The Queen v Wolfven[1997] QCA 422

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 376 of 1997

Brisbane

THE QUEEN

v.

ERIC LEE WOLFVEN

(Applicant)

Macrossan C.J.

Pincus J.A.

McPherson J.A.

Judgment delivered 28 November 1997

Judgment of the Court

APPLICATION TO EXTEND TIME REFUSED.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 28 November 1997

This is an application to extend the time in which to apply for leave to appeal against a sentence imposed on the applicant in the District Court. The sentence was that the applicant be admitted to probation for a period of 3 years and that he be ordered to perform 120 hours of community service.  A conviction was recorded.  The date of conviction and sentence was 5 September 1997, but the notice of appeal is dated 5 October 1997, which means it was some five days late.  The notice of appeal shows it is not an appeal against conviction, although, judging by what was said by the applicant, who appeared in person at the hearing before this Court, his principal complaint is directed to the fact that a conviction was recorded.

The offence with which the applicant was charged was a single count of indecently dealing with a girl under the age of 12 years early in 1993.  When arraigned on that charge in the District Court he pleaded guilty.  His counsel Mr Smid at first thought the applicant might have said Not guilty.  He was thereupon arraigned again, and clearly pleaded guilty.  Counsel for the Crown, who was Mr Copley, then proceeded to recite the facts on which the prosecution relied.

The complainant was born on 20 August 1985, and so would have been only about 7 years old at the time of the offence.  She was about 11 at the date when the applicant was charged.  She lived with her mother and her father, who was an acquaintance of the applicant.  On the occasion in question in 1993, the two men had been drinking together at a local club, where he and the children had all been for dinner.  The complainant, her two siblings, her father and the applicant then went back to the complainant’s home.  Her mother was at work that evening, and the children went to bed at about 8.30 or 9.00 p.m..

At the sentence hearing Mr Copley’s account of what happened was as follows:

“The complainant told the police in a section 93A video tape that one night when her mother had gone off to work, she was at home with her twin siblings, her father and the prisoner, Eric.  She thought she was in grade 3 at the time because she started grade 3 in 1993.  They had been down to The Gap RSL club to have dinner with her father and the prisoner.  They came home and the children went to bed.  She said she went off  to sleep pretty quickly about 8.30 or 9 o’clock because she was tired and it was a late night for her.

She thought - and there doesn’t seem to be any real basis for this - but she thought that it was one or two in the morning when the prisoner came into her room because the television was still on in the lounge room and a program called Rage was on.  She was asleep.  She woke up because the prisoner was kissing her stomach and she says that he said, ‘Am I annoying you’, and she said, ‘Yeah’.  And he said, ‘Do you want me to go away?’ And she said, ‘Yeah’.  And he went away.

She said that he was naked around - well, at least he had no clothes on so far as trousers or underwear were concerned.  She was quite clear on that and she said that he kissed her around the navel and she had no recollection or reason to believe that he’d touched her anywhere else.  After he left she had a look outside and her father was asleep in the lounge room, or in his bed rather, and she then went and slept in the room of her twin siblings for the remainder of the night.”

On the following morning, the girl complained to her mother about what had happened.  After the father learnt of it, he confronted the applicant, who said words to the effect that he “felt like a dog”, and wished it had never happened, adding that he had been away from his wife for a long time; it had been a while since he had been with a woman; and he had consumed a lot of liquor that night.  The father decided not to pursue the matter; but at some time, apparently much later, the incident was reported to the police.

In reciting these matters at the sentence hearing, Mr Copley also recounted what the applicant had said when questioned by the police.  It was as follows:

“His recollection of the incident was that she was lying in her bed and she didn’t have the covers on.  He went in there and he patted her bottom.  She woke up, he said, ‘And I said, oh, sorry’.   And she responded, ‘All right, Eric, see you’.  And then he left the room.  He claimed that he was en route to the toilet at the time when he saw her and she didn’t have covers on and that was what prompted him to go into the room, he claimed.

He said that she was wearing a T-shirt and underpants and he said that he put the covers upon her in exactly the same way as he did with the twin children because he went to their room first and covered them up, and then he went into this child’s room.  He had no reason, he said for touching the child’s bottom but he said he was as guilty as sin of doing that.  He said that he certainly touched the outside of her bottom on the outside of her underpants.  He denied kissing her at all, and he said he didn’t touch her on the stomach because she was lying on her stomach, and when she woke up when he touched her bottom he just put the covers up on her and he left.

He was asked what was going through his mind at the time and he said that she had a cute bum and he didn’t think at the time that he was doing the wrong thing; but he felt that in the days which followed that he might have been doing the wrong thing.  He claimed to be wearing clothes at the time and he said it could not be true that he wasn’t wearing any clothes.  He said he had nothing in mind other than to stroke - touch her bottom but, for some reason if that was all true, for some reason a few days later he said he felt dirty and wrong about it.”

Having given the applicant’s version of the incident, Mr Copley proceeded:

“So once again if this case had gone to trial the Crown would have been able to place before a jury evidence generally confirming, supporting or adding to the story that the complainant child had given.  There was a committal hearing held and that young child was cross-examined by Mr Jones of the Legal Aid Office ... The committal hearing was held.  Everybody was cross-examined and both charges were dealt with at the same committal and he was committed for trial to this Court.”

The reference to “both charges” is explained by the fact that, immediately before this sentence hearing the applicant, had been tried and acquitted of another charge.  A little later on at the hearing, counsel for the prosecution, in answer to a question from his Honour, confirmed that the girl had given evidence at the committal hearing, and had been cross-examined by counsel representing the applicant on that occasion.

If the applicant had intended to contest the prosecution version of events, one could reasonably have expected Mr Smid, who appeared for the applicant at the sentence hearing, to take issue with what had been said about the case that would have been relied on by the Crown.  Instead, he submitted that a sentence of probation and community service was appropriate, and he also submitted “naturally, and as “my formal submission”, as he put it, that no conviction should be recorded.  His Honour did not, in his sentencing remarks, set out the facts as he found them to be; but it is evident that he accepted and acted upon the version put forward by the Crown.  Otherwise there would have been little point in asking if the complainant had been cross-examined at committal.  The complainant had made a complaint to her mother at the first opportunity, and there was, as Mr Copley pointed out, some confirmation for her version in the applicant’s later admission when confronted by her father.

If the matter had gone to trial, it seems probable that the prosecution’s version of what happened, which Mr Copley said was that the applicant had kissed the girl on the stomach while he was standing naked in her room, would have been accepted by a jury; which is, no doubt why the applicant pleaded guilty.  It is most improbable that he would have pleaded to indecent assault if all he had done was to touch her on the outside of her underpants in the course of putting the covers over her, as he claimed to have done; or that, having done that, he would a few days later have felt “dirty and wrong” about having done it.  On his version of events, the most that could have been said was that he had committed a common assault which, although it involved touching a female child, would not for that reason alone, necessarily have been regarded as accompanied by a circumstance of aggravation.  See Cronin v. Hamilton-Smith [1958] Qd.R. 24, 38-39.  If no more than that had been involved, it would not have warranted such a lengthy period of probation or community service.  Indeed, it would be reasonable to expect that the applicant would not have pleaded, or have been advised to plead, guilty to anything more than common assault with or without a circumstance of aggravation.

In these circumstances, and although the delay in instituting the appeal is only five days, there is no realistic prospect of an appeal succeeding against the sentence imposed, and the application to extend time should be refused.