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R v Martens[2009] QCA 139

Reported at [2010] 1 Qd R 564

 

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Criminal

ORIGINATING COURT:

DELIVERED ON:

26 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

21 May 2009

JUDGES:

Keane and Fraser JJA and Applegarth J

Judgment of the Court

ORDERS:

1.The applicant be admitted to bail upon his own undertaking in respect of the charge that between 10 and 16 September 2001 at Port Moresby in the Independent State of Papua New Guinea he, an Australian citizen, while outside Australia, engaged in sexual intercourse with a person who was under 16, contrary to s 50BA of the Crimes Act 1914 (Cth), such undertaking being conditioned that:

a.the applicant shall surrender any passport in his possession, power or control to the Office of the Commonwealth Director of Public Prosecutions in Cairns, and shall not apply for any travel document without the prior written consent of the Commonwealth Director of Public Prosecutions;

b.the applicant shall not directly contact any potential witnesses.

2.The legal representatives of the parties confer and submit to the Court by 4.00 pm Thursday 4 June 2009 proposed directions for the further conduct of the matter, including any proposals for the taking of evidence by video link.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – BAIL – AFTER CONVICTION – SPECIAL OR EXCEPTIONAL CIRCUMSTANCES – GENERALLY – where applicant convicted of offence and matter referred to Court of Appeal on petition for mercy – where uncontradicted evidence that complainant told others subsequent to conviction that complaint was fabricated – where applicant would have served substantial portion of sentence if remanded until hearing of referral – whether extraordinary circumstances exist to warrant grant of bail

Acts Interpretation Act 1954 (Qld), s 35, s 36

Crimes Act 1914 (Cth), s 50BA

Criminal Code 1899 (Qld), s 1, s 668D, s 672A

Judiciary Act 1903 (Cth), s 68

Chamberlain v The Queen [No 1] (1983) 153 CLR 514; [1983] HCA 13, considered

Ellis v R [1998] 3 NZLR 555, applied

Ex parte Maher [1986] 1 Qd R 303, cited

Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, cited

Hanson v Director of Public Prosecutions (Qld) (2003) 142 A Crim R 241; [2003] QCA 409, cited

Martens v Commonwealth of Australia (2009) 253 ALR 457; [2009] FCA 207, considered

Mallard v The Queen (2005) 224 CLR 125; [2008] HCA 68, cited

Peel v The Queen (1971) 125 CLR 447; [1971] HCA 59, considered

R v Ali [2008] QCA 39, cited

R v Butler [2009] QCA 111, cited

R v MAM [2005] QCA 323, cited

R v Martens [2007] QCA 137, cited

R v Nudd [2007] QCA 40, cited

COUNSEL:

M P Sumner-Potts for the applicant

J Bentley for the respondent

SOLICITORS:

Cameron A Price for the applicant

Director of Public Prosecutions (Commonwealth) for the respondent

[1]  THE COURT:  The applicant applies for bail, and also for an order that the respondent file and serve an affidavit sworn by the arresting officer of the Australian Federal Police (AFP) "setting out in full the activities the AFP has engaged in in this matter including the activities of the Transnational Crime Unit, such affidavit to include all running sheets, diary entries, details of all statements taken in relation to my matter".  Directions also are sought by the applicant concerning the taking of evidence by video link.

Background

[2] On 30 October 2006, the applicant, an Australian citizen, was convicted of having sexual intercourse with a person who was under the age of 16, while outside Australia, contrary to s 50BA of the Crimes Act 1914 (Cth).  The offence was alleged to have occurred in Port Moresby, Papua New Guinea, between 10 and 16 September 2001.  The applicant was sentenced to five and a half years imprisonment with a non-parole period of three years.

[3] The applicant appealed to this Court against his conviction and sought leave to appeal against his sentence.  His appeal and application in relation to his sentence were rejected by this Court on 20 April 2007.[1]

[4] In recent times the Commonwealth Attorney-General considered information submitted on behalf of the applicant and the case as a whole, and formed the belief that evidence that had been presented to him might raise a significant possibility that the applicant would be acquitted by a jury acting reasonably.  By letter dated 9 April 2009 the Commonwealth Attorney-General referred the applicant’s case to this Court under s 672A of the Criminal Code (Qld). 

