SUPREME COURT OF QUEENSLAND

[1] MUIR JA: I agree with the reasons of Fraser JA and with the order he proposes.

[2] FRASER JA: On 23 January 2009, after a five day trial in the District Court, the applicant was found guilty of four offences: burglary, serious assault, deprivation of liberty and arson of a building.  On the same day he was sentenced to five years imprisonment for the arson offence and to shorter, concurrent terms of imprisonment for the other offences.  The judge fixed a parole eligibility date of 29 March 2010.  That took into account 483 days spent by the applicant in custody before he was sentenced.  (That pre-sentence custody could not be declared as time served under the sentence because the applicant was then in custody also in relation to other offences: see Penalties and Sentences Act 1992, s 159A(1).) 

[3] On 28 April 2009 the applicant filed a Notice of Appeal against his convictions and an application for an extension of time in which to appeal. 

Application for an extension of time

[4] In R v Tait [1999] 2 Qd R 667 at 668 this Court observed that in considering an application for an extension of time in which to appeal the Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension.  When it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant's proposed appeal, which the Court will then take into account in deciding whether it is a fit case for granting the extension. 

[5] The applicant argued that his delay was attributable to an illness which led to his hospitalisation immediately after he was sentenced and to his being in a coma for 21 days.  I note in this regard that the trial judge observed in the course of sentencing that the applicant suffered from "a flotilla of medical conditions including type 2 diabetes, hypertension, acute pulmonary oedema, ischaemia, peripheral vascular disease, pulmonary hypertension and other conditions particularly relating to your breathlessness".  In support of the application for an extension the applicant made a statutory declaration, dated 25 March 2009, which was perhaps itself intended to constitute an application for an extension of time.  The applicant declared his wish to apply for an extension of time to appeal, that he had been seriously ill for six and a half weeks, and that he had just come out of hospital a few days ago.

[6] Although I accept the submission for the respondent that assertions of this kind should in the ordinary course be supported by medical evidence, I would accept the explanation advanced by the applicant for his relatively short delay.  If the applicant demonstrated that he had a reasonably arguable appeal it would be appropriate to grant an extension of time: see R v DAQ [2008] QCA 75 at [10].

[7] The Notice of Appeal states that the grounds of the proposed appeal are that perjured evidence was used as the primary source for conviction and that the applicant is innocent of the crime.  The applicant elaborated upon those grounds in extensive written submissions (which included arguments in the form of editorial comments written on the transcript of the proceedings at trial) and in oral submissions. 

[8] For reasons to which I now turn, I consider that the applicant has failed to demonstrate any reasonable prospect of success in his proposed appeal.

Summary of the case

[9] The most serious offence of which the applicant was convicted was arson on the night of 28 September 2007 of the house that the applicant owned jointly with his wife.  The house was completely destroyed in the fire, together with Mrs Sinclair's extensive collection of antiques, many of which had great sentimental and financial value for her and which she had collected over a lifetime.

[10] In summing up to the jury the trial judge said that the prosecution case, in brief, was that in the context of a failed marital relationship, characterised in March and June 2007 by destructive and violent behaviour towards Mrs Sinclair and her property, the applicant went to the house sometime prior to 9.00 pm on 28 September 2007 and broke in whilst he was armed with a loaded rifle. 

[11] The prosecution relied centrally on the following evidence of Mrs Sinclair.  In March the applicant threatened her and destroyed some paintings and in June the applicant tried to strangle her with an extension cord, held a rifle to her stomach and pulled the trigger.  At about 4.45 pm on 28 September 2007 Mrs Sinclair left the house secured and locked.  In the seven years in which she and the applicant had lived at the house there had never been an electrical fire or any problems with the electrical fittings or appliances, and no burning in the house of any kind.  When she returned home at about 7.45 pm the house was still locked but, after she had entered, she saw broken glass in a door.  The applicant came from the family room with a large rifle up to his shoulder and said words to the effect, "You didn't expect…to see me, did you?"; and when she enquired how he had got in he said, "I broke a door".  The applicant then told his wife to sit down as they had to talk. Although the complainant had some opportunities to leave the house, for example when she found two petrol tins in the family room and put them outside in the bushes, she did not leave because she was concerned about the applicant and also about his threats to the house.  During their discussion the applicant sometimes pointed the rifle at her and told her not to antagonise him.  The applicant told her he had put petrol and bullets in every room but she could not smell petrol. 

[12] Mrs Sinclair gave evidence that at one stage she grabbed the gun which the applicant had rested on a chair and threw it over the veranda, but he rushed downstairs and retrieved it.  When the applicant went into the bathroom at around midnight she left and went to someone else's house.  Shortly thereafter, on the prosecution case within about ten minutes, the house was alight.  The prosecution case was that once the complainant had left and the applicant was the only person remaining in the house he set fire to the house in some way.

