The Queen v S

[2001] QCA 532

[2001] QCA 532

COURT OF APPEAL

McPHERSON JA
THOMAS JA
MULLINS J

CA No 178 of 2001

THE QUEEN

v.

S   Applicant

BRISBANE

..DATE 26/11/2001

JUDGMENT

MULLINS J:  This is an application by S for extension of time within which to appeal against conviction.  The applicant was found guilty of one count of rape on 23 June 2001.  He was sentenced to three years imprisonment.  The application for extension of time was filed on 28 June 2001 - a little over four months late.  The ground of appeal set out in the notice of appeal which accompanied the application is that the conviction was unsafe and unsatisfactory and contrary to law.

The application for extension of time first came on for hearing on 25 September 2001.  At that hearing the applicant tendered a document entitled "Issues that were not brought up at trial".  That document raised a number of matters which were not otherwise covered in the material before the Court.  As a result, the application for extension of time was adjourned to enable more material to be placed before the Court indicating whether or not there were any merits in the issues raised by the applicant in the document that was tendered on that day and Legal Aid was requested to assist with the inquiries.

It is apparent from the reasons for judgment of the Court given on 25 September 2001 that the issue set out in paragraph 2 of the applicant's document was of concern to the Court.  Paragraph 2 stated:

"The complainant visited a mutual friend approximately one month after the alleged offence and told them that 'He didn't rape me, I just wanted to get rid of him.'  This person is willing to come forward with a detailed statement confirming this."

The Senior Deputy Registrar of the Court of Appeal has received a letter from Legal Aid Queensland dated 15 October 2001 which relevantly states:

"At the request of the Court we advise that we have made investigations with regard to issues raised by the applicant.  We further advise that we were unable to obtain any information which may have assisted the applicant in this matter."

At the commencement of the hearing today the applicant sought leave to file an affidavit of Stephen Barry Hay sworn on 21 November 2001 stating that a mutual acquaintance had told him that the complainant had told the mutual acquaintance that the applicant would not get the kids and that she had set him up on a rape charge.  That affidavit was not admitted.

The circumstances of the offence were that the applicant and the complainant had been married for approximately five years. They had separated for about one month.  There were three children of the relationship who were living with the complainant.  On 18 July 1999 the applicant returned to the matrimonial home to have access to the children.  The applicant found that the children had been cared for by the neighbour's children overnight, as the complainant had spent the night away from home with a male acquaintance.  That made the applicant angry.  The applicant asked to speak to the complainant in private in the bedroom.  That is when the offence occurred.  The applicant underwent a record of interview.  He admitted to having intercourse.  The issues for trial were whether there was consent of the complainant and whether the Crown had negatived beyond reasonable doubt that the applicant had a reasonable and honest belief that the complainant was consenting to the act of intercourse.

The complainant gave evidence at the trial.  The complainant stated that she had bitten the applicant on the arm.  The police noted a red mark on the applicant's arm.  During the record of interview the police officer pointed the mark out to the applicant, there was no explanation put forward and the applicant denied being bitten. 

During the trial police gave evidence of observing the red mark.  There was no medical evidence given, however, about how long it had been there and the learned trial Judge directed the jury that the failure of the prosecution to call a doctor as a material witness may lead to the inference that the doctor would not have assisted the Crown case on the red mark.

The applicant seeks to rely on the mark on his arm being referred to as a bite "quite often" to the jury.  During the course of the summing-up the trial Judge usually referred to the bite in terms of being an allegation by the complainant or otherwise referred to it as "the mark" or "red mark".  The learned trial Judge fairly put the respective cases in relation to the alleged bite or mark.  There was only one occasion during the summing-up when the mark was referred to as the bite mark without reference being made to that being the allegation.  This was at page 117 of the transcript in the words preceding the Jones v. Dunkel direction about the failure of the prosecution to call the examining doctor to give medical evidence in respect of the mark.  The introductory words were:

"Now, in this case, in relation to the bite mark, there was no medical evidence called in the case.  You have heard the evidence of the complainant and the police officer what he observed about the red mark but in the absence of the nature of the blemish..."

The slip of referring to the mark as the "bite" mark was immediately rectified by referring to it as "red mark" and "blemish".  In view of how clearly the learned trial Judge expressed the respective cases in relation to that mark, no miscarriage of justice can be attributed to that slip in how the mark was referred to. 

There was evidence of fresh complaint and the complainant's distressed condition after the intercourse.  The complainant's evidence and her credit on whether or not she consented to the intercourse were integral to the jury's consideration of the issue of consent.  This is obviously a matter where the jury would have a distinct advantage in seeing, hearing and assessing the complainant.  No other error is disclosed by perusal of the summing-up of the learned trial Judge.

The applicant now seeks to impugn the decision that was taken by him on advice from counsel at the trial not to give evidence.  The applicant's record of interview was in evidence which included the applicant's explanations given to the police as to why he thought the complainant was consenting to the intercourse and his recollection of what conversation and actions occurred at the time.  In those circumstances there is no prospect of the applicant being able to raise an arguable case of flagrant incompetence on behalf of his counsel. 

On the basis of the materials that are before the Court for the purpose of deciding the application for extension of time, it could not be considered that a potential appeal is viable.  The applicant does provide some explanation for the delay in filing a notice of appeal.  He states that he was unaware of the rights and avenues of appeal; his incarceration was a traumatic event and it took him some time to settle into life in prison; his energies were directed at Family Court proceedings to secure contact with his children and, as he was self represented in those proceedings, that drained the resources that were available to him.

Even if these explanations are accepted the interests of justice do not favour granting the extension.  I would therefore refuse the application.

McPHERSON JA:  I agree.

THOMAS JA:  I agree.

McPHERSON JA:  The order of the Court is that the application to extend the time within which to appeal against conviction is refused.

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