SUPREME COURT OF QUEENSLAND

[1]  JERRARD JA:  On 3 February 2004 this Court dismissed an appeal by Mr S against his convictions on four counts of indecent treatment of a girl under 14 years, one count of indecent treatment of a boy under 14 years, five counts of rape, and one count of unlawful carnal knowledge of a child against the order of nature.  This Court also dismissed that same day an application by Mr S for leave to appeal against an effective sentence of 10 years imprisonment for those offences. 

[2] The judgment of the court (R v S [2004] QCA 3) records that Mr S had not filed a written outline of argument prior to the hearing, but that his grounds of appeal required a consideration of the whole of the evidence.  Those grounds of appeal allege that the convictions were unsafe and unsatisfactory and not according to law, and that the sentences imposed were manifestly excessive in all the circumstances.  The notice of appeal containing those grounds of appeal and application was dated 28 August 2003.  The convictions, and the sentences, were incurred on 1 August 2003, so Mr S acted promptly enough at that time in bringing his then appeal and application.

[3] The judgment of this Court, dismissing the appeal against the convictions and the application for leave to appeal against the sentences was delivered by the President, with whose reasons and orders Davies JA and McPherson JA simply agreed.  Those reasons specified the matters relied on by the prosecution on each of the 11 counts to which Mr S was found guilty, and the one which he was acquitted by the jury, describing the evidence, who gave it, and which counts were potentially corroborated by evidence from another source or sources.  The President’s judgment described the nature of the defence case, as summarised by the learned trial judge, and concluded that the case against Mr S was a strong one, and the offences he had committed were rightly described by the learned primary judge as appalling abuses of trust, committed on two very young children over an extended period of time by their only father figure.  The primary judge had referred to the contents of statements by the victims, and the President concluded that the 10 year head sentence could not be said to be manifestly excessive.

[4] Mr S has lodged a second application, for an extension of time in which to appeal against his convictions and for leave to appeal against his sentences, filed on 9 July 2007.  The second application concerns the same 11 convictions as were considered in the appeal and application to this Court in R v S [2004] QCA 3.  His grounds of appeal against conviction are generally identical with his earlier ones, alleging that the convictions were unsafe and unsatisfactory and the evidence could not support them, and that the sentence of 10 years was manifestly excessive.  The only difference is that he now specifies that he wishes to be present when the Court considers, as he assumes it will, his second application.  The application filed 9 July 2007 complains that he was not represented on the appeal and application heard in February 2004, because of a communication breakdown between Mr S and his legal team, compounded by his profound hearing deficiency.  He also said he was unaware of his responsibilities, due to a lack of knowledge of the criminal and court system.

[5] Mr S was actually present in person in this Court on 3 February 2004, when his appeals and his application for leave to appeal were heard.  He told this Court then that legal aid had been refused, and he was invited to make submissions as to why his conviction was wrong.  Mr S did not make any responsive submissions, remarking simply that he did not see “anything that happened”, and that he had lost his employment as a result of the sentence.

[6] The two complainants were a girl, A, aged between 6 and 12 at the time of the offences allegedly committed against her, and a boy, G, aged between 5 and 11 throughout the offending period.  Mr S’s written submission in support of his July 2007 application contends that A contradicted herself during cross-examination, and that the evidence against Mr S was only hearsay.  The second submission is simply wrong, because A and G both gave direct evidence of the commission of offences by Mr S.  That evidence was described with care by the President in her reasons for judgment in R v S [2004] QCA 3. 

[7] Mr S makes other points in his written submission, including that there was a delay by both of the alleged victims making any complaint about what he was assertedly doing.  He also made the point that there was no physical evidence of the commission of offences by him.  The second matter is perhaps a consequence of the first.  A’s evidence had included that:

“I sort of went along with him just for my own protection, I guess, because he had threatened to hurt me a few times.  I just found that if I went along with him, I – might be less chance of being hurt and things like that.”[1]

[8] Her evidence had also included that:

“Quite a few times before I told my mother I’d – G and I’d talked about confessing to everything, and one time (Mr S) overheard and said, ‘No, you’re not going to do that.’”[2]

A had accordingly volunteered an explanation for the delay in her complaint.  G did not volunteer any reason in his evidence-in-chief, and was not cross-examined about any reason for delaying, though it emerged in his cross-examination that he had made a statement to police in New South Wales in approximately 1993, and another in 2001. 