[13] Mrs Cunningham, who lived across the road from the house, said that "round about the 6 o'clock time" she heard glass smashing and the noise came from the direction of the applicant and complainant's house.  In cross-examination she said that the time "was round about 6 o'clock…probably more after six than before". Various witnesses from the caravan park where the applicant lived gave evidence to the effect that his car left there at around 7.00 - 7.30 pm.  There was evidence from a service station attendant that he saw a car matching the description of the applicant's car returning towards the caravan park at about 12.50 am.

[14] The prosecution also relied upon what were contended to be lies told by the applicant in police interviews.  In the applicant's first police interview on many occasions he denied having been present at the house at all on the day of the fire.  He gave many reasons why he could not have been at the house.  The applicant was then being interviewed about a different topic and it was he who introduced the question of whereabouts on the night of the fire.  In the applicant's second interview he admitted that he was present in the house on that night.  He said that he went to the house at about 9.00 pm at the invitation of his wife.  Initially he said that he had nothing with him when he entered the house, but later in the interview he said that he had the rifle which, he also admitted, was loaded when he returned to the house.

[15] The prosecution relied also on Mrs Sinclair's evidence that the applicant had earlier made numerous threats to burn the house to ensure that her daughters did not get anything out of it.  A family friend, Mr Wallace, gave evidence that he heard the applicant threaten to burn the house on an occasion in 2002 and on occasions between 2004 and 2005.

[16] The applicant did not give or call evidence.  The trial judge summarised the defence case as being that the applicant went to the house by invitation and that, up until he entered the shower recess around midnight, all was amicable.  The trial judge observed that the defence case, based on the applicant's third interview with police, was that he and his wife "were just having a nice friendly chat".  The applicant denied having pointed the loaded gun at his wife or having made threats.  In relation to the arson charge, the applicant said in his second interview with police that when he emerged from the shower the fire was lit in two places.  He denied lighting it.  In one of the police interviews the applicant said that he left the house and went straight back to the caravan park immediately after seeing that the fire had started.  In the same interview the applicant said of the suggested lies in his first interview that he was confused when he first spoke to the police; he was terrified of saying that he was there because he believed that he had been set up by his wife.  As to the alleged discreditable conduct in March and June relied upon by the prosecution for motive, in the course of summarising the arguments advanced for the applicant the trial judge observed that the applicant, through cross-examination and as part of the defence case, denied that any of those incidents occurred. 

The applicant's arguments

[17] The applicant argued that the evidence of Mrs Sinclair that he had committed discreditable acts in March and June should not have been used against him.  He described Mrs Sinclair's evidence as "lies" and he gave various reasons, including health reasons, in support of his assertion that he did not commit those discreditable acts. 

[18] It was, however, for the jury to determine questions of that kind.  The trial judge made it very plain in summing up that Mrs Sinclair's evidence was very important, in some respects vital, to the prosecution case.  The judge gave conventional directions concerning the way in which the jury should go about assessing the evidence.  In relation to Mrs Sinclair's evidence of the alleged discreditable conduct of the applicant relied upon as going to motive, the judge directed the jury that the evidence of motive could not be used by the jury to decide whether the prosecution had proved the four offences, but the existence of a motive could be an important factual issue in a circumstantial case such as this: "If there is no motive, then what might otherwise seem inexplicable becomes explicable.  Obviously the existence of a motive without anymore would not be sufficient to found a guilty verdict."  The trial judge added that because the applicant had not been charged with any offence arising out of the incidents in March and June the jury had to be very careful not to conclude, if it accepted the evidence that the applicant was a person with a propensity or a tendency to do violent acts towards his wife or her property, that he was therefore the sort of person who was likely to commit the offences the jury was considering.  The judge elaborated upon that direction, explaining how unfair that process of reasoning would be.  In that explanation the judge emphasised again that before the jury could find the applicant guilty of any charge it must be satisfied beyond a reasonable doubt that the charge had been proved by evidence relating to that charge. 

[19] In light of the evidence and those directions, there is no substance in the contention by the applicant that the Crown's subsequent decision not to proceed with charges of other alleged offences committed against Mrs Sinclair suggested that he had been the victim of a miscarriage of justice by the admission of her evidence about those matters.

[20] The applicant also contended that the evidence of Mrs Sinclair was perjury or inaccurate in many other respects including, for example, her evidence concerning the state of the negotiations between them for a property settlement, her evidence that he admitted to her that he had got into the house by breaking a door at the back, her evidence that he pointed the rifle at her, her evidence that he had told her that he had broken the glass in the doors in the bedroom, and her evidence denying the suggestion in cross-examination that she had told him that she would leave a backdoor open for him.  The applicant cited many other, similar examples, but in no case did he point to independent or apparently reliable evidence that demonstrated that in any material respect the evidence of the complainant was untruthful or significantly inaccurate.  These points again raised questions that were for the jury to decide.  As I mentioned earlier, the jury were given the conventional directions as to how it ought to go about its task, including warnings about speculating or theorising without any factual basis. 

