R v AP[2003] QCA 445

SUPREME COURT OF QUEENSLAND

1. McMURDO P:  The applicant was convicted after a trial in the District Court at Townsville on 22 August 2002 of one count of maintaining an unlawful sexual relationship with a child under 16 with a circumstance of aggravation (count 1); one count of indecent dealing with a child under 12 under his care (count 2); one count of attempted rape (count 3) and one count of rape (count 4).  On the second day of the four day trial, the prosecution endorsed the indictment that it would not proceed further on count 5, unlawful carnal knowledge.

2. On 27 November 2002, the applicant, who was then self-represented, applied for an extension of time within which to appeal against his conviction. That application was refused on 10 December 2002: see R v A.^[1]  The applicant conducted his case on the basis that there was an oversight by his legal representatives in not lodging his appeal on time; the proposed ground of appeal concerned the learned trial judge’s directions relating to s 229B Criminal Code.  The court accepted that the delay was no fault of the applicant but the application was refused as the ground of appeal sought to be argued was without merit.

3. The applicant now brings a fresh application for an extension of time in which to appeal against conviction. Mr Devereaux, who appears for the applicant, seeks to argue quite different grounds of appeal, namely that the conviction for maintaining an unlawful sexual relationship (count 1), should be set aside because it was not commenced with the consent of a Crown Law officer; it was defective in that it alleged an offence not known to law; the differences between the consent and the charge brought are fundamental and cannot be cured by amendment; and the trials on counts 2, 3 and 4 miscarried as a result of the evidence led on count 1.

4. The respondent contends that there was a valid consent to prosecute and any defect in the indictment can and should be cured by amendment under s 572 Criminal Code (Qld).

5. The applicant also applies for leave to appeal against the effective sentence of 15 years imprisonment imposed on 13 December 2002.

The facts

6. The complainant became the foster child of the applicant when she was just three and a half years old and he was the only father figure she knew. DNA evidence established that the applicant was the father of the complainant’s child born when the complainant was only 14½ years old. The complainant gave evidence that in 1985 when she was three and a half years old he procured her to masturbate him when her foster-mother was gambling at the Casino. The applicant’s abhorrent conduct progressed to mutual masturbation until he ejaculated. The applicant continued to abuse his foster-daughter in a cubby-house which he set up at the local dump. When she was ten years old, he made her remove her clothes, rubbed his penis between her legs and digitally penetrated her (count 2). When she was about 11 years old, he held her down, covered her mouth and attempted to penetrate her vagina with his penis (count 3). He inserted fingers into her vagina, masturbated himself and ejaculated on her body. The applicant penetrated the complainant with his penis taking her virginity when she was 14 years old. Episodes of penile-vaginal rape followed. The charged act of rape (count 4) related to the act of intercourse leading to the complainant becoming pregnant to the applicant. After the child was born, the applicant had consensual sexual intercourse with her until her 16th birthday when consensual conduct of this type ceased to be unlawful.

The application for an extension of time within which to appeal against conviction

7. On 15 May 2001 M J Byrne QC, then Acting Director of Public Prosecutions, consented to the prosecution of a charge that the applicant maintained an unlawful sexual relationship with the complainant between 3 July 1989 and 12 July 1998 and in the course of the relationship the applicant raped the complainant. It is not contended that the Acting Director did not have authority to give that consent. Mr Devereaux emphasises, however, the discrepancy between the wording of that consent and the wording of the relevant count on the indictment, count 1, which charged that:

“between the twenty-sixth day of July 1985 and the twelfth day of July 1998 at Townsville and elsewhere in the State of Queensland [AP] being an adult, maintained an unlawful relationship of a sexual nature with [M], a child under the age of 16 years

and in the course of the relationship [AP] unlawfully and indecently dealt with, attempted to rape, raped and had unlawful carnal knowledge of [M].”

I have emphasised the words which differ from the consent.