Section 672A of the Criminal Code

[5] Section 672A of the Criminal Code provides:

"672A Pardoning power preserved

Nothing in sections 668 to 672 shall affect the pardoning power of the Governor on behalf of Her Majesty, but the Crown Law Officer, on the consideration of any petition for the exercise of the pardoning power having reference to the conviction of any person or to any sentence passed on a convicted person, may –

(a) refer the whole case to the Court, and the case shall be heard and determined by the Court as in the case of an appeal by a person convicted; or

(b) if the Crown Law Officer desires the assistance of the Court on any point arising in the case with a view to the determination of the petition, refer that point to the Court for its opinion thereon, and the Court shall consider the point so referred and furnish the Crown Law Officer with its opinion thereon accordingly."

[6] With respect to s 672A of the Code, s 1 of the Code defines "Crown Law Officer" as "the Attorney-General or director of public prosecutions".

[7] Section 35 of the Acts Interpretation Act 1954 (Qld) relevantly provides that:

"(1)In an Act–

(a)a reference to an officer, office or entity is a reference to such an officer, office or entity in and for Queensland

(2)In an Act, a reference to an office or entity established by or under an Act need not include the words 'Queensland' or 'of Queensland' merely because the words form part of its name or title."

[8] Section 36 provides that "office includes position" and "entity includes a person and an unincorporated body".  That section defines "officer" with respect to the public service.

[9] In Martens v Commonwealth of Australia[2] Logan J of the Federal Court of Australia concluded that it was open to the Commonwealth Attorney-General to enliven the jurisdiction of this Court under s 672A of the Criminal Code.  Logan J did not have the benefit of argument on this point.The view of Logan J is entitled to great respect, but we note that it may be arguable that the procedure afforded the Attorney-General of the State of Queensland by s 672A of the Criminal Code is not available to the Attorney-General of the Commonwealth by virtue of s 68(2) of the Judiciary Act 1903 (Cth).  Section 68(2) of the Judiciary Act is in the following terms: 

"The several Courts of a State or Territory exercising jurisdiction with respect to:

(a) the summary conviction; or

(b) the examination and commitment for trial on indictment; or

(c) the trial and conviction on indictment;

of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth."

[10]  The decision of the High Court in Peel v The Queen[3] may be said to afford support for the course taken in this case by the Commonwealth Attorney-General, but that decision is not determinative of the precise question which arises in this case.  The precise issue in Peel v The Queen was whether "an appeal against sentence answers the description of an appeal arising out of the trial or the conviction or arising out of proceedings connected therewith".[4]

[11]  The view of the majority of the High Court was that s 68(2) of the Judiciary Act "gives a jurisdiction to review proceedings not hitherto subject to appeal and so creates new remedies by conferring power to administer them".[5]  Thus the right of appeal was regarded as necessarily having been conferred on the Attorney-General for the Commonwealth to make meaningful and effective the conferral of jurisdiction on the courts of the State "jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth". 

[12]  It may be accepted that the jurisdiction conferred by s 68(2) should not be understood so narrowly as to be rendered nugatory, but under s 672A, the jurisdiction of this Court to entertain a reference made to it, which is thereupon to be determined as if it were an appeal, is an extraordinary jurisdiction.  It is a jurisdiction which is enlivened only by action on the part of the Attorney-General of Queensland.[6]

[13]  The only right of appeal against a conviction on indictment is conferred on the person convicted by s 668D(1) of the Criminal Code.  Once an appeal under this section has been heard and determined by this Court, the jurisdiction of this Court is exhausted and this Court has no jurisdiction to entertain any further appeal.[7]  Accordingly, under the Criminal Code, absent a reference from the Attorney-General for the State of Queensland, this Court has no jurisdiction at all in respect of the conviction in this case. 

