R v Stewart
[2009] QCA 322
•23 October 2009
SUPREME COURT OF QUEENSLAND
CITATION:
R v Stewart [2009] QCA 322
PARTIES:
R
v
STEWART, Andrew Douglas
(applicant)FILE NO/S:
CA No 188 of 2009
DC No 8 of 2009DIVISION:
Court of Appeal
PROCEEDING:
Application for Extension (Conviction)
ORIGINATING COURT:
District Court at Bowen
DELIVERED ON:
23 October 2009
DELIVERED AT:
Brisbane
HEARING DATE:
15 October 2009
JUDGES:
Chief Justice, Keane and Holmes JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Application dismissed
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where applicant convicted of one count of fraud – where he sought extension of time within which to appeal conviction – where length of delay four months – whether applicant demonstrated any good reason for the delay – whether appeal would have prospects of success if extension were granted – whether Court should grant extension
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited
COUNSEL:
The applicant appeared on his own behalf
M J Copley SC for the respondentSOLICITORS:
The applicant appeared on his own behalf
Director of Public Prosecutions (Qld) for the respondent
CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Holmes JA. I agree that the application should be dismissed for those reasons.
KEANE JA: I have had the advantage of reading the reasons for judgment prepared by Holmes JA. I agree with those reasons and with the order proposed by her Honour.
HOLMES JA: The applicant, who was convicted of one count of fraud to the value of $5,000 or more on 4 March 2009, wishes to appeal his conviction. He lodged an application for an extension of time within which to appeal on 12 August 2009, some four months late. Such an application requires the Court to consider the length of the delay, whether there is any good reason shown to account for it and whether it is in the interests of justice to grant the extension. The last “may involve some assessment of whether the appeal seems to be a viable one”: R v Tait [1999] 2 Qd R 667.
In explaining the delay in his written submissions, the applicant says two things which are apparently contradictory: “My solicitor told me I could lodge an appeal against the sentence, but I don’t recall him telling me I could appeal the conviction per se. He also informed me that it was going to cost a lot more money to appeal said conviction, and I simply didn’t have the financial resources to pursue the appeal”. Despite his allusion to being warned of the cost of an appeal against conviction, he goes on to say that he was persuaded by his counsel’s advice not to appeal against the sentence and believed he could not appeal against the conviction. He was initially “traumatised” by imprisonment but gradually came to a view that justice had not been served.
The case against the applicant was that over four years between 2004 and 2008, he had sought donations for a charity called “Kids Can Ltd” which he had established to give for seriously ill children and their families a week’s holiday, providing free accommodation and travel. He had represented that a house which he leased in the Whitsunday region was available for that purpose, and that children were accommodated there by the charity; but in fact its rooms were rented out, mostly to backpackers, over most of the relevant period, the applicant receiving the rent paid. At best, only one family was in fact hosted. Meanwhile, the applicant signed cheques on the charity’s account, spending funds raised by the charity on the rent of the house and other associated expenses.
As to the grounds of the proposed appeal against conviction, the applicant complains that the arresting officer withheld evidence, including the charity’s audited accounts as presented to the Australian Securities and Investments Commission (“ASIC”) and the Department of Fair Trading, its cheque and deposit books, its bank statements as well as his own, and receipts. The officer was on leave and was not available for cross-examination at trial. The applicant asserts that his barrister was incompetent in failing to recognise the significance of the absence of such evidence and in not subpoenaing the police officer; did not follow his instructions to present evidence of audited accounts accepted by ASIC and the Department of Fair Trading which would have shown that the charity cost much more to run than it received; did not cross-examine the charity’s accountant, Ms Devery, as to the organisation’s expenses; and did not understand the case, and was distracted towards the end of the trial by another impending matter.
The applicant also says that the trial judge should have excused himself because he had a son with cancer and that he exhibited a negative attitude towards defence counsel. There is a more general allegation that the judge misdirected the jury in summing up and drew unsustainable conclusions, referring to evidence not submitted and incorrectly referring to evidence that had been submitted. Finally, the applicant says that the jury was out of its depth and there was no evidence proving misappropriation of funds by him.