1. The legislation

8. The offence of maintaining a sexual relationship was first included into the Queensland Criminal Code on 3 July 1989 with the introduction of s 229B.^[2]

9. Section s 229B(1) established the offence of maintaining a sexual relationship with a child under 16 years, which was punishable by imprisonment for seven years. Section 229B(1A) set out evidentiary requirements as to the offence. Section 229B(1B) increased the penalty from seven to 14 years if, in the course of the relationship, the offender committed a sexual offence for which he was liable to imprisonment for between five and 14 years. Section 229B(1C) provided for a circumstance of aggravation^[3] resulting in the greater penalty of life imprisonment if the offender in the course of the relationship committed a sexual offence for which he is liable to imprisonment for 14 years or more.  Section 229B(1D) provided a defence to the offence established in s 229B(1) if the accused person proved on reasonable grounds that he or she believed the child was 16 years or older at the commencement of the period of the relationship.  Prosecution for an offence under s 229B(1) could not be commenced without the consent of a Crown Law officer.^[4]

10. Section 229B was substantially amended from 1 July 1997.^[5]  The section was again amended in 2003, but those amendments do not apply to the time frames here.^[6]

11. After July 1997, the amended s 229B(1) continued to create the offence of maintaining a sexual relationship with a child but provided a penalty of imprisonment for 14 years, instead of the seven year maximum penalty previously imposed.  Section 229B(2) is in similar terms to the earlier s 229B(1A) reflecting, however, some minor related legislative changes.  Section 229B(3) is in similar terms to the earlier s 229B(1C).  Section 229B(4) and (5) are of similar effect to the earlier s 229B(1D) but recognise other subsequent legislative changes and the differing age of consent for indecent dealing on the one hand and sodomy and attempted sodomy on the other.  Section 229B(6) is in similar terms to the first paragraph of the earlier section s 229B(2).  Section 229B(7) is in similar terms to the earlier proviso in the second paragraph of s 229B(2).  Section 229B(8) is in similar terms to s 229B(3) requiring the consent of a Crown Law officer before commencing a prosecution for an offence under s 229B.  Section 229B(9) defines the term "prescribed age" again to take into account the differing ages of consent between offences of indecent dealing on the one hand and offences of sodomy and attempted sodomy on the other.

12. The complainant's evidence at trial was that her relationship with the applicant spanned dates between 26 July 1985 until she turned 16 on 12 July 1998. Unlike the consent, which covered a period commencing only when the offence under s 229B was created, count 1 was mistakenly worded to cover the entire period of the relationship, and it also particularised more offences as constituting the relationship than in the consent.

13. Until 3 July 1989 there was no offence in Queensland of maintaining a sexual relationship with a child, although the Criminal Code has always recognised the need to protect juveniles from sexual exploitation and has proscribed such conduct through offences such as unlawful carnal knowledge and indecent dealing.  Insofar as this indictment alleged the sexual relationship maintained by the applicant as occurring prior to 3 July 1989, it alleged an offence not known to law.

(b)  Was the prosecution commenced with the consent of a Crown Law Officer?

14. A Crown Law Officer's consent was required to initiate the prosecution under s 229B.^[7]  The purpose of this requirement would seem to be to ensure that offences against s 229B are brought only in appropriate cases.  Such consent must be given by the time of filing or presenting the indictment in court: R v Evans^[8] and R v Parker.^[9]  In R v Mihans,^[10] an authority to commence the prosecution for a comparable offence under the Tasmanian Criminal Code had not been given prior to presenting the indictment; the prosecutor amended the indictment after verdict to allege a single act of indecent assault; as the indictment at its presentment was unauthorised it could not be cured by amendment and the court had no jurisdiction to hear the charge brought without the required consent.

15. Unlike Mihans, there was a consent here but it differed from the wording of the charge brought.  Did these differences mean there was no consent to the charge brought?  Dever v Creevey; ex parte Creevey^[11] dealt with an offence under the Fair Trading Act 1989 (Qld) which could not be instituted without the consent of the Commissioner for Consumer Affairs.  During the course of the hearing, the date of the offence was amended from “on or about 3 January 1990” to “on or about 4 January 1990”.  On appeal, the court held that once proceedings had been instituted with the Commissioner’s consent they were capable of amendment provided that they were not converted by the amendment into proceedings instituted without such consent.  What is necessary is that the consent is in terms which enable it to be said that the instituted proceedings have been instituted with consent: Traveland Pty Ltd v Doherty.^[12]