[14]  Section 68(2) of the Judiciary Act does not require or authorise this Court to treat the Attorney-General of the Commonwealth as if he were the Attorney-General for the State of Queensland for the purposes of exercising the power conferred peculiarly on the Attorney-General of Queensland.  It is difficult to see how the power conferred by s 672A on a specified person, namely the Attorney-General of Queensland, and on him or her alone, is also conferred on a different person, namely the Attorney-General of the Commonwealth.  Certainly s 68(2) of the Judiciary Act does not reveal an intention to confer such a power.  This difficulty is compounded by the consideration that the extraordinary jurisdiction enlivened by the Attorney-General's reference under s 672A arises as a consequence of the exercise of power under a statutory provision which is an adjunct to the prerogative of mercy of the Crown in right of the State of Queensland

[15]  All this having been said, neither party has sought to argue this point.  Parties cannot confer on a court a jurisdiction which it does not have by agreement or concession.  However this Court should proceed to resolve the application for bail on the basis that there is no doubt about the jurisdiction of the Court to entertain applications for bail, and that it is at least arguable that the Commonwealth Attorney-General may enliven the jurisdiction of this Court under s 672A of the Criminal Code.  The argument in support of a jurisdiction based upon the operation of s 68 of the Judiciary Act appears in the reasons of Logan J in Martens v Commonwealth of Australia.

[16]  The approach of the Court when determining a reference of the "whole case" under s 672A(a) of the Criminal Code was stated in Mallard v The Queen[8] in which the High Court considered the Western Australian equivalent of s 672A.  The words "the whole case" in s 672A(a) embrace "the whole of the evidence properly admissible whether 'new', 'fresh' or previously adduced".  In Pepper v Attorney-General (Qld) (No 2) Muir JA, with whom de Jersey CJ and Fraser JA agreed, stated:

"The issue to be determined by the Court of Appeal in considering a matter referred under s 672A(a) is the same as that falling for resolution on an appeal, namely whether there has been a miscarriage of justice." [9]

[17]  The approach of the Court to the reception and use of new evidence was recently discussed by this Court in R v Butler.[10]

[18]  The applicant proposes to rely upon evidence that has come to light since the trial which casts serious doubt on the complainant’s credibility, supports his version of events about the complainant’s whereabouts in August and September 2001 and which is to the effect that the complainant made the allegations against him, knowing them to be false, and has admitted this to certain witnesses.

The application for bail

[19]  In Hanson v Director of Public Prosecutions (Qld)[11] this Court confirmed principles established in Ex parte Maher[12] that bail pending appeal against conviction should only be granted in exceptional circumstances.  The judgments in Ex parte Maher and Hanson make clear that the prospect of success on appeal is an obviously important matter when determining whether or not such exceptional circumstances exist.[13]  Another important matter is whether the sentence, or in all events the custodial part of it, is likely to have been substantially served before the appeal is determined.[14]

[20]  There is no apparent reason to apply different principles to those established by authorities such as Ex parte Maher and Hanson to an application for bail pending the determination of a reference pursuant to s 672A.  Section 672A(a) provides that the case "shall be heard and determined by the Court as in the case of an appeal by a person convicted".  In Ellis v R[15] a submission was made that an application for bail in respect of a reference should be treated differently from an application by a “first-time appellant”.  The submission was that the Court was on notice that a miscarriage of justice might have occurred and, accordingly, the Court should be readier to grant bail than in the case of an appeal.  The New Zealand Court of Appeal noted that, on the other hand, it may be said that the applicant has already had his or her general appeal dismissed, and observed:

"The crucial and common feature is that the applicant for bail is a convicted person serving his or her sentence.  We see no justification for applying different tests under the same bail provision... "[16]

[21]  Counsel for the respondent cites Chamberlain v The Queen [No 1][17] in support of a submission that in a case such as the present, where the Court of Appeal has dismissed an appeal against conviction, the grant of bail will be more restricted than in those cases where bail is sought pending an appeal.  However, the passage of the judgment of Brennan J (as his Honour then was) in Chamberlain was concerned with the grant of bail pending an application for special leave to appeal to the High Court.  His Honour stated that in practice the grant of bail in such a case:

"will be more restricted than the grant of bail by courts exercising a general statutory power where there is an actual appeal pending.  That is because the cases in which special leave to appeal is sought are usually cases in which an intermediate court of appeal has found neither an appellable error occasioning a substantial miscarriage of justice in the trial nor an error of law affecting the sentence."[18] 

[22] Chamberlain does not support the proposition contended for by the respondent.  The principles governing bail pending an appeal apply, and these require the applicant to show that exceptional circumstances exist.

