_R v DAQ_

Judgment (29 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] KEANE JA: On 18 December 2006 the applicant was convicted upon the verdict of a jury of one count of indecently dealing with a child under 16 years of age, under 12 years of age and under his care, and two counts of rape. These offences were committed upon a female child, J, who was then 10 years and seven weeks old.

[3]

[2] The applicant was also convicted of one count of indecently dealing with a child under 16 years of age under his care. The victim of this offence was his 12 year old stepdaughter, T.

[4]

[3] The offences were committed during the night of 22 July 2003 while J was "sleeping over" with T at the applicant's house. Both girls gave evidence that the applicant entered T's bedroom a number of times during the night and interfered with them.

[5]

[4] The applicant was acquitted of two other counts of rape allegedly committed on

[6]

J and one further count of indecently dealing with T.

[7]

[5] The applicant was sentenced to two and a half years imprisonment in respect of the two offences of rape and to shorter concurrent terms in respect of the other offences. A period of 194 days was declared to be time served as pre-sentence custody. He was eligible for parole on 7 April 2007.

[8]

[6] On 3 August 2007 the applicant applied for an extension of time in which to appeal against his convictions.

[9]

[7] Evidently the applicant made a deliberate decision not to appeal against his convictions, and decided to seek to appeal only after the bulk of his sentence had been served and well after he had become eligible for parole under the terms of his sentence. By way of explanation by the applicant for the delay in seeking to appeal against the convictions, it was stated in the grounds of his application for an extension of time that he:

[10]

"did not want to appeal the conviction on the grounds that he had been before the court for a period of over 3 years and wanted to get on with his life ... as a result of his conviction he has been served with a subsection 501(2) notice of the Migration Act [sic] to cancel his Subclass 444 visa on the grounds of the conviction".

[11]

[8] The approach to an application for an extension of time in which to appeal was discussed by this Court in R v Tait:[1]

[12]

"[T]he Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. That may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant's appeal, and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay, it being much easier to excuse a short than a long delay."

[13]

[9] It is apparent that this passage does not purport to state exhaustively the considerations relevant to the determination of an application for an extension of time. By way of example of another relevant consideration, one may say that, if it appeared that an application for an extension was an abuse of the process of the Court, in that the application was made for a collateral and improper purpose,[2] the Court would dismiss such an application out of hand for that reason alone. In this case, there was some suggestion that the application for the extension of time to appeal was made only to delay the process of deportation of the applicant which was set in motion by the fact of his conviction. In the event, it is not necessary for this Court to determine whether this suggestion was correct in order to determine the present application. That is because of the significance of the lengthy delay which has occurred, and the reason for that delay.

[14]

[10] Delay in making an application is relevant to the exercise of the discretionary power to grant an extension of time because delay detracts from the public interest in the finality of litigation. Indeed, it is the public interest in this regard that affords the raison d'etre of statutory time limits on appeals. One can readily understand that statutory time limitations on appeals should yield to the concern that the judicial process may have operated imperfectly in a particular case where there is no real prejudice to the public interest in the finality of litigation. For that reason, an applicant for an extension of time who has failed to observe statutory time limits by reason of ignorance or inadvertence or even incompetence, and who is obliged, because of a short period of unintentional delay, to seek an extension of time in order to institute an appeal, can expect to be given the benefit of an extension where there is an arguable case that an appeal may succeed.[3]

[15]

[11] On the other hand, where an applicant has made a deliberate decision not to appeal, and has changed his mind in that regard only after serving the bulk of his sentence, it is understandable that the discretion to allow an appeal to proceed should be exercised in favour of an applicant only where the applicant presents a compelling demonstration of a serious injustice which can be corrected only on appeal.

[16]

[12] In the present case, the applicant deliberately adhered to his decision to accept the verdict of the jury until the bulk of his sentence had been served and he had become eligible for parole. The public interest in the finality of the processes of criminal justice warrants the rejection of so belated an attempt to call that process into question unless there is a compelling argument that a miscarriage of justice involving the conviction of an innocent person had occurred.

[17]

[13] The applicant's argument in this regard rises no higher than the suggestion that this Court might take a different view of the credibility of the complainants from that which was taken by the jury. This argument shows scant regard for the primacy of the jury as the constitutional tribunal of fact. In any event, it is an argument which has no real prospect of success, bearing in mind that T and J complained to T's mother of the applicant's conduct on the morning following the incidents in question, and that, notwithstanding some differences of recollection, the evidence of each complainant afforded material support for the evidence of the other.

[18]

[14] The other arguments which the applicant would seek to agitate on appeal if an extension were granted concern procedural complaints about the processes of investigation and the course of the trial. None of these matters are apt to raise a concern that an innocent man has been wrongly convicted.

[19]

[15] In my opinion, no good reason has been shown to grant the extension of time sought by the applicant. The application should be refused.

[20]

[16] FRASER JA: I agree with the reasons of Keane JA and the order proposed by his Honour.

[21]

[17] MACKENZIE AJA: I agree, for the reasons given by Keane JA, that the discretion to extend the time within which to appeal against conviction should not be exercised in the applicant's favour. I wish only to add some further comments about the merits of the proposed grounds.

[22]

[18] In my view there is no reason to think that an appeal against conviction would be viable or that a miscarriage of justice involving conviction of an innocent man might have occurred. The proposed grounds of appeal fell into three categories the first and second of which overlap and merge into one another at certain points.

[23]

[19] In the first category, there are several grounds relating, with more or less directness, to the issue of whether the verdicts were unsafe and unsatisfactory or unreasonable. They rely heavily on persuading this Court to substitute its own view of the credibility of the complainants for the view taken by the jury. That is necessarily a difficult task. There were some variations in the complainants' versions of events and some confusion concerning the circumstances of the offences upon which the verdicts of acquittal were entered. That, in all probability, provides the rational explanation for the acquittal on some counts and conviction on others. In my view, the state of the evidence was not such as to create concern over its overall quality. Further, the case was one where timely complaints were made by the complainants of sexual interference by the applicant. Identification was not attended by the difficulties that sometimes arise, because the complainants were sleeping in the same bed and one of them was the stepdaughter of the applicant. The jury could have properly reached the conclusions it reached. There was no real prospect of these grounds succeeding.

[24]

[20] In the second category, there are a number of criticisms of the learned trial judge's failure to give directions or adequate directions to the jury on matters upon which directions or redirections were not sought at trial. That is not, of course, fatal, but some of the directions which, it is said, should have been given are not of a kind upon which a direction in the terms sought was appropriate. Those that do not belong to that category appear to have no substance.

[25]

[21] The remaining ground complains that the learned trial judge inappropriately stopped the applicant's counsel from cross-examining a police witness. A reading of the relevant passages satisfies me that, far from that, the learned trial judge was justified in taking that course, for reasons that are apparent in the transcript.

[26]

[22] I agree with the order proposed by Keane JA.

[27]

[1] [1998] QCA 304; [1999] 2 Qd R 667 at 668 [5].

[28]

[2] Cf Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 522.

[29]

[3] Cf R v Lewis [2006] QCA 121 at [3]; R v GV [2006] QCA 394 at [3].