R v Whyte - [2002] QCA 56

[2002] QCA 56

COURT OF APPEAL

McPHERSON JA
WILLIAMS JA
BYRNE J

CA No 341 of 2001

THE QUEEN

ANDREW CHARLES MILLER (Applicant)

BRISBANE

..DATE 01/03/2002

JUDGMENT

McPHERSON JA: This is an application for an extension of time for leave to appeal against conviction. The form of application refers to sentence, but there is nothing in support of an application to appeal against sentence and the applicant, who has appeared before us in person, has assured us that his interest is only in having the conviction quashed.

The appellant before us is not legally represented, but has appeared in person. He was convicted on 23 October 2001 after a two day trial, of one count of indecently dealing with a child aged under 12. The appellant was 37 at the time and had no relevant prior convictions of the kind with which we would be concerned here.

He was sentenced to imprisonment for 12 months, suspended after three months, for an operational period of 18 months. He has completed his sentence, but wishes to challenge the conviction. The appeal was filed on 30 November 2001 and so was a week or so out of time. Although the explanation for that today is not very satisfactory, it is such a relatively short delay that we would think it necessary to look at the circumstances of the offence to see if there is any real prospect of success if the extension were to be granted.

The facts are that the appellant was swimming at the Southbank pool on the occasion in question. The complainant, who was then aged 10, was also swimming there. She saw a man swim around her twice. He then came up behind her and touched her between the legs, but over the top of her bathing suit. He said something to her about or to the effect that she must have thought that was pleasant.

She swam away and she told her mother. The girl evidently did not keep the man continuously in view while she swam away, but she pointed him out to her mother. The mother's boyfriend kept him in view while the mother found two police officers, and he was in due course arrested.

The appellant did not give evidence at the trial, but contested the charge on the ground that he was not the man who touched the complainant. As reasons for reviewing the jury verdict in this Court, the appellant argues that he did not give evidence because his lawyer thought it advantageous to the appellant at the trial if counsel had the final address to the jury.

The appellant says that he debated the issue with his counsel and then accepted his advice and agreed not to give evidence. He does not claim, in his submissions before us here, that he was overborne, but mainly, as I understand it, that the decision not to give evidence has not turned out to have been the correct one in the light of 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 Whyte

Details

AGLC: R v Whyte [2002] QCA 56
Case: [2002] QCA 56
Decision Date: 01/03/2002

CaseChat Overview and Summary

In the case of R v Whyte, the applicant, Andrew Charles Miller, sought an extension of time to appeal against his conviction for indecently dealing with a child under 12 years of age. Miller was convicted on October 23, 2001, after a two-day trial and was sentenced to imprisonment for 12 months, suspended after three months, with an operational period of 18 months. The appeal was filed on November 30, 2001, which was a week or so beyond the permissible time limit. The appellant did not give evidence at the trial but contested the charge, arguing that he was not the man who touched the complainant. The central issues for the court were whether there was any real prospect of success if the extension were to be granted and if the appeal was out of time.

The court found that the decision not to give evidence was a tactical one, reached after considering the options open to the appellant in light of the advice given. The court could not find any suggestion that counsel was flagrantly incompetent. The appellant's claim of having a distinguishing mark on his upper body that the complainant did not mention was also considered, but it was unclear whether the girl saw the mark or should have seen it. The court also noted that the evidence regarding the length of the appellant's beard was canvassed at the trial. The trial judge had addressed the issue of identification at length, cautioning the jury not to draw adverse inferences from the fact that the appellant did not give evidence. The court found that the material Miller wished to place before the court consisted of his own testimony and evidence about a distinctive mark on his body, both of which were available at the time of the trial and could not be considered fresh evidence. The court concluded that the appeal was out of time, and the application for an extension of time was refused.

The final order was that the application for the extension of time was refused.

Orders