[23]  An application for bail pending the reference in this matter was made in the Supreme Court at Cairns on 20 and 21 April 2009, at a time when it was thought that a hearing might occur in this Court on 9 June.  The application was refused.  However, it subsequently became apparent that the matter would occupy more than the half day available on 9 June and the matter was re-listed for 19 June 2009.  For the reasons appearing below in relation to the future conduct of the matter, it is now doubtful whether the matter can be heard on 19 June 2009.  In any event, circumstances have changed since the bail application that was refused by Jones J. 

[24]  The applicant is due to be released on 30 October 2009.  Even if the matter can be heard on 19 June 2009, proper consideration of it may require further time to pass before the appeal can be determined.  If the applicant is successful, then there is a substantial risk that the custodial part of his sentence will have been substantially served before the appeal is determined.

[25]  We turn to consider the applicant’s prospects of success.

[26]  The case against the applicant was that the complainant was twice flown to Port Moresby by him in 2001 from her village.  The complainant’s evidence was that the first occasion was in March 2001 for the purpose of obtaining a passport, following which the appellant flew her back to her village.  The complainant was probably wrong in saying that she flew to Port Moresby in March 2001.  The evidence strongly indicated that she was flown by the applicant to Port Moresby on 10 August 2001 in order to obtain a passport photograph and to complete documents for a visa that would enable her to attend school in Cairns

[27]  According to the complainant she flew home to her village a few days after the photograph was taken and forms were completed, and the second occasion that she flew from her village to Port Moresby was a school day between 10 and 16 September 2001.  She said that she celebrated her birthday (10 September) before leaving and she was in Port Moresby for Papua New Guinea’s Independence Day celebrations (16 September).  She said that after she and the applicant arrived in Port Moresby on this occasion they went to his unit in suburban Korobosea.  The complainant said that she went to sleep beside the applicant in his bed and that during the night she was woken by him, overpowered and raped.  The complainant’s evidence was that the next morning the applicant acceded to her request to take her to her uncle’s home, where she stayed with his family for three weeks before flying home on a commercial flight. 

[28]  The applicant’s evidence at trial was that there was only one occasion in 2001 upon which he flew the complainant to Port Moresby, that she did not stay overnight at his premises at Korobosea and that he and the complainant stayed on the night of 10 August 2001, without incident, at the home of a friend, Ian Proctor.  His evidence was supported by Mr Proctor’s evidence.

[29]  The new evidence upon which the applicant intends to rely throws doubt on the complainant’s credibility and strongly supports the applicant’s case that the complainant arrived in Port Moresby on or about 10 August 2001 and stayed there until September 2001. Various witnesses have given detailed statements to the effect that the complainant arrived in Port Moresby in August 2001 and did not leave there until after 16 September 2001.  The evidence is that she stayed with her uncle (the late Dr Budai Tapari) and his family for a few weeks after arriving in early August 2001 and then moved to stay with her aunt, Koni Kumbulmu, at Tokarara, until around 20 September 2001.  The complainant is said to have declined an invitation to return to her village because she wanted to remain in Port Moresby for the 16 September Independence Day celebrations.

[30]  The respondent acknowledges that the contents of these affidavits are in direct conflict with the evidence given by the complainant and other Crown witnesses at the trial in October 2006. 