16. Mr Byrne’s consent encapsulated the period during which, on the prosecution case, the applicant could have been charged with the offence under s 229B. It may be inferred that his consent was largely based upon the same evidence as constituted the prosecution case here. The fact that the dates in the indictment commenced before the creation of the offence under s 229B did not mean the prosecution was commenced without consent. Nor does the difference between the description of offences committed in the course of the relationship in the consent and those in the indictment and which are relevant to the circumstance of aggravation^[13] mean that the consent given was not to the charge brought.  The offence under s 229B for which consent was necessary prior to instituting proceedings is created by s 229B(1).  The subsequent subsections are relevant to proof and penalty.  The particularised offences in the consent and the indictment relate to matters of proof and punishment and constitute aggravating circumstances to the charge created under s 229B(1) which, if intended to be relied upon as increasing penalty, must be charged in the indictment; they do not define the offence.^[14]  Mr Byrne's consent to bring the charge was a consent sufficient to provide the necessary authority for prosecution on indictment, despite the differences between the consent and the charge, accepting for present purposes that the defect can be cured by amendment.

(c)  Can the indictment now be amended?

17. The serious difficulty remains for the prosecution that count 1 of the indictment alleges a period which partially precedes the existence of the offence charged. Another minor concern is that the circumstance of aggravation is partially inconsistent with the fact that, during the trial the prosecution endorsed the indictment that it would not proceed with count 5 (unlawful carnal knowledge); count 1 should have then been amended to omit the words "unlawful carnal knowledge".

18. Section 572 Criminal Code gives wide powers of amendment and relevantly provides:

“(1)  If, on the trial of a person charged with an indictable offence, there appears to be a variance between the indictment and the evidence, or it appears that any words that ought to have been inserted in the indictment have been omitted, or any count that ought to have been included in the indictment has been omitted, or that any words that ought to have been omitted ought to have been inserted, the court may, if it considers that the variance, omission or insertion, is not material to the merits of the case, and that the accused person will not be prejudiced thereby in the person’s defence on the merits, order the indictment to be amended, as far as it is necessary, on such terms (if any) as to postponing the trial, and directing it be had before the same jury or another jury as the court may think reasonable.

(2)  The indictment is thereupon to be amended in accordance with the order of the court.

(3)  If the court is satisfied no injustice will be done by amending the indictment, the court may make the order at any time before or at any stage of, the trial on the indictment, or after verdict.”

19. The power under s 572(3) to amend includes amending the charge at appellate level provided that, subject to s 572(1), the effect of the amendment is not material to the merits of the case and the applicant will not be prejudiced in his defence on the merits: see R v Fahey, Solomon and AD.^[15]

20. The dates when an offence is alleged to have occurred is usually a matter of particulars rather than an element of the offence, but depending on the circumstances, particulars may be so crucial to the prosecution case that the charge may fail if those particulars are not established. This is not such a case. The evidence at trial of the applicant's behaviour after 3 July 1989 supports a conviction on count 1. It is impossible, without special verdicts, to understand precisely which three offences specified in s 229B(2)^[16] the jury were satisfied of when they convicted the appellant of the offence of maintaining.  In this case, however, the verdicts tell us that they were at least satisfied of counts 2, 3 and 4.  Convictions of these three offences alone were sufficient to establish the offence under s 229B(1) and the first three circumstances of aggravation alleged.^[17]  The jury verdicts on counts 2, 3 and 4 demonstrate the conviction on count 1 was open regardless of any evidence as to the applicant’s conduct prior to 3 July 1989 because, on their own, they are capable of constituting the three offences of a sexual nature necessary to establish the offence of maintaining.^[18]

21. Mr Devereaux contends the evidence of sexual acts preceding 3 July 1989 is likely to have been excluded during a trial where they were not directly relevant to a charge. I disagree. The evidence of the sexual acts which preceded 3 July 1989 were minor incidents when compared to his later conduct. By 1989, his behaviour had expanded into encouraging the complainant to touch him on the penis.  By 1992, it had progressed to the more serious conduct resulting in the charges contained in count 2 and later counts 3 and 4.  The evidence led at trial, including the applicant's pre-1989 conduct, demonstrated the full relationship between the complainant and the applicant, explaining how it commenced and developed and why she may not have resisted or complained; without it her evidence may have seemed implausible.  The probative value of her evidence of the applicant's pre-1989 conduct was significant and it was admissible: see Gipp v R.^[19]  It could not, of course, have been used directly to establish the offence of maintaining as it occurred before the creation of that offence.