[21] The applicant referred to the forensic evidence and contended that it demonstrated that there was a third person in the house that night, who presumably must have lit the fire.  However, the evidence to which he pointed was simply evidence that various tests did not detect matters such as the presence of accelerant, fingerprints, DNA and the like.  There was, for example, evidence of a blood stain near some broken glass and forensic evidence that it was not possible to determine whether or not the DNA matched that of the applicant.  The evidence to which the applicant pointed was incapable of supporting his proposition that it established that a third party was present. 

[22] The applicant referred also to the evidence of Mrs Cunningham, summarised above, which suggested that someone may have broken glass in entering the house at about 6.00 pm, whereas other evidence suggested that the applicant had not left his caravan park until well after that time.  It is, however, apparent from the transcript of the evidence, part of which I quoted earlier, that the evidence of Mrs Cunningham about the time she heard glass breaking was given in quite vague terms.  Again, it was for the jury to assess the significance of the conflict in this evidence for which the applicant contended.  Bearing in mind the notorious fact that witnesses' estimates of time when they have no particular reason to have noted the time are often unreliable, this conflict itself could not possibly be thought to require rejection of Mrs Sinclair's evidence. 

[23] The applicant referred also to his explanations for having told lies in the first police interview.  Again, the trial judge gave conventional directions about the use to which the jury might put that evidence.  The judge directed the jury that if it was satisfied that the applicant did lie about not being at the house on the night it could only use the evidence if it was satisfied of a number of matters; namely, that it was a deliberate lie (the judge elaborated upon various reasons why people tell untruths at times and, with reference to the evidence, why the applicant might have lied), that the lie directly concerned some event connected with the offence (about which the trial judge also elaborated), and that the applicant told the lie because he knew that the truth would implicate him in the commission of the offence.  In relation to the third point the trial judge pointed out that there might be many reasons why the applicant would have lied apart from consciousness that the truth would implicate him.  The trial judge summarised for the jury the explanation that had been given by the applicant in a subsequent interview for his earlier lies to the police.  Again, it was for this properly directed jury to assess this evidence.

[24] The applicant also contended that his legal representatives were incompetent.  In support of that proposition he relied upon their failure to use at the trial what he contended was a statutory declaration sworn on 25 August 2008 in which he set out in detail his version of events.  He referred also to what he contended was a "45 page statement" which, he said, one of his lawyers had told him had been left in the lawyer's office.  This material comprised only one of the applicant's versions of the various matters with which it dealt.  It included, for example, an assertion that Mrs Sinclair had told him that the insurance of the house was all under her name only, that she was going to have the house "torched", and that the applicant would get nothing from the insurance.  It accused her of lying in other respects, and it included statements abusing various people including Mrs Sinclair and her daughters.  The declaration asserted that the applicant saw his wife standing with a lighter in her hand after she had started the fire in the house.  It included numerous other self-serving statements. 

[25] There is no substance in the applicant’s argument that a miscarriage of justice occurred as a result of the failure of his lawyers in some way to use his statutory declaration and statement at the trial.  There is nothing to suggest that, to the extent that the evidence of the applicant reflected in those documents might have been useful to him, it was not properly put in cross-examination.  The applicant had the opportunity to give or call evidence at the trial and there is no evidence which suggests that his decision not to give or call evidence was other than his own voluntary and informed decision.  The applicant adduced no evidence to support his vague assertions that his legal representatives acted incompetently.

Conclusion

[26] The applicant did not contend that the summing up was not balanced and fair and nor did he contend that the trial judge failed to give the necessary and appropriate directions to the jury.  On the evidence which I have summarised, it was plainly open to a properly directed jury to be satisfied of the applicant's guilt beyond reasonable doubt.  In my opinion the applicant has not made out a reasonably arguable case that his proposed appeal could succeed.  I would therefore refuse his application for an extension of time within which to appeal.

Sentence

[27] The applicant has not filed an application for leave to appeal against sentence, or an application for an extension of time for that purpose, but in his written submissions he sought a reduction in sentence.  He argued that the reduction should be granted on compassionate grounds, as he is terminally ill and very frail.  He referred also to his contention that he had been a model citizen for almost 50 years, and that he was 70 years old this year. 

[28] On the verdicts of the jury the trial judge was well justified in characterising the applicant's conduct as being that of a "malevolent man with an arrogant disregard for the rights of your unfortunate wife".  As the trial judge also pointed out the applicant had not shown a scintilla of remorse.  It is not argued that the trial judge committed any particular error in the exercise of the sentencing discretion.  The sentence imposed was within the sentencing range suggested by R v Ball [2001] QCA 201. 

Order

[29] I would dismiss the application for an extension of time within which to appeal.

[30] WILSON J: The application for an extension of time should be dismissed for the reasons given by Fraser JA.