[31]  The new evidence also is to the effect that the complainant has admitted making up the story against the applicant in order to obtain money.  The complainant’s cousin, Diane Tapari, has sworn an affidavit relating to events in November 2003 when she met the complainant and asked her if it was true that the applicant had raped her.  According to Diane Tapari, the complainant said that she had made the story up in order to get some money from the applicant.  Another of the complainant’s cousins, Moi Tapari, has sworn an affidavit which states that in November 2003, when he last saw the complainant, she told his sister (Diane Tapari), a group of his cousins and him that she had made up the story concerning the applicant in order to obtain money from the applicant.  Mr Tapari says that the complainant appeared unconcerned about it because she was looking down to the ground and giggling when she said this. 

[32]  Tahuni Tapari, the mother of Diane Tapari, swore an affidavit on 23 January 2008 that her daughter Diane had told her in about late 2003 of the complainant’s admission of having made up the story about having sex with the applicant.

[33]  As the respondent’s counsel submits, at this time, the new evidence is untested.  Evidence submitted by the respondent on this application, which likewise has been untested, indicates that Tahuni Tapari told a witness who gave evidence at the trial that the witness would be paid money should she change her story.  It is also pointed out by the respondent that an earlier statement from Moi Tapari taken by a police officer on 17 October 2008 did not include an allegation that the complainant had admitted fabricating her allegations against the applicant and that, when interviewed by police on that occasion, Mr Tapari said that he had not heard of such an allegation.  Despite these features which, if proven, will detract from the credibility or reliability of the evidence of some of the deponents of recent affidavits, the new evidence directly contradicts the Crown’s evidence at trial and, if true, seriously undermines the credibility of the complainant. 

[34]  The credibility of the complainant’s evidence and the Crown case against the applicant are undermined by records that were obtained after the trial from the Civil Aviation Authority in Papua New Guinea which supports the applicant’s evidence concerning the flights that he undertook in September 2001.  They are inconsistent with the complainant’s evidence of a second flight to Port Moresby after 10 September 2001. 

[35]  The matter was mentioned before the Court on 27 April and 1 May 2009.  Since that time the respondent has had the opportunity to seek and obtain evidence from the complainant contradicting the new evidence which is advanced by the applicant and, in particular, denying that she has admitted to her cousins that she fabricated her allegations against the applicant.  No statement from the complainant has been forthcoming addressing these matters.  The Court was told at the hearing of the application on 21 May 2009 that the complainant had yet to be interviewed by officers of the respondent or the AFP.  This is remarkable, notwithstanding difficulties of access to remote parts of Papua New Guinea and what was said by counsel to be protocols concerning the conduct of investigations by the AFP in New Guinea.  Commonwealth authorities have been on notice of the allegations concerning the reliability and truthfulness of the complainant for a substantial time.

[36]  Tahuni Tapari’s affidavit dated 23 January 2008 and other material was before the Commonwealth Minister for Home Affairs in 2008.  That Minister’s decision of 4 September 2008 to not refer the case to this Court was set aside by the Federal Court on 6 March 2009.  The matter was then considered by the Commonwealth Attorney-General.

[37] The more recent affidavits of Diane Tapari dated 20 March 2009 and Moi Tapari of 23 and 24 March 2009, affidavits of Willie Kalana and Naomi Kalana each sworn 6 December 2007, the affidavit of Tahuni Tapari, and other new material relied upon by the applicant might reasonably have prompted Commonwealth authorities to seek the complainant’s response to the allegations concerning her long before now.  It is remarkable that the complainant’s response was not obtained shortly after the matter was referred to the Court by the Commonwealth Attorney-General on 9 April 2009. 

[38] The application for bail falls to be determined in circumstances in which there is no affidavit from the complainant, and no affidavit from an officer of the respondent or of the AFP which deposes to what the complainant has said to them, about the new evidence.  In particular, there is no affidavit from the complainant:

(a) as to whether she adheres to her evidence that she flew with the applicant to Port Moresby on two occasions in 2001;

(b) addressing the evidence that she remained in Port Moresby between 10 August and late September 2001;

(c) addressing the evidence of her cousins that she admitted to having fabricated the story against the applicant.