If count 1 is amended, will this prejudice the applicant's defence on the merits or the merits of his case?

22. The word "merit" is famously subjective, but in this context plainly means "the substantial right and wrong of a matter unobscured by technicalities: the merits of a case".^[20]

23. Had the dates been correctly pleaded in count 1, the learned trial judge's directions to the jury in his summing-up would have been different in some relatively minor aspects, namely that a larger portion of the complainant's evidence concerned uncharged acts and was limited in its use. The learned primary judge here explained to the jury the limited use of relationship evidence and evidence of uncharged acts, and directed that the evidence of acts relevant only to count 1 could not be used as direct evidence of counts 2, 3 and 4 and were only relevant to the background of those offences. The defence case was that these things did not occur. It is difficult to see how the slightly different directions which would be given consequent to the amendments sought could effect the merits of the case, prejudice the defence on its merits, or cause any miscarriage of justice here.^[21]

24. In the context of all the evidence, I am satisfied the amendment to the dates sought by the respondent is not material to the merits of the case; the same evidence would have been before the jury with the only difference that the evidence preceding 3 July 1989 would have been evidence of uncharged acts on count 1, as well as counts 2, 3 and 4. There is no realistic prospect that the pleaded dates in count 1 before 3 July 1989 affected the jury verdicts on that count or counts 2, 3 and 4. The amendment, even at this very late stage is in the interests of justice, is not material to the merits of the case and the applicant’s defence is not prejudiced by it. I would allow the amendments sought.

25. I would grant the respondent’s application to amend count 1 on the indictment by omitting "twenty-sixth" and substituting "third"; omitting "1985" and substituting "1989" and omitting the words "and had unlawful carnal knowledge of".

The effect of the earlier hearing of the application for an extension of time within which to appeal

26. Although the applicant has had a prior application for an extension of time within which to appeal against conviction, that application was based on quite different grounds to those now raised.  There is some debate as to whether, in those circumstances, this Court has jurisdiction to hear a further application for extension of time.  Cases such as Grierson v R;^[22] R v Smith;^[23] R v Smith [No 2]^[24] and R v Kenny^[25]  suggest this Court has no jurisdiction to determine a second application for an extension of time within which to appeal against conviction.  On the other hand, Re Sinanovic’s Application,^[26] suggests that were the applicant able to establish that he had new matters demonstrating good prospects of success on appeal, this Court may have the power in the interests of justice to grant an application for an extension of time within which to appeal, even at this very late stage and after an earlier unsuccessful application on a separate basis.  As the grounds of appeal sought to be argued by the applicant in the appeal here are without substance, it is unnecessary to express a concluded view on this point.

27. I would refuse the application for an extension of time in which to appeal against conviction.

The application for leave to appeal against sentence

28. The applicant also applies for leave to appeal against sentence contending the sentence imposed was manifestly excessive in the circumstances and that the learned sentencing judge was wrongly influenced in determining the sentence by the applicant's uncharged conduct prior to 3 July 1989.

29. The learned primary judge noted in his sentencing remarks that the abuse commenced when the complainant was three years old; that the applicant seriously and persistently sexually interfered with her at increasingly serious levels of offending and that he was imposing a sentence based on the totality of the applicant’s conduct. The conduct prior to 3 July 1989 which, after amendment, was not incorporated in any charge, cannot result in a heavier penalty: R v D.^[27]  The applicant contends a sentence of 10 to 13 years was appropriate.  The respondent submits that whilst the learned sentencing judge sentenced on an incorrect basis in that he took into account the three year period wrongly charged in count 1, which could not be included in that count, the sentencing range was 13 to 15 years imprisonment and the sentence was warranted.

30. The applicant was 57 years old at sentence. He was the complainant’s foster father and she had lived with him since she was three years old; he was the only father figure she knew. The amended indictment covers a period of 9 years when the complainant was aged from 7 to 16 years. The evidence establishes a pattern of escalating corruptive behaviour including an attempt to penetrate the victim with his penis when she was just ten years old; the taking of her virginity by rape; serial rape; her impregnation and the development of a consensual sexual relationship after the birth of her child, when, in many ways, she was still a child herself.

31. The applicant initially denied all allegations; only when DNA testing established paternity did he admit an isolated act of intercourse, which he claimed was initiated by the complainant. He has shown no remorse for his despicable conduct.

32. The applicant’s offending has had a devastating effect upon the complainant. It is difficult to imagine a greater abuse of trust than that perpetrated by the applicant upon the complainant throughout her formative years. She was in her foster father’s care from the age of three; she was completely vulnerable with apparently nowhere else to turn. She is now, unsurprisingly, a deeply disturbed young woman with significant personality disorders and emotional problems which have manifested themselves in anti-social behaviour, including drug and alcohol abuse and serious criminal offending.

33. The applicant had a limited criminal history which included a breach of domestic violence order, a conviction for assault occasioning bodily harm and threatening suicide, all of which occurred on 27 July 1993 and for which he was placed on 18 months probation.  He was on probation for some of the period covered by count 1 and when count 3 occurred.  He did not have any mitigating benefit of a plea of guilty or remorse, an important factor in cases of this sort.  The offences were committed prior to the introduction of Part 9A Penalties & Sentences Act 1992 (Qld) and the offences cannot be the subject of a declaration under that Part.

34. Whilst recognising that the applicant must not be sentenced to a greater term of imprisonment for his conduct before 3 July 1989, the comparable cases of R v L,^[28] R v Krieger,^[29] R v S^[30] and R v Myers^[31] nevertheless support a sentence of 14 years imprisonment.  The reduction in sentence from 15 years sufficiently recognises the error into which the primary judge was led of taking into account the period of offending behaviour prior to July 1989.

35. I would grant the application for leave to appeal against sentence and allow the appeal to the extent of substituting 14 years imprisonment for the 15 years imprisonment imposed on counts 1 and 4.

Orders

1. Grant the respondent's application to amend the indictment by omitting "twenty-sixth" and substituting "third"; by omitting "1985" and substituting "1989" and by omitting "and had unlawful carnal knowledge of".

2. Refuse the application for an extension of time within which to appeal against conviction.

3. Grant the application for leave to appeal against sentence and allow the appeal to the extent of substituting a sentence of 14 years imprisonment for the 15 years imprisonment imposed on counts 1 and 4.

36. DAVIES JA:  The relevant facts and legislation are fully set out in the reasons of the President and I shall not repeat them here.  I turn to the specific questions which this application raises.

Is the applicant precluded, by what previously occurred, from applying for an extension of time within which to appeal against his conviction?

37. As the President has pointed out, a previous application by the applicant for an extension of time within which to appeal against his convictions was dismissed by this Court on its merits; that is, the application was dismissed on the basis that, if it were granted, the appeal would fail on its merits. The applicant now seeks an extension within which to appeal based on different grounds.

38. By the time this application was heard by this Court on 26 May 2003, there had been no less than eight decisions of this Court holding that, an appeal having been dismissed on its merits, this Court had no jurisdiction to hear a further appeal.^[32]  In the somewhat lengthy time between the hearing of this application and this judgment, this Court has again twice so held.^[33]  All of these decisions applied the principle stated by the High Court in Grierson v R.^[34]

39. The principle stated in Grierson is based on the statutory nature of an appeal and the finality of a decision given on such an appeal.  Moreover it was said in that case to apply equally to a dismissal on the merits of an application for leave to appeal.^[35]

40. I do not think that the application of this principle to cases in which a previous appeal has been dismissed on its merits can now be in any doubt. And even if I had any doubt on that question I would feel bound to follow the now abundant authority in the High Court, this Court and other intermediate courts of appeal.^[36]

41. The application of this principle to an earlier decision dismissing an application for leave to appeal is less clear, notwithstanding the statement by Dixon J in Grierson that it does apply.  Such an order appears on its face to be an interlocutory one^[37] notwithstanding that it may be on the ground that the appeal would fail on its merits.  However the principle was applied to such a case by the Court of Criminal Appeal twice^[38] and appears to have been accepted by this Court in R v Pettigrew,^[39] though the Court held that it had a limited power to reconsider such a decision.^[40]  In my view there is a great deal to be said for the application of this principle to applications for leave to appeal against sentence in this Court as those applications are, in practice, treated as appeals.  However I do not find it necessary to reach a final conclusion on this question.^[41]

42. In the present case, as the facts stated by the President show, what had previously been dismissed was an application for an extension of time within which to appeal against his conviction. That was, in my opinion, much more clearly an interlocutory order notwithstanding that the application was dismissed because the Court thought that there were no merits in the applicant's proposed appeal. In my opinion, therefore, such an order does not preclude this Court from hearing a further such application, though if it were based on the same grounds it would be bound to fail. It is therefore necessary to consider the merits of this application which is not on the same grounds.

Is there any arguable basis for an appeal against conviction?

43. The sole basis contended for by the applicant was that, in alleging an offence of maintaining an unlawful relationship of a sexual nature with the complainant, a child under 16, between 26 July 1985 and 12 July 1998, the indictment commenced a prosecution without the consent of a Crown Law Officer; or alternatively alleged an offence not known to the law.  In either case, it was submitted, the conviction should be quashed.

(a)Was the prosecution commenced without the consent of a Crown Law Officer?^[42]

44. A Crown Law Officer consented to the prosecution of the applicant for an offence defined in s 229B(1), namely that the appellant maintained an unlawful relationship of a sexual nature with the complainant, a child under 16, with circumstances of aggravation. He consented to this being alleged between 3 July 1989 and 12 July 1998. The significance of 3 July 1989 in that consent was that the offence was created by statutory amendment on that date. And the significance of 12 July 1998 was that this was the complainant's 16th birthday.

45. The significance of the first of these dates seems to have been lost sight of when the indictment was drafted and presented for it alleged that the offence was committed between 26 July 1985 and 12 July 1998. It is plain from what I have said that the offence could not have been committed before 3 July 1989.

46. However the dates during which it is alleged the offence was committed are not essential elements of the offence as defined.^[43]  What the Crown Law Officer consented to was the prosecution of an offence by the appellant of maintaining an unlawful relationship of a sexual nature with the complainant a child under 16, the offence as defined.  The prosecution was therefore not commenced without the consent of a Crown Law Officer.

2. Does the indictment allege an offence not known to the law?

47. For the reason already given it does not; it alleges an offence as defined in s 229B. Nevertheless if it could have been shown that the applicant had been disadvantaged by the dates alleged in the indictment such that the trial had miscarried the applicant would have been entitled to have his conviction on this charge set aside and a new trial ordered.

48. However, nothing of the kind was shown here. On the contrary, the specific offences of which the applicant was convicted, which together were sufficient to constitute the maintaining offence, indecent dealing, attempted rape and rape, all took place after 3 July 1989.

49. There is no doubt about the power of this Court to amend an indictment, at this stage,^[44] and such an amendment will not prejudice the applicant in any way.  In particular, the evidence of improper sexual conduct of the applicant towards the complainant prior to 3 July 1989 would have been equally admissible, upon an indictment alleging the maintaining offence commencing only on 3 July 1989, as showing the relationship between the parties.  I agree with the President that it is appropriate that the indictment in this case be so amended; that is to allege the maintaining offence during the period 3 July 1989 to 12 July 1998.

50. For those reasons I agree that the application for an extension of time within which to appeal against conviction should be dismissed. I agree with the orders proposed and the reasons therefor in the application for leave to appeal against sentence. I agree with the orders proposed by the President.

51. JONES J:  For the reasons given by McMurdo P I agree with the orders she proposes.