[9] The offences alleged against Mr S were described as happening between 1981 and 1987, when Mr S was the then de facto partner of the children’s mother.  The President’s reasons for judgment describe each count, and that G did not give any evidence supporting A’s evidence that count 2, an alleged touching of G’s penis by A at the instigation of Mr S, had actually happened.  The President considered that may have been why the jury acquitted Mr S on count 2, but convicted him of count 1, an alleged touching of A’s groin outside of her clothes, and her touching S’s penis both inside and outside of his clothes, at his instigation, and A’s then masturbating Mr S.  Count 3, the first act of vaginal intercourse, and which caused A excruciating pain, allegedly occurred when the family was still living at the same premises where counts 1 and 2 were committed, although on a different occasion from the date of counts 1 and 2.  As the President’s judgment in R v S [2004] QCA 3 records, the remaining counts (4-12) were described as occurring after the family had moved to a nearby coastal town, at the end of A’s grade 2 year.  Counts 4 and 5 were respectively alleged occasions of anal and vaginal intercourse at that then relatively new residence, when A was in grade 3; count 6 was an occasion when Mr S procured A to touch and suck his penis in a bushland area when she was in grade 6; and count 7 an occasion on or about A’s ninth birthday (making it on 10 January 1984), when Mr S inserted first his fingers, and then his penis into A’s vagina.  That had happened in the marital bedroom at the same premises where counts 4 and 5 happened. 

[10]  On A’s evidence counts 8 to 10 occurred the next day, still at those same premises, when G was also present.  Her evidence, supported by G in this regard, described A being required by Mr S to touch the latter’s penis, and G’s penis, to perform fellatio on each of Mr S and G in turn, and A then submitted to penile intercourse with Mr S.  G’s evidence appeared to describe the same conduct, involving the same people, in the same room of the same premises, and on the occasion described by A.  The evidence of A and G was therefore capable of providing substantial corroboration of the commission of those particular offences, indicative of a sexual relationship between Mr S and both children.

[11]  Mr S’s written submission on this application makes the valid point that A’s evidence to the jury had readily agreed that on the first occasion of sexual abuse at the original premises, the subject of counts 1 and 2, she had specified that Mr S had touched her groin and vulva, and put her hand into his pants and G’s pants, but she also specified that she had not been required then to commit fellatio on either person.  In contrast, the cross-examiner established that a statement she had given to the police asserted that on that first occasion, she had told the police that Mr S did require her to suck both his penis and G’s.  That contradiction in A’s evidence is manifest in the appeal record, and A asserted in cross-examination about, that:

“I got confused with that because there was so many incidents that had happened and I couldn’t put them in the right perspective, being such a long time ago.”[3]

[12]  Accepting there is that inconsistency in respect of those counts 1 and 2, the case against Mr S is still a strong one, on all matters on which he was convicted, and the inconsistency was brought to the jury’s attention.  As the President observed in the first judgment of this Court, there was uncontradicted evidence from A that Mr S committed the offences concerning her, directly supported in respect of some counts and indirectly supported in respect of all counts by G’s evidence, and further potentially supported by statements capable of amounting to admissions made by Mr S to the police.  The President described the nature of those statements, which had included that when spoken to by police on 17 July 2002, in a conversation in which Mr S acknowledged that allegations had been made that there were dealings of a sexual nature between himself and A, he had said:

“Yeah, that happened, yeah.”[4]

Later, when referred to a statement from A, and to one from G, he had said:

“Yeah that’s what happened.”

Mr S did not give or call any oral evidence to explain why he replied to the police in those terms, but his counsel suggested he may not have understood the questions the police asked.

[13]  Mr S produced a list of other sentences which he had found in his researches.  Those included sentences of nine years, eight years, 10 years, and 11 years for sexual offending against children.  Those do not show his sentence was excessive.

[14]  This second appeal by Mr S, in which he purports to challenge all over again his 11 convictions, is a second attempt to appeal on the merits, which attempt flies in the face of the decisions in the High Court in Grierson v The King (1938) 60 CLR 431, followed and applied by this Court in R v MAM [2005] QCA 323 and R v Senior [2005] QCA 21.  Those decisions are authority for the proposition that this Court has no jurisdiction to hear more than one appeal against a conviction, or as expressed by Keane JA in R v MAM, the right of appeal conferred by s 668D of the Criminal Code 1899 (Qld) is exhausted once an appellant has been afforded one opportunity to have his or her appeal considered on its merits.  Mr S has already had that opportunity, and nothing in his second lot of arguments shows any reason for overturning those earlier decisions in R v Senior and R v MAM, applying as they do the rule in Grierson v The King.  The only new matter is Mr S’s argument that at all stages those conducting the interviews with him at his trial and earlier appeal have failed in an asserted duty of care to provide an interpreter to him, and to provide translation.  That asserted breach of duty is allegedly based on Mr S’s:

“Vast misunderstanding of what was actually being said.” 

As to that, there is no record of Mr S requesting any assistance in understanding what was said to him, and nothing in the appeal record to suggest that he did not understand the questions asked by the police or in this Court.  His responses appear to have been appropriate, if not helpful to him.

[15]  This Court has no jurisdiction to hear a second set of appeals against conviction and the severity of his sentences, having already considered both those matters previously on their merits.  I would therefore dismiss the application.

[16]  KEANE JA: I agree with the reasons of Jerrard JA and with the order proposed by his Honour.

[17]  DOUGLAS J:  I also agree with the reasons of Jerrard JA and the orders proposed by his Honour.