[39]  Accordingly, on the current state of the evidence there are reasons for serious concern that the complainant concocted a story about a second flight with the applicant to Port Moresby in September 2001, and staying with him at Korobosea on the night of their arrival, and has admitted to fabricating the allegation that she was raped by the applicant.

[40]  Consideration of the applicant’s prospects falls to be determined in a case in which he is nearing the end of his custodial sentence.  If the new evidence commands acceptance at the hearing of the appeal, then the applicant is likely to have his conviction set aside.  By that time, it is likely that the custodial part of his sentence will have been substantially served.  These constitute exceptional circumstances and justify the granting of bail.

[41] On the hearing of the application, the Court indicated that any grant of bail would be subject to conditions requiring the applicant to surrender any passport to the respondent (if this has not already been done) and that the applicant not directly contact potential witnesses.  The applicant’s counsel did not oppose the imposition of such conditions.  The respondent’s counsel did not seek additional conditions.

Disclosure

[42]  The applicant maintains that the AFP has information demonstrating that he is innocent of the charge of which he has been found guilty, and that the prosecution of him is not bona fide.  His affidavit sworn 6 May 2009 outlines concerns regarding the way in which the AFP undertook investigations and failed to undertake inquiries which, if undertaken, would have assisted the applicant in defending himself.  For instance, civil aviation records were not available at trial to support the contents of the applicant’s log book and his evidence concerning the flights that he undertook in September 2001. 

[43]  A complaint of the alleged non-disclosure of a witness statement of Ms Koni Kimbaimu is without foundation.  It was disclosed in July 2005.  Complaint is also made about the failure of the AFP to respect recent requests that certain witnesses only be interviewed in the presence of a solicitor. 

[44]  On the basis of complaints concerning the AFP’s conduct of the case the applicant sought an order that the respondent file and serve an affidavit sworn by the arresting officer "setting out in full the activities the AFP has engaged in in this matter including the activities of the Transnational Crime Unit, such affidavit to include all running sheets, diary entries, details of all statements taken in relation to my matter".

[45]  We are not persuaded that such an order should be made.  The reference of the case does not provide the occasion for the Court to conduct a wide-ranging inquiry into the conduct of the prosecution or of the AFP.  Certain aspects of the investigation and the prosecution about which the applicant complains may be the subject of evidence and submissions if, upon consideration, they support the conclusion that there has been a miscarriage of justice.  They do not justify the making of an order of the kind requested. 

[46]  Such an order is apt to delay the hearing and determination of the appeal.  The applicant has not shown that such an order is appropriate in the circumstances.  It remains for the applicant to establish that there has been a miscarriage of justice.  The respondent is expected to provide appropriate disclosure.  If, in order to prepare his case the applicant requires an order of this Court in relation to disclosure of specific matters then an application for such an order may be entertained. 

[47]  In short, the applicant has not established grounds for an order of the kind sought in his application and an affidavit "setting out in full" the activities of the AFP and all documents in relation to the matter would delay the hearing and determination of the matter.

Directions as to further conduct

[48]  The submissions of the applicant canvassed the possibility of the evidence of the witnesses Tahuni Tapari, Diane Tapari and Moi Tapari being taken by video link from video conferencing facilities at the Australian High Commission in Port Moresby on 19 June 2009.  Some discussion has occurred between the legal representatives for the applicant and the officers of the respondent.  The respondent is prepared to assume responsibility for the cost of the facilities associated with the video link, including the cost of staff of the High Commission required to escort witnesses to the High Commission.  However, it is not prepared to pay for the costs incurred by witnesses including their costs of travel.  The respondent does not oppose the application for the evidence of these witnesses to be taken by video link.

[49]  The Court is not presently in a position to make a direction for the evidence of these or any other witnesses to be taken by video link.  The extent to which their evidence will be controversial, the extent to which challenges will be made to the credibility of witnesses and the likely duration of their evidence is unclear.  These matters may depend, in part, upon whether and the extent to which the complainant disputes the new evidence, a matter about which the respondent was not in a position to make submissions.

