R v. Revell

[2008] QCA 8

SUPREME COURT OF QUEENSLAND

CITATION:	R v Revell [2008] QCA 8
PARTIES:	R v Revell, Graham Phillip (applicant/appellant)
FILE NO/S:	CA No 40 of 2007 DC No 457 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED EX TEMPORE ON:	6 February 2008
DELIVERED AT:	Brisbane
HEARING DATE:	6 February 2008
JUDGES:	de Jersey CJ, McMurdo P and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1.  Appeal dismissed 2.  Application for leave to call further evidence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – GENERAL – where applicant was convicted for the indecent treatment of a child – where applicant has been released from custody – where applicant seeks further adjournment to assemble fresh evidence – whether adjournment should be granted
COUNSEL:	The applicant appeared on his own behalf D Holliday for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE:  On the 8th of February 2007 the applicant was convicted by a jury of the indecent treatment of a child then 10 years of age.  The offence occurred on the 4th of January 2006. 

On the 2nd of March 2007 the applicant appealed against that conviction and applied for leave to call further evidence.  Following his conviction he was sentenced to nine months' imprisonment with parole eligibility recommended after six months.  Legal Aid Queensland indicated a willingness to support the applicant in an application for leave to appeal against sentence but not in an appeal against conviction.  The applicant did not appeal against that refusal of legal aid.

The matter first came before the Court on the 10th of July 2007.  The applicant was then granted an adjournment at his request although it was emphasised by the Court that in consequence his eligibility for parole to apply for parole the following month would be deferred because of the operation of Section 180, subsection 2 of the Corrective Services Act.  He has now served his full term having been released in November 2007. 

After the hearing on the 10th of July 2007 a new date was set later in the year.  In October 2007 the applicant sought a further adjournment and the Court granted that adjournment until today.  The applicant now seeks a further adjournment of the matter to facilitate his assembling of the further evidence upon which he would seek to rely.  Yet he has had since early 2007, in effect, to do that.  Particularly, he has had since his release from custody, about three or four months to assemble that material, yet none has been presented here today in documentary form. 

The applicant referred to evidence which he would seek to lead from Mr Brett Lee but it would appear that the issue concerning Mr Lee was alive within the defence camp at the time of the trial.  That emerges from page 11, line 55 of the Section 93A recording.

So far as the nature of the other intended evidence has been disclosed, and that emerged at the hearing on the 10th of July 2007, it would go to the complainant's credibility and had been outlined by the applicant to his legal representatives prior to or at the trial.  It seems highly doubtful that it could constitute fresh evidence in the relevant sense.

As I say, the appellant has sought an adjournment here this morning.  He could give no reasonable assurance that he would be ready to proceed at any particular time in the future.  In my view he has had ample opportunity to prosecute his appeal and has not done so conscientiously.  The Crown I should say opposes any further adjournment of the matter.

I would order that the appeal be dismissed and the application for leave to call further evidence refused. 

THE PRESIDENT:  I agree.

FRYBERG J:  I agree.
THE CHIEF JUSTICE:  Those are the orders.  Thank you.

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