However, from the transcript of discussion between the learned judge and counsel for the applicant at trial it is apparent that while the police had seized the charity’s cheque books, they had been returned, so that defence counsel was in fact in possession of them at the trial; while statements for the charity’s accounts were before the jury. The trial transcript shows that the applicant’s bank statements, described as covering the relevant four year period, were also tendered; the learned judge noted that they indicated he had little or no capacity to make any financial contribution to the charity. Insofar as any earlier statements might have been relevant, one would assume that the applicant was able to obtain them had he thought them relevant for trial. And it is also apparent from an interchange between defence counsel and the bench on sentence that counsel had bank statements which were not put into evidence, asserting, quite correctly, that there was no onus on the accused to prove anything. (The applicant did not give evidence; there is nothing to suggest that that was not an informed choice.)
Ms Devery, the accountant who audited the charity for ASIC purposes, gave evidence from the audit reports she had prepared of the receipts and expenses over four financial years. The largest component of the expenses was rental of the house, but other amounts were spent on food, telephone and electricity accounts, a car and travel. The applicant shifted his ground somewhat in oral submissions from claiming that the audit evidence was not before the court to asserting that his counsel had incompetently failed to challenge the auditor’s evidence as to expenses. Given that the auditor said that she had obtained the information from the applicant, that seems an unrealistic proposition. The real problem for the applicant was that the audits were done on a false premise: the auditor had acted on his claim that the house was being used over the four years to accommodate families when, in fact, he conceded in his interview with a police officer that only one family had ever stayed at the house, shortly after the charity was formed.
The applicant asserted in written submissions that his barrister was incompetent in failing to recognise the significance of the absence of evidence in the form of cheque books, statements and the audit reports. Firstly, as I have described, a good deal of it seems in fact to have been in evidence, contrary to the applicant’s assertion. Secondly, insofar as evidence was not tendered, while the inference is that it was not inculpatory, it does not follow that it was exculpatory. Counsel, however, used the absence of the documents for all it was worth, notwithstanding that at least some of them were actually in his possession. He persuaded the learned judge to instruct the jury that because the police had not obtained earlier bank statements and had not produced the cheque books, there was a risk in drawing inferences from the tendered bank statements as to the source and fate of monies in the account.
What would have been gained from subpoenaing the police officer is mysterious. In fact, his absence was probably to the defence’s benefit. The learned judge directed the jury that they could take into account the disadvantage the defence suffered in not being able to ask the investigating officer questions. The accusation that the applicant’s barrister did not understand the case or lost focus on it finds no support in any part of the transcript; quite the contrary is true.
The proposition that the trial judge had a son with cancer was not raised with him, unsurprisingly; if it were true, it would provide no intelligible reason for him to disqualify himself. The suggestion of animus is not borne out by the exchanges between defence counsel and the bench during the trial. As to the complaints of the summing up, it is difficult, in the absence of any more specific indication of what directions are complained of, to see any substance in this proposed ground. There was a discussion between the judge and defence counsel as to his Honour’s observations about similar sums of money going out of the charity’s accounts and into the applicant’s account on the same day; defence counsel disputed that that was so. That was resolved by the judge telling the jury that he could have been wrong, and that they should examine the statements for themselves.
Finally, the applicant says that the jury was out of its depth and there was no evidence proving misappropriation of funds by him. But there was evidence from which the jury could conclude that he had made false claims about the charity’s functioning and received funds for a purpose which could not be achieved, since the house was tenanted; and it would follow that the expenses paid by cheque from the charity’s account drawn by the applicant were in reality for his benefit.
On the question of delay, apart from the obvious inconsistency between the applicant’s complaining that he does not recall his solicitor telling him he could appeal his conviction, and his complaint that he could not afford to do so, it seems inherently implausible that the applicant, who was a man in his 50’s, said to have studied journalism and run a variety of businesses, would not realise that such an appeal was available or at least made enquiry about it. The reason for the delay is unconvincing. The prosects of success are demonstrably poor. I would exercise the discretion against extending time.
The application for an extension of time to appeal against conviction should be dismissed.
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