[50]  The taking of evidence by video link is but one part of a broader issue concerning the future conduct of the matter.  Issues requiring early resolution include:

(a)the documents upon which each party intends to rely;

(b)the witnesses who will give new evidence;

(c)whether each of these witnesses is required for cross-examination;

(d)whether that cross-examination can effectively be undertaken by video link, particularly if the credibility of a witness is in issue or a witness is required to address a significant volume of documents;[19] and

(e)the likely duration of the hearing.

These matters call into question whether the matter can be ready for hearing by 19 June and, if so, whether the hearing can be concluded on that date.

[51]  The applicant’s written submissions appear to contemplate reliance upon evidence in addition to the transcript of the trial and the exhibits tendered at it and the recently-sworn affidavits of Tahuni Tapari, Diane Tapari, Moi Tapari, Willie Kalani, Naomi Kalani and the applicant.  They appear to contemplate reliance upon certain evidence which was not adduced at trial in order to demonstrate a circumstantial case that the applicant’s former wife, Raina Martens, was instrumental in orchestrating a false allegation against the applicant.  The applicant’s submissions refer without any specificity to other evidence that is said to prove that he has been the victim of a conspiracy to pervert the course of justice.  Reference is made to an intent to obtain further "defence evidence".

[52]  The proper and timely disposition of this matter requires the prompt identification of the evidence upon which the parties intend to rely at the hearing.  Presently, the respondent and the Court are left to guess about the evidence that the applicant proposes to rely upon at the hearing.  The applicant and the Court are left to guess whether the respondent intends to call new evidence from the complainant and other witnesses and, in particular, what the complainant’s response is to allegations that she has admitted that she made up the story against the applicant.

[53]  Counsel for the applicant suggested that some of the problems associated with preparation for the hearing arise from the applicant’s lack of resources.  No evidence was placed before the Court concerning his resources.  However, if as was suggested, the applicant lacks resources to adequately prepare and conduct the appeal, then he should apply for legal aid without delay.

[54]  The proper and timely conduct of the matter warrants a direction that the legal representatives of the parties confer and submit proposed directions for the further conduct of the matter, including any proposals for the taking of evidence by video link.  Those proposed directions should be submitted by 4.00 pm Thursday 4 June 2009, following which the matter will be listed by the Court for directions on Friday 5 June 2009.

Other Matters

[55]  The Court indicated at the hearing of the matter on Thursday 21 May 2009 that it wished to give consideration to the applications and expected to give its judgment on Tuesday 26 May.  No application was made by the respondent to submit further material.

[56]  On Monday 25 May 2009 the respondent sent a letter to the Registrar enclosing "for the information of the Court" a statement taken from the complainant by an AFP officer on Sunday 24 May 2009.  No application was made to the Court to re-open the hearing and for the statement to be accepted into evidence at this late stage.  In the circumstances, the Court's judgment is based on the material that was before it on the hearing, and reference is not made in these reasons to the contents of the complainant's statement dated 24 May 2009.

Orders

[57]  The orders of the Court will be:

1. The applicant be admitted to bail upon his own undertaking in respect of the charge that between 10 and 16 September 2001 at Port Moresby in the Independent State of Papua New Guinea he, an Australian citizen, while outside Australia, engaged in sexual intercourse with a person who was under 16, contrary to s 50BA of the Crimes Act 1914 (Cth), such undertaking being conditioned that:

a. the applicant shall surrender any passport in his possession, power or control to the Office of the Commonwealth Director of Public Prosecutions in Cairns, and shall not apply for any travel document without the prior written consent of the Commonwealth Director of Public Prosecutions;

b. the applicant shall not directly contact any potential witnesses.

2. The legal representatives of the parties confer and submit to the Court by 4.00 pm Thursday 4 June 2009 proposed directions for the further conduct of the matter, including any proposals for the taking of evidence by video link.

Footnotes

[1] R v Martens [2007] QCA 137.

[2] (2009) 174 FCR 114 esp at [13] - [40].

[3] (1971) 125 CLR 447.

[4] (1971) 125 CLR 447 at 462.

