The Queen v Stephens[1998] QCA 140

COURT OF APPEAL

FITZGERALD P

DAVIES JA

FRYBERG J

CA No 462 of 1997

THE QUEEN

v.

STEPHENS, Gary Robert  Applicant

BRISBANE

DATE 24/02/98

JUDGMENT

FRYBERG J:  The applicant was convicted after a trial in the District Court at Maryborough of one count of burglary and two of assault occasioning bodily harm.  On 10 October 1997 he was sentenced to imprisonment for three years. 

He did not appeal within the time prescribed for appeals, but there is before the Court an application for an extension of time in which to appeal.  That application was received by the Registrar on 15 December 1997 and, on the same day, the applicant filed a notice of appeal against conviction.  However, he has filed no material to explain why his appeal was not lodged within time.

Before us the applicant was not represented.  In addressing the Court he stated that the reason why he did not appeal in time was that his solicitor had apparently indicated to him that he had no basis for an appeal.  He said that he was subsequently told by an inmate at the Arthur Gorrie Centre that he could appeal himself and that he lodged an application for legal aid within a week of being told that fact.

There seems to have been some delay in his dealings with legal aid but, in due course, they prepared the application which is now before the Court and it was apparently received for lodgment with the Court at the remand centre on 25 November 1997.  The applicant told us that he was not seeking a new trial but rather that he wanted us to consider the evidence for ourselves. 

The Crown case was that the applicant, together with two youths named L and Bain, invaded the victims' home and beat the occupants with sticks.  The complainant Balkin knew L and Bain but did not know the applicant.  Although the attackers had worn shirts with hoods, Balkin gave evidence that at one point he saw the face of one of them.  It came out in cross-examination that some days later he saw the applicant in a car with L.  He thought he recognised the applicant as the intruder although he was not 100 per cent positive.

The Crown called Bain as a witness.  He had already pleaded guilty to the offence and had been dealt with.  He was 17 years old.  He said that he met the applicant through L, who was 14 years old, two days before the offence.  He said that on the night in question L planned the assault on the complainant and that he and the applicant, who was 28, joined in the offences.

The applicant signed a confession written in the investigating police officer's notebook. 

After a voir dire that confession was admitted into evidence.  The applicant claimed that he had been tricked into signing that confession.  Evidence was given by the police that there had been two interviews held between them and the applicant.

The first on 18 February 1997 was an interview at which the applicant denied any involvement in the offence and stated that he was in New South Wales at the time.  He offered as corroboration for this the assertion that he had used an automatic teller machine in that State.  He claimed that he returned to Queensland on a Greyhound Pioneer bus on 31 January 1997. 

The police gave evidence that they had received a tip off concerning a black bong at the applicant's house, though it seems this evidence was given in cross-examination.  Nothing was found at the house and the applicant was not arrested on the occasion of that interview.  Two days later, however, he was arrested.

While Detective Smith was fingerprinting him in the watch-house he said the applicant stated that he wished to make a statement.  He had declined a video recording.  Another policeman was called, the applicant was warned and Detective Smith wrote what the applicant dictated.  The confession reads as follows:

"I Gary Robert Stephens, date of birth 16 July '69, do not wish to take part in an electronic interview but I wish it to be on record the reason why I went to Gary Balkin's house on 9 January.  I got in through the kitchen window and assaulted Gary Balkin because he told some friends of Lyn and Bill L that I was taking a 14 year old girl over the border and I didn't want shit on my name."

That was signed and a second signature appeared below a series of questions designed to provide evidence that the statement had not been made under duress. 

Both the applicant and L gave evidence at the trial denying any involvement in the offences.  The applicant testified that he went to New South Wales to visit his sister some three weeks before the offences and that he was in Sydney on the day they occurred.

He admitted that he had lied to Detective Smith about catching a bus back to Queensland on 21 January but denied that he had made a signed confession.  He said, in his evidence, that he thought he was signing an acknowledgment that no drug utensil had been found at his house.  He did not read what was written, he said.  He did not know either L or Bain at the time of the offence.  This was contrary to the evidence of both L and Bain. 

The applicant's sister and her friend testified that the applicant returned to Queensland with them on 10 January 1997, the day after the offences.  However, in her statement to police she had dated the trip as about a week after New Year.  She asserted that she had subsequently checked the date in a diary but did not produce the diary at the trial.

Before this Court, the applicant repeated the matters which he raised in his evidence.  He submitted that there were no fingerprints to place him at the scene or on the alleged weapon.  He complained that the police had refused him a line-up when he requested it.

He alleged that some of the jury were pressured into giving a guilty verdict but there was no evidence of this.  He submitted there were inconsistencies in the prosecution evidence relating to dates.  He submitted that the police evidence regarding the confession was false. 

It was essentially a question for the jury to decide whom to believe.  Plainly, they believed the Crown case and disbelieved that of the applicant. 

Even if leave to appeal were granted, it would not be open to this Court to interfere.  The points raised by the applicant in both his outline originally filed and in the supplementary outline which he gave us today, depend upon a view of the witnesses.

In these circumstances, it would be pointless to require the applicant to put evidence before us to explain his delay in making this application.  The appeal would, in any event, even if leave to appeal were granted, have to be dismissed.  For that reason the application should be refused.

THE PRESIDENT:  I agree.  I could find nothing in the material placed before us by the applicant or his arguments to this Court to support his assertions that the verdict was unsafe and unsatisfactory or that the jury's decision was against the weight of evidence.

DAVIES JA:  I also agree.

THE PRESIDENT:  The application is refused.