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R v Miller


[2002] QCA 56





CA No 341 of 2001





DATE 01/03/2002


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 fact that he was found guilty.

The decision that was arrived at was, however, plainly a tactical one and it was reached after considering the options open to the appellant in the light of the advice he was given.  In those circumstances, it could not be said that there was any suggestion that counsel was flagrantly incompetent or anything of that nature.  Consequently, we cannot give effect to his preference now for having wished, after the event, to have given evidence. 

The second point he raises is that he has a prominent distinguishing mark on his upper body, that the complainant should have seen, but that she did not mention in her evidence.  He had this mark at the time of his arrest, and there is said to be a photograph of him that ought to display it.  There was a photograph taken on the day of his arrest and although he has not seen it, he believes the police would have it and that it would show the mark.  It is, however, quite unclear whether or not the girl saw the mark or ought to have seen it.  She was lying on her stomach in the bottom of the pool in shallow water and she would have seen the mark only if the appellant was sufficiently upright for her to see it clearly. 

In any event, she was not cross-examined about the matter at the trial, and it does not seem to have been regarded by anyone at the time as sufficiently relevant to be put to the complainant or to be used for the purpose of the appellant's defence on that occasion.  The result is, again, that the evidence was available to him at the time, but the use of it was probably more or less foreclosed by the decision of the appellant not to give evidence himself.

Finally, the other point that he makes is that he had a four inch long goatee beard on the day in question, whereas the complainant described the man who touched her as having a "really short beard".  The appellant claims that the police photograph would show the state of the beard at the time.

It does not appear that the photograph was sought by counsel at the trial.  If he had put it in evidence, of course, he would have lost the right of last address, which counsel seems to have regarded as fairly critical to the defence of the accused.  It may, in any event, be that the jury reached the conclusion that it would have been easy to be mistaken about the precise length of a beard when people are in the water and the beard naturally becomes wet.

However it may be, the trial Judge addressed the issue of identification at some length and in considerable detail.  His summing-up on the point covers some five pages or more. He gave the jury the direction that there was a special need for caution before convicting a person in reliance on the correctness of an identification of the kind that was before them in evidence in this case.

He went in detail into the evidence in support of and against the identification of Miller.  One passage in his summing-up, to which I will refer, is as follows:

"The evidence capable of supporting a visual identification of the accused person in this case is as follows - Samantha pointed out, that is identified, the accused a matter of minutes after the offence occurred. She said this man had swung round her twice before the touching occurred and she saw his face on those occasions as well.  Her observation was made in broad daylight, in the middle of the afternoon, on a November day.  Samantha pointed the man out to her mother and to Mr S……..  Mr S……. says he then kept this man under his observation constantly and this is the man who the police took out of the pool and who now appears before you."

His Honour, after saying that, went on to direct the jury, as I said, in some detail, on deficiencies in the evidence, which might lead them to have a doubt about whether the appellant was correctly identified by the complainant.  In the end, the question was one for the jury and, having considered it, as they would have done, in the light of the Judge's directions, they arrived at their verdict of guilty.

The Judge had cautioned the jury not to draw adverse inferences from the fact that the appellant did not give evidence and indeed, he did everything that the law requires in the direction of a jury in a case like this.  In the result, the matter seems to me to be simply one in which the jury had to reach a conclusion and they reached a verdict which was unfavourable to the accused.

It is not within our field of jurisdiction to interfere with a conviction of that kind.  The appellant does not claim there were any other special circumstances that called for the intervention of this Court.  He says he was prepared to give evidence at the trial, but on advice, chose not to do so.

He knew that the photograph the police took was available at the trial, and there is little doubt that with some effort, it could have been obtained.  He did not, he says, appeal strictly within time, because his trial counsel had advised him that the appeal would not succeed.  This is not a case in which there is any recognisable reason for admitting further evidence on the appeal.

The material that the appellant now wishes to place before the Court consists of his own testimony which he elected not to give at the hearing, and the evidence about the distinctive mark on his body.  Both were available at the time of the trial and cannot, by any standard, be considered fresh evidence.

The issue about his beard was canvassed at the hearing.  He is therefore now in a position, although no doubt genuinely believing that he made the wrong decision on the advice he was given, of regretting not having given evidence.  But that is not a sufficient reason, according to the principles on which we act, for ordering a new trial to take place.

I would accordingly refuse the application to extend time within which to appeal against the conviction.

WILLIAMS JA:  I agree.

BYRNE J:  I agree.

McPHERSON JA:  The order is that the application for the extension of time is refused.


Editorial Notes

  • Published Case Name:

    R v Miller

  • Shortened Case Name:

    R v Miller

  • MNC:

    [2002] QCA 56

  • Court:


  • Judge(s):

    McPherson JA, Williams JA, Byrne J

  • Date:

    01 Mar 2002

Litigation History

EventCitation or FileDateNotes
Primary Judgment-23 Oct 2001Date of conviction.
Appeal Determined (QCA)[2002] QCA 5601 Mar 2002Application for an extension of time for leave to appeal against conviction refused: McPherson JA, Williams JA and Byrne J.

Appeal Status

Appeal Determined (QCA)

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