[5] (1971) 125 CLR 447 at 467 per Gibbs J, quoting Williams v The King [No 2] (1934) 50 CLR 551 at 560. See also at 453 per Barwick CJ, at 457 per Menzies and Windeyer JJ and at 460 per Owen J.

[6] Or the Queensland Director of Public Prosecutions.

[7] See Grierson v The King (1938) 60 CLR 431 at 435; R v MAM [2005] QCA 323 at 3 – 4; R v Nudd [2007] QCA 40; R v Ali [2008] QCA 39.

[8] (2005) 224 CLR 125 at 131 [10].

[9] [2008] 2 Qd R 353 at [12] (citations omitted).

[10] [2009] QCA 111 at [33] – [42].

[11] [2003] 142 A Crim R 241 at 242 [4] – [5].

[12] [1986] 1 Qd R 303.

[13] [1986] 1 Qd R 303 at 311-312; [2003] 142 A Crim R 241 at 244 [11].

[14] [2003] 142 A Crim R 241 at 243 [7].

[15] [1998] 3 NZLR 555.

[16] [1998] 3 NZLR 555 at 560.

[17] (1983) 153 CLR 514.

[18] (1983) 153 CLR 514 at 519.

[19] Cf s 50EA of the Crimes Act 1914 (Cth) which deals with the giving of evidence by video link in a proceeding for an offence against Part IIIA.

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Editorial Notes

  • Published Case Name:

    R v Martens

  • Shortened Case Name:

    R v Martens

  • Reported Citation:

    [2010] 1 Qd R 564

  • MNC:

    [2009] QCA 139

  • Court:

    QCA

  • Judge(s):

    Keane JA, Fraser JA, Applegarth J

  • Date:

    26 May 2009

Litigation History

EventCitation or FileDateNotes
Primary JudgmentSC83/06 (No citation)30 Oct 2006Martens was convicted after a six day jury trial of one count of having sexual intercourse with a person under 16 years while outside Australia. He was sentenced to five and a half years imprisonment with a non-parole period of three years: Jones J.
Primary Judgment[2011] QSC 6530 Mar 2011Martens brought a claim against Stokes in her capacity as an officer in the Australian Federal Police for malicious prosecution amongst other matters. Stokes and the Commonwealth successfully applied for the claim and statement of claim to be struck out: Jones J.
QCA Interlocutory Judgment[2009] QCA 139 [2010] 1 Qd R 56426 May 2009Application for bail pending determination of the Cth AG reference; new evidence presented against credibility of complainant; application for bail granted on conditions: Keane and Fraser JJA and Applegarth J.
QCA Interlocutory Judgment[2012] QCA 7127 Mar 2012Costs orders consequent upon decision in [2012] QCA 36: McMurdo P, White JA, M Wilson AJA.
QCA Original Jurisdiction[2009] QCA 351 [2011] 1 Qd R 575; (2009) 262 ALR 106; (2009) 216 A Crim R 1; (2009) 235 FLR 37113 Nov 2009Reference by Cth Attorney-General pursuant to s 672A Criminal Code; by majority concluding that the Commonwealth Attorney-General is empowered to enliven Court of Appeal's jurisdiction under s 672A(a) Code; fresh evidence has demonstrated that the conviction is unreasonable; appeal allowed and conviction quashed: Muir, Fraser and Chesterman JJA; Fraser JA dissenting on jurisdictional question
Appeal Determined (QCA)[2007] QCA 13720 Apr 2007Appeal from conviction and sentence on 30 Oct 2006. No error in trial directions and open to the jury to convict; sentence not manifestly excessive; appeal against conviction dismissed and application for leave to appeal sentence refused: McMurdo P, Holmes JA and Cullinane J
Appeal Determined (QCA)[2012] QCA 36 [2013] 1 Qd R 13602 Mar 2012Appeal from [2011] QSC 65. Appeal allowed. Set aside the order below striking out the claim and statement of claim. Instead, order that the statement of claim be struck out. Order that the appellant have leave to file and serve a further statement of claim: McMurdo P, White JA, M Wilson AJA.

Appeal Status

Appeal Determined (QCA)

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