SUPREME COURT OF QUEENSLAND

[1]  FRASER JA: I agree with the reasons for judgment of McMeekin J and the order proposed by his Honour.

[2]  WHITE JA: I have read the reasons for judgment of McMeekin J and agree with those reasons and the order proposed by his Honour.

[3]  McMEEKIN J: The applicant seeks an extension of time in which to appeal his conviction on 7 July 2010 on a count of dangerous operation of a motor vehicle.  He was tried before Judge Dodds and a jury.  He was sentenced to 18 months imprisonment with a parole release date set at 7 April 2011.

[4] On 29 July 2010 the applicant filed an application for leave to appeal against his conviction and sentence.  On 29 October 2010 the applicant filed a Notice of Abandonment of the appeal against conviction.

[5] This Court dismissed the application for leave to appeal against sentence on 7 December 2010.  The applicant was then legally represented.

[6] On 5 August 2011 the applicant filed this application. 

Relevant Principles

[7] In circumstances where there has been an abandonment of a previously filed Notice of Appeal the application necessarily has to be considered by reference to the considerations relevant to an application to set aside the abandonment and reinstate the appeal: R v Basacar [2008] QCA 285.

[8] An application to revive an abandoned appeal is governed by r 70 of the Criminal Practice Rules 1999 which provides:

"70Abandoning appeal

(1)An appellant, at any time after starting an appeal, may abandon it by giving to the registrar a notice of abandonment of appeal.

(2)The appeal is taken to be dismissed by the court when the notice is given to the registrar.

(3)However, if the court considers it necessary in the interests of justice, the court may set aside the abandonment and reinstate the appeal."

[9] The question therefore is whether, in terms of r 70(3) the court "considers it necessary in the interest of justice" to set aside the abandonment and reinstate the appeal.  In determining that question the decisions of this court in Basacar and R v Marriner [2007] 1 Qd R 179 require three things to be considered.  They are:

(a)The reason for the abandonment of the appeal in the first place;

(b)The explanation for any delay that has occurred in the meantime; and

(c)The prospects of success of the appeal. 

[10] There is the further consideration here that the applicant has delayed so long that he has served his sentence and is now released on parole.  The approach that the Court ought to take in these circumstances was explained in R v DAQ [2008] QCA 75.  That case involved an application for extension of time in which to appeal in circumstances where there had been substantial delay, a deliberate decision not to appeal, and a change of mind only after serving the bulk of the sentence and the applicant had become eligible for parole.  It was said by Keane JA that there had to be a “compelling argument that a miscarriage of justice involving the conviction of an innocent person had occurred”[1] before such an application could be allowed.  Public interest in the finality of the processes of the criminal justice system required that approach.  Fraser JA and Mackenzie AJA agreed. 

[11]  The same considerations should apply here.

Submissions on Abandonment and Delay

[12]  The applicant is now self represented.  His material filed before the hearing of the application essentially failed to address any relevant issue.  The applicant asserted that he received advice from a person that the Court eventually identified as an employee of the Legal Aid Office that he did not need to put more expansive material before the Court.  It seems highly unlikely that such advice would have been given – it is more probable that the applicant has misunderstood the advice.  Nonetheless, the applicant was permitted to tender material that he wanted to rely on and offer such explanations as he wished.

[13]  What follows was largely advanced from the bar table.

[14]  As to the explanation for the abandonment of the appeal, the applicant informed the Court that he was advised by Mr Heaton of the Legal Aid Office that his appeal against conviction had no sufficient prospects of success on the material available and ought not to be pursued.  The applicant took that advice.  That advice was not shown to be unreasonable or based on any misunderstanding, nor was the acceptance of it said to be based on any misunderstanding.

[15]  A Notice of Appeal was required to be filed – and was filed - about 12 months ago.  The delay is approximately seven months from the time of abandonment of the appeal to the filing of this application.  The period of delay is therefore reasonably substantial.

[16]  To the extent that there is an explanation for the delay it is that the applicant was imprisoned and so unable to gather the evidence that he needed against a background that his solicitors withheld his file from him.  While it can be readily accepted that it would be difficult to gather fresh evidence when one is imprisoned there appears to have been no attempt to put in place any alternative method of gathering evidence if indeed there was some dissatisfaction about the evidence presented to the jury, nor any explanation of why that could not have been done.  At least until the abandonment of the appeal against conviction, and probably up until the hearing of his application to appeal his sentence, the applicant could have accessed legal advice on these matters.

[17]  Four months passed between the applicant’s release from prison and the filing of the present application.  No detail is offered of what was done in that time.  The applicant asserts that he received his file on 7 July 2011[2].  It is not clear why it was necessary for the applicant to have his file before he could go about preparing his appeal nor, having seen the file, what material on that file has assisted the applicant in understanding the steps that he needed to take.

Grounds of an Appeal

[18]  As to the prospects of success, the grounds of the proposed appeal are detailed in the Notice filed as: “Police and victim have not told the truth to the judge and jury which can be proven now, which has left my defence unable to establish a case against the evidence.”  No particulars were then offered of the way in which the police and the victim had not told the truth.  The applicant was permitted to expand on his grounds in the course of the hearing.

[19]  To put the applicant’s complaints into context it is necessary to summarise the competing versions.

The Case Led at Trial

[20]  The prosecution case essentially was that following a dispute between the applicant and the complainant the applicant drove his car in such a way that he pursued the complainant, who was riding on a motorcycle, in an aggressive manner for a short distance on the roadway and then up on to the grass verge of the road colliding with the motorcycle.

[21]  The applicant’s version, given in evidence, was that the complainant had bumped him with his motorcycle, subsequently collided with his car, apparently deliberately, and then kicked his car when he had stopped to ask the complainant for his details before the complainant then drove off.  The applicant claimed that he then set off to go to the police station to report the matter, deviated to a petrol station, happened to see the complainant and decided to follow the complainant in order to get his details and in doing so drove into a driveway, not onto the grass verge, to prevent the complainant driving down the grass verge and away.  On this account any damage to the motorcycle was caused by the complainant driving into a hedge.

[22]  Evidence was given by four witnesses independent of the complainant and the applicant that substantially corroborated the version given by the complainant and discredited the version given by the applicant. 

[23]  The trial judge in the course of sentencing the applicant commented: “I listened to your evidence carefully regarding what you say occurred in Third Avenue; I do not accept it.  I’m quite satisfied you did not tell the truth.  Unsurprisingly, the jury needed little time to find you guilty.  I agree.” It was plainly a strong prosecution case.

The Applicant’s Submissions

[24]  In the course of the hearing the applicant tendered three documents – two photographs of the subject motor cycle and a Bill of Sale of that motorcycle.  The applicant made these points:

(a) the complainant lied in asserting that he held a license to ride the motor bike on which he was on when the incident the subject of the charge occurred. That was so because the motorcycle in fact had a cubic capacity of 100cc for which a motorcycle class license was required and not 50cc as was shown on the side of the motorcycle for which a standard motor vehicle licence was sufficient;

(b) the complainant had misrepresented the cubic capacity of the subject motor bike by altering the markings on it. This was shown by the Bill of Sale tendered. This concealed the fact he was riding without a license;

(c) the prosecution failed to disclose photographs until towards the end of the trial and the defence did not have sufficient time to examine and understand them. It was said that the photographs apparently showed a minimal degree of damage to the motorcycle and inconsistent with the complainant’s version;

(d) a police officer lied in alleging that he carried out license checks;

(e) measurement of tyre tracks shown in a police photograph and said to have been made by the applicant’s vehicle on a grass verge were wider than those of the car the applicant was driving at the relevant time;

(f) a resident in the area where the subject incident occurred advised the applicant, after his release from prison, that he had seen the complainant’s father drive onto the grassy area where the photos of the tyre tracks were taken in order to take away the subject motorcycle.

Discussion

[25]  It can be immediately seen that the complainant’s license status, his honesty in portraying “50cc” on the side of the motor cycle, and the actual cubic capacity of the motorcycle were only of peripheral, if any, relevance.  There is no suggestion that he did not have the competence to ride the motorcycle nor was it in issue at the trial that any inadvertence or incompetence of the complainant could in some way be relevant to what occurred.

[26]  As it happens the applicant’s counsel did explore the complainant’s standing to hold a license, albeit subsequent to the relevant incident, and gained from him admissions that he had driven whilst unlicensed and had lost his license for non payment of fines.[3]  If the intent was to establish that the complainant was not the most responsible of drivers then the point was made.

[27]  The complaint that photographs were not disclosed in a timely way is not supported by the transcript of the trial.  No complaint was made by defence counsel of any such thing.  Far from being introduced late, photographs of the motorcycle were introduced through the first witness called – the complainant.  Further photographs were put to the complainant by the applicant’s counsel in cross examination.[4]  The complainant was cross examined about the degree of damage.  It was expressly put to him that the photographs did not show damage to the frame of the motorcycle consistent with his account.[5]  Further photographs of the motorcycle were introduced through the second witness called, the constable who attended at the scene.  He too was cross examined about the degree of damage.[6]  The jury were very much alive to the issue.

[28]  There was no evidence to support the assertion that the police officer lied about carrying out license checks.  The officer did assert that he carried out such checks.  It would be highly surprising if he did not.  But he gave no evidence about the result of those checks as he was not asked to.  Not only is the submission wrong but all this seems quite irrelevant to the issues.

[29]  The final two matters referred to concern the width of tyre tracks as shown on photographs taken by investigating police officers and the alleged movement of vehicles on the grass verge after the incident.  The only possible relevance of these two matters is to refute an argument that the jury were asked to draw an inference from tyre marks appearing on the photographs that were tendered.

[30]  The applicant did not identify the photographs that he referred to.  The evidence does not show that the photographs tendered do demonstrate such marks.  I note that the photographs tendered at trial of the scene were taken towards the end of 2009 and long after the relevant events.[7]  None were taken of the scene at the time.[8]

[31]  The jury were not asked to draw any inference from any tyre marks, if any do in fact appear on the photographs tendered.  Given the lapse of time between the events and the taking of the photographs, no sensible person would draw any inference that any tyre marks appearing were associated with movement of the applicant’s vehicle on the night.

[32]  Plainly it is irrelevant that the applicant might be able to show through evidence unexplored at trial that another vehicle came onto the grass verge after the subject events.  That has no bearing on whether the applicant did so on the subject evening or not.

[33]  Even if the applicant could show that the evidence he claims to have is somehow relevant, and he has not, he still faces the considerable hurdle of demonstrating why it is that such evidence should now be received.  With reasonable diligence it could have been led at trial.  And even if believed it could not affect the verdict.  In accordance with well established principles this Court would not now receive the evidence:  R v Gallagher (1986) 160 CLR 392.

[34] The various matters submitted by the applicant come nowhere near a “compelling argument that a miscarriage of justice involving the conviction of an innocent person [has] occurred.”

[35] In the absence of any satisfactory explanation for the abandonment of the appeal, the inadequacy of the explanation for the delay and, most cogently, the failure to demonstrate any miscarriage of justice it is demonstrably not in the interests of justice that the abandonment be set aside and the appeal reinstated.

Proposed Order

[36]  The application should be refused.