R v Stubbs

[2005] QCA 24

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stubbs [2005] QCA 24

PARTIES:

R
v
STUBBS, Niall David
(applicant)

FILE NO/S:

CA No 377 of 2004
DC No 39 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Gympie

DELIVERED EX TEMPORE ON:

11 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2005

JUDGES:

de Jersey CJ, Jerrard JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDERS:

1.   Refuse application for extension of time within which to appeal against conviction

2.   Refuse application for the issue of subpoenas

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL– PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where application for extension lodged two years after pleading guilty and being sentenced – where applicant was represented by Counsel in District Court – where applicant contends he only just became aware of s 280 Criminal Code – whether applicant should be granted an extension of time to appeal against conviction

COUNSEL:

The applicant appeared on his own behalf
R Martin SC for the respondent

SOLICITORS:

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

THE CHIEF JUSTICE:  On the 20th April 2004 after a trial at which the applicant represented himself he was convicted in the Magistrates Court of common assault and fined $500.

He appealed to the District Court under section 222 of the Justices Act. On the 5th August 2004 a learned District Court Judge heard that appeal. The applicant again represented himself. His Honour dismissed the appeal against conviction but reduced the amount of the fine to $300.

By application filed on the 20th August 2004 the applicant seeks leave to appeal from the Judgment of the District Court leave being necessary because of section 118 of the District Court's Act.  The charge arose from the applicant's touching the 15 year old complainant girl who was a sales attendant in a store at Gympie.  The complainant's evidence was that the applicant grabbed her from behind in the area on and above her left hip in the manner in which her boyfriend sometimes touched her.

The applicant's contrary version was that he tapped her in that area innocently with a couple of fingers in order to attract attention.  The applicant gave evidence himself and called the complainant's mother and the store manager as his witnesses each of whom attested to the complainant's subsequently distressed condition.  During his cross-examination of the complainant the applicant offered her an apology.

The Magistrate found that the incident occurred in accordance with the complainant's evidence and rejected the contrary evidence of the applicant as being unreliable and selective.  It may be observed that the applicant cross-examined the complainant and put to her his version of how the contact had come about.

The Magistrate is furthermore to be taken to have excluded the operation of section 24 of the Criminal Code on the basis that in light of the manner of the touching it could not have been reasonable for the applicant to have believed that the complainant was consenting to his doing so. In his notice of appeal to the District Court the applicant contended that he was denied natural justice in the Magistrates Court in that he had no opportunity to cross-examine certain Crown witnesses. They were police officers who were not called from whom the applicant apparently wished to establish his preparedness to apologise to the complainant.

There was, as I have mentioned, in fact evidence of that from the applicant himself.  Evidence of the police officers to that effect would have been self serving and irrelevant as essentially held by the District Court Judge.  Accordingly, there would have been no point in adjourning the hearing in the Magistrates Court as had been sought by the applicant.  His Honour rejected the applicant's additional criticism of the course of proceedings in that regard.

The applicant also contended in his notice of appeal to the District Court that the prosecution had submitted false evidence in the Magistrates Court.  That concerned, it seems, an inaccurate entry in the applicant's criminal history which was tendered in the usual way after the Magistrate had given Judgment in relation to the matter of conviction.

It is clear from the record that the Magistrate was aware of the inaccuracy and did not take account of the inaccurate record.  There was also in the notice of appeal a contention that the Magistrate exhibited bias, to be discerned from his various statements to the applicant during the course of the hearing, from the circumstance that the applicant had complained about the Magistrate to the Chief Magistrate, and the circumstance that a previous judgment of the Magistrate in respect of the applicant had been overturned by the District Court.

The learned Judge noted that the Magistrate displayed some irritation adding his view that that was understandable in view of the way the matter was being conducted by the applicant but the Judge rejected the contention that the Magistrate had been biased.

The learned Judge gave comprehensive reasons for Judgment in which he canvassed the relevant issues in some detail and explained in comprehensible terms why the Magistrate's determination was not vulnerable in the respects advanced by the applicant.  In his application for leave to appeal to this Court the applicant asserts the falsity of the evidence on which the prosecution relied, that the Magistrate and the prosecutor had been subject to complaints to the Crime and Misconduct Commission which was conducting investigations, that affidavits from police offices put into evidence before the Magistrate were inconsistent with evidence before the District Court, and that the District Court Judge erred in not adjourning the hearing of the appeal in order to allow the applicant more time to prepare.

The applicant contends and complains that he was given certain affidavit material, the Crown's outline of submissions and a copy of some telephone recordings only two days before the appeal hearing.  The learned Judge heard argument about whether the appeal hearing should be adjourned and exercised his discretion to refuse adjournment. 

There having been one appeal already, some special reason needs to be advanced why leave should be granted to facilitate a second appeal.  One would ordinarily think that a full hearing on the merits followed by a comprehensive appeal in the District Court would suffice in the interests of justice.  However, leave to appeal will be given should some sufficient reason be displayed.

Without wishing to be exhaustive, I list some of the circumstances in which leave might be forthcoming:  if the case were to throw up some presently uncertain question of law the resolution which would be of general importance or utility; if the case were to raise a matter of public importance; if it were clear the applicant had been denied natural justice in an important respect; if some glaring error of law had previously passed undetected; or if there were some other special aspect of the case or some other particular reason warranting according a second opportunity for appeal.  But none of those situations obtains here.  Furthermore, in my view, the judgment of the learned Judge was plainly right. 

The applicant raised a number of matters orally here this morning: that in her statement to the police the complainant said that the applicant touched her, the use of the word "touched" being significant in his submission; that an issue of compensation was raised at the hearing suggesting a particular direction in the police investigation, for example; as to the fairness of the conduct of the Prosecutor to be discerned from the cross-examination recorded at page 73 of the transcript; as to whether the Prosecutor was proceeding fairly in his cross-examination at another part of the transcript, that is pages 39 to 40; as to the significance of the applicant's assertion to police officers that he had a right to touch the complainant, a passage, he says, was edited out of tape-recordings.

Self-evidently, none of those matters of essential detail gives rise to any serious case of vulnerability in the conviction such as would enliven a case for a grant of leave to appeal for present purposes.

When invited to approach the matter a little more broadly, more relevantly to an application for leave to appeal such as is before the Court, the applicant advanced such contentions as that the prosecution witnesses lied; that the Prosecutor strove to secure a conviction and so on.  Again, such matters could not advance a case for a grant of leave in a situation like this.

The applicant has separately sought the issue of subpoenas directed to the store manager and to the complainant's school principal.  That course should not be sanctioned.

I would refuse the application for the issue of subpoenas and I would refuse the application for leave to appeal.

JERRARD JA:  I agree.  I add only that the applicant did cross-examine the complainant before the Magistrate about the apparent inconsistencies in her description of what occurred between each of two statements which she had given to police and between at least one of those and the evidence that she gave before the Magistrate.

I also would dismiss the application.

MACKENZIE J:  I agree with what has been said by the Chief Justice and Justice Jerrard and with the orders proposed.

THE CHIEF JUSTICE:  The orders are as I have indicated.

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