a satisfactory explanation for the delay in appealing, and that there were no discrepancies or inconsistencies in the evidence that would have affected the outcome of the trial. The court found that the applicant's proposed appeal did not have prospects of success and that it was not in the interests of justice to grant the extension of time.

Orders

Orders of the court

The application for an extension of time is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Those matters are ones for the jury, and were the subject of address.[16] They do not establish that a miscarriage of justice has occurred, in respect of either conviction. I do not consider that the first ground of the proposed appeal has merit.[16]T 16 lines 40-46; T 57 lines 14-20 and 35-45; T 58 lines 1-6; T 61 line 36 to T 62 line 3; T 63 lines 8-14.Second point – inconsistencies in the evidence. As developed in the further outline this point focused on four main areas of contended inconsistencies in the evidence:[17](a)the first area concerned that part of the Crown case that concerned the discovery of condoms in Mr Murphy’s car, and the conversation the complainant said she had with him about condoms and their use; Mr Murphy pointed to variations in the evidence as to who asked for a phone to be retrieved from the car, which led to the condoms being discovered; he also pointed to variations in the evidence as to where he was when the request for the phone was made;(b)the second area concerned the evidence from the complainant and her mother as to an inappropriate conversation between the complainant and Mr Murphy on the verandah of the house one night; Mr Murphy pointed to the fact that the mother had not referred to the event in her police statement;(c)the third area concerned differences in the evidence as to what the complainant said (that she was actually touched), and her mother’s statement to police as to what she was told by the complainant (that Mr Murphy did not physically touch her, but pointed towards her “vaginal area”); and(d)the fourth area concerned inconsistencies in the complainant’s account as to the second charged event, appearing from a police statement and evidence of L (a friend of the complainant); L said the complainant’s account to her, as to one charged event, was that the event occurred on a day when L had been at the property, whereas neither the complainant, her mother or M (the complainant’s sister) said that L was there on that day; further, though the complainant’s evidence was that Mr Murphy had made comments to her about body piercings which he said were on another girl, L said that the complainant did not relate that aspect to her.[18][17]Some additional minor aspects were raised but they do not add weight to those dealt with.[18]The complainant said Mr Murphy had referred to the fact that another (named) girl had body piercings in the area of the complainant’s body, which he was touching or to which he was pointing. It was conceded at trial that the named girl did not have any such body piercings, had not claimed to, nor had discussed such a thing with Mr Murphy. The variations in the accounts as to the discovery of the condoms included: the complainant said that Mr Murphy asked for his phone, whereas M said that another person asked for it; the complainant and M said Mr Murphy was at the fire when the request for the phone was made, whereas the mother said he was on the verandah; and different accounts came from the complainant in her police interviews, as to when Mr Murphy spoke to her about condoms (at the fire, soon after or some hours later).

Decision

Reasons for decision

This aspect is answered by the conclusions reached as to the inadequacy of the explanation for the delay, and the lack of prospects of success on the appeal. It is not in the interests of justice to grant the extension of time.Conclusion on the application For the reasons expressed above I would refuse the application. PHILIP McMURDO JA: I agree with Morrison JA.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Murphy [2016] QCA 45
PARTIES:	R v MURPHY, John Steven (applicant)
FILE NO/S:	CA No 317 of 2014 DC No 861 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 12 February 2014
DELIVERED ON:	1 March 2016
DELIVERED AT:	Brisbane
HEARING DATE:	22 February 2016
JUDGES:	Gotterson and Morrison and Philip McMurdo JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for an extension of time is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – GENERAL PRINCIPLES – where the applicant was convicted of rape and unlawful and indecent dealing with a child under 16 – where the applicant did not appeal his conviction within the requisite period – where the applicant seeks leave for an extension of time to appeal – where the applicant claims that a miscarriage of justice has occurred because the complainant’s evidence was misunderstood by the jury at trial, and because there were discrepancies and inconsistencies in the evidence could not support a guilty verdict – whether there was a miscarriage of justice R v CAP (No 2)[2014] QCA 323, cited
COUNSEL:	The applicant appeared on his own behalf S J Farnden for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent