R v MBC [2008] QCA 263

Judgment (43 paragraphs)

[1]

P W Skewes & Dempster (Longreach) for the applicant

[2]

Director of Public Prosecutions (Queensland) for the respondent

[3]

**[1] KEANE JA: On 19 July 2007 the applicant was convicted upon the verdict of a jury of six counts of sexual abuse of his daughter when she was between 13 and

[4]

16 years old. These offences consisted of three counts of indecent treatment of a child under 16 who is a lineal descendant, one count of rape, and one count of maintaining an unlawful sexual relationship. The applicant was found to be not guilty on a second count of rape, but was found guilty on the alternative charge of indecent dealing. The offences occurred between 26 October 2002 and 28 October 2005.

[5]

[2] On 20 July 2007 the applicant was sentenced to five years imprisonment in respect of the maintaining count and to lesser concurrent terms of imprisonment in respect of the other offences.

[6]

[3] On 17 August 2007 the applicant filed a notice of appeal relating to his convictions and an application for leave to appeal against the sentences imposed on him. On

[7]

30 January 2008 he filed a notice of abandonment of the appeal and application. On 7 May 2008 the applicant filed an application to set aside his abandonment of the appeal and application.**

[8]

Setting aside the abandonment of an application or an appeal

[9]

**[4] Under r 69(4) and r 70(3) of the Criminal Practice Rules 1999 (Qld) respectively, the court may set aside the abandonment of an application or an appeal and reinstate the application or appeal "if the court considers it necessary in the interests of justice".

[10]

[5] This Court's decisions in R v Marriner[1] and R v BBI[2] suggest that where an appeal has been abandoned, whether its reinstatement is necessary in the interests of justice requires a satisfactory explanation for the applicant's change of mind. The rules which regulate the bringing of appeals within prescribed time limits serve the important purpose of bringing finality to litigation; they should not be set at nought save for good reason. The abandonment of an application or an appeal brings the process of litigation to an end: that process should not be re-enlivened without good reason.

[11]

[6] It must be borne in mind that an abandonment of an appeal not only brings the process of litigation to an end; it is also apt to be regarded as acknowledgment that the party who had appealed has no real ground to impugn the justice of his or her conviction or sentence. The decisions in R v Marriner and R v BBI confirm that the interests of justice include what might be thought to be the paramount interest in ensuring that citizens are not wrongly convicted or excessively punished by the processes of the criminal law. Whether the interests of justice make it necessary to allow the reinstatement of an application or an appeal requires a consideration of the ultimate prospects of success of the application or the appeal.[3]

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[7] I turn to consider in turn these aspects of the interests of justice as they apply to the circumstances of the present case.**

[13]

The applicant's explanation for the abandonment of his application and appeal

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**[8] The applicant's notice of 17 August 2007 was filed on his behalf by his solicitors. As a result of financial difficulties, he sought assistance from Legal Aid Queensland which declined his application. According to the applicant, he was thereafter assisted in relation to his application and appeal by a fellow prisoner. The applicant says that he abandoned his appeal when this fellow prisoner ceased assisting him.

[15]

[9] According to the applicant, on 17 March 2008 the solicitor who had acted for the applicant at his trial advised him that Counsel may be prepared to act for the applicant pro bono publico. This offer evidently renewed the applicant's interest in pursuing his appeal and application; and this renewed interest culminated in the application filed on 7 May 2008. The applicant was represented by Mr Mumford of Counsel on the hearing of the application in this Court.

[16]

[10] Although the applicant has put forward no explanation for the delay which ensued between 17 March 2008 and 7 May 2008 when his present application was filed, it is understandable that he found the prospect of representing himself a daunting one and that his abandonment of his appeal and application is to be understood in that light. In these circumstances, it is preferable to consider the applicant's prospects of success as having the greater bearing on the outcome of the present application.**

[17]

The prospects of success of the appeal and application for leave to appeal against sentence

[18]

[11] The grounds of appeal in relation to the applicant's convictions which he would seek to agitate if the present application were to be granted assert a number of errors at trial. The first is an error in relation to the admission of a confession to police said to have been elicited by a threat or inducement; the second asserted error relates to the admission of evidence from a witness, Ms P, who gave evidence of the applicant's sexual interest in the complainant; and the third error concerns failure of the learned trial judge to discharge the jury as a result of hearsay evidence from that witness that the applicant had said that the complainant "wears G-strings" and that she "masturbates". It is also said that the learned sentencing judge erred in failing to direct the jury to disregard these hearsay statements. None of these assertions have any real prospect of leading to the setting aside of the convictions. I shall deal with them in turn.

[19]

**[12] The applicant made admissions in relation to the matters alleged by the complainant in the course of an interview with Detective Palmer on 9 February 2006. According to the evidence given by the applicant on the voire dire at trial, the interview commenced shortly after Detective Palmer said to him: "If you plead guilty it would be better than you saying not guilty."

[20]

[13] The applicant said that what Detective Palmer said induced him to give the interview because he "wanted to make sure that the kids would stay with [his wife]."

[21]

[14] There was a conflict of evidence between the applicant and the police officer as to the circumstances in which the confession on which the Crown relied was made. This conflict of testimony was resolved on the voire dire by the learned trial judge. The learned trial judge ruled that it was unlikely that Detective Palmer had made the statement attributed to him. His Honour went on to say: "However, I am much more confident about another thing, and that is to say if the remarks were made, then they had no effect of any substance on [the applicant] at the time."

[22]

[15] The applicant argues that the learned trial judge failed to have regard to the evidence of Detective Palmer that he had taken the applicant into the "CIB room" for a brief period of time prior to the commencement of the interview. But the fact that it was common ground that Detective Palmer had the opportunity to make the disputed statement is not an argument which could justify this Court in coming to a different view from the trial judge on the contest of credibility between witnesses.

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[16] The applicant also argues that his Honour erred in holding that the statement, if made, had no effect upon the applicant as an inducement. It is said that his Honour's view was not justifiable. For my part, I share the difficulty, evidently experienced by the learned trial judge, in seeing how the statement allegedly made by Detective Palmer could have had any bearing upon the applicant's assessment of whether or not his children were likely to remain with his wife.

[24]

[17] To the extent that the applicant complains that the learned trial judge did not give reasons for his ruling, it is apparent that the ruling was based on his Honour's assessment of the credibility of the witnesses. It is difficult to see that much more could have sensibly been said, save that in the recorded interview the applicant himself acknowledged that no inducement had been held out to him to give the interview, and that the motivation said to have been induced in the applicant by Detective Palmer's statement is inherently unconvincing. These points were obvious. That the basis for his Honour's ruling was readily apparent is abundantly clear from the circumstance that no request for further reasons was made at the trial.

[25]

[18] Accordingly, there is no reason to consider that this evidence was wrongly admitted. The applicant advances nothing which is apt to persuade this Court to conclude that the trial judge erred in preferring the evidence of the police officer to that of the applicant.**

[26]

**[19] The evidence of Ms P concerned the conduct of the applicant towards the complainant on an unspecified number of social occasions. Ms P said that the applicant would either brush up close to the complainant, or touch her or hit her on the bottom. In this regard, he appeared to treat her differently from "the other girls". Ms P also gave evidence of an occasion on which the complainant was eating a battered sav and the applicant said: "Oh yeah, baby yeah. Oh that looks good baby."

[27]

[20] The evidence of Ms P was admissible to ensure that the jury did not regard the complainant's evidence as inherently unlikely having regard to the relationship of father and daughter between the applicant and the complainant.[4] The probative value of this evidence was a question for the jury, and there is no suggestion that the jury were not properly instructed as to the use which they might legitimately make of this evidence.**

[28]

[21] The hearsay evidence from Ms P of statements allegedly made by the applicant to another person about the complainant did not lead to an application for a new trial by the applicant's Counsel at trial. Nor did the applicant's trial Counsel seek a direction to the jury that this evidence should be disregarded. Both these decisions by the applicant's trial Counsel are explicable as reasonable forensic decisions on the part of Counsel. A retrial may have resulted in the evidence being adduced in admissible form. The absence of a request that the trial judge direct the jury to disregard the hearsay may be explicable on the basis that no reference to the evidence was preferable to a reminder of that evidence. Accordingly, this complaint does not suggest that any miscarriage of justice has occurred.

[29]

[22] Finally, it must also be said that, so far as the interests of justice are concerned, it is important to note that it is not suggested that the admissions made by the applicant in his interview with Detective Palmer overstated his guilt in any way. That being so, there is no reason for concern that an innocent man has wrongly been convicted. That is itself a sufficient basis to refuse the application in relation to the abandonment of the appeal against conviction.

[30]

**[23] At the hearing of the application, the complaint about the severity of the sentence was not pressed. In my respectful opinion, there was no merit in the complaint in relation to sentence.

[31]

[24] The offences of which the applicant was convicted were such that an effective sentence of five years imprisonment could not be regarded as excessive even taking into account the absence of violence on the part of the applicant. Reference may be made in this regard to the range of sentences discussed by this Court in R v Conway; ex parte A-G (Qld).[5]

[32]

[25] The applicant had maintained an unlawful sexual relationship with his daughter for more than two and a half years. In the course of this relationship, he committed a number of offences including digital rape and rubbing his penis against her genitals. There is no prospect at all that this Court would conclude that the sentence imposed in this case was excessive, bearing in mind that this was a case of prolonged sexual abuse of the complainant by her father who was not entitled to any discount for a plea of guilty.**

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**[26] The applicant has failed to show that it is in the interests of justice that the notice of abandonment should be set aside.

[34]

[28] MUIR JA: I agree with the reasons of Keane JA and the order he proposes.

[35]

[29] DOUGLAS J: I agree with the reasons of Keane JA and the order proposed by his Honour.

[36]

[30] I wish only to say a little more about the reasons provided by the learned trial judge for refusing to rule out the record of interview given by the applicant on 9 February 2006 with Detective Palmer. Although brief they were cogent. He directed himself correctly on the law, expressed the conclusion that it was unlikely that the detective had made the statement attributed to him and, after expressing his confidence that, even if the remarks were made, they had no effect of any substance on the applicant at the time, buttressed that conclusion by referring to the fact the applicant had made similar admissions to another person a month later at a time when he knew the children were with their mother.

[37]

"It is difficult to see how the admissions could have been helpful to her [the mother] to gain custody. Even if [the applicant] did believe that because of some process of thinking that he used, then it was not because of any remarks made by the police officer. He does not assert, of course, that Mr Palmer said anything like there being some advantage to the parents in the recovery of the children if he did plead guilty to any offence."

[38]

[32] That reasoning is persuasive and provides no ground for doubting his Honour's conclusion about the admissibility of that very significant evidence of the applicant's guilt.

[39]

[1] [2006] QCA 32; [2007] 1 Qd R 179 at 183 - 184 [17] - [21].

[40]

[2] [2007] QCA 376 at [5].

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[3] R v Marriner [2006] QCA 32; [2007] 1 Qd R 179 at 184 [22]; R v BBI [2007] QCA 376 at [5].

[42]

[4] See HML v The Queen [2008] HCA 16; (2008) 82 ALJR 723 at 819 - 825 [491] - [513].

[43]

[5] [2002] QCA 507.