R v PAP[2013] QCA 288

HENRY J:  On 5 March 2013 the applicant pleaded guilty in the District Court to three counts of indecent treatment of a child under 12 years, three counts of indecent treatment of a child under 16 years and one count of rape.  The applicant was sentenced to concurrent sentences of two years imprisonment on each of the six indecent treatment of a child offences and four years imprisonment for the rape offence.  The sentencing judge ordered that the terms of imprisonment be suspended after the applicant had served 18 months imprisonment for an operational period of five years.

The offences were committed against the applicant’s granddaughter over a period of about six years.  The offence of rape involved digital penetration of the child’s vagina when she was about 13 years of age.  The other offending conduct included the applicant kissing the child’s breasts and body, licking her vagina, having her take hold of the applicant’s erect penis and rubbing it, touching her mouth with his penis, rubbing his erect penis against her vagina and touching her vagina with his fingers.

On 11 July 2013, the applicant filed an application for an extension of time within which to appeal and an accompanying application for leave to appeal against his convictions.  The applications were received more than three months out of time.  At the time of the hearing of the applications, the applicant has not filed or served an outline of argument with respect to them.  The grounds of the applications therefore fall solely for consideration by reference to their content and of course the record of proceeding before the Lower Court.

With respect to the application for extension of time, the applicant asserts he received a letter after the lapse of the appeal period, notifying him that at the time the offences occurred he was working in the Northern Territory.  The application for leave to appeal against his convictions heralds two potential grounds of appeal.  Firstly, that he was told by his solicitor to enter a plea of guilty and secondly, that he has an alibi.  In determining whether the applicant should be granted an extension of time within which to appeal, the court should consider whether any good reason has been shown by the applicant to account for the delay in filing his application and consider whether the interests of justice favour the granting of the extension - see R v Tait [1999] 2 Qd R 667 at 668.  An applicant for an extension of time may therefore expect to be granted an extension in circumstances where there is an arguable case, the applicant’s appeal may succeed - see R v DAQ [2008] QCA 75 at [10].

At the time of the hearing of the application the applicant failed to advance any sufficient explanation or reason for the delay in filing his application for an extension of time.  His application refers to a letter purportedly received by him between the months of April and May of 2013, alerting him to a potential alibi.  However no explanation as to why it took the applicant a further two months from receipt of the letter to file his application for extension of time was provided.

In the circumstances, and in the absence of any outline or argument from the applicant or other material, such as the letter, it is difficult for the court to be satisfied the applicant has shown good reasons, or any reasons, for the delay in filing his application for an extension of time.

As to the potential merits, a ground of appeal raised by the applicant in relation to his application for leave to appeal against his convictions was that he was told by his solicitor to enter pleas of guilty.  The person named in the notice document as his solicitor was in fact his barrister.  Perusal of the sentencing remarks reveals that at sentence the applicant’s counsel advised the sentencing court that the applicant’s native language was Torres Strait Islander Creole.  Counsel advised that the applicant’s solicitor had attempted to obtain an interpreter or translator but had been unsuccessful because there were no such accredited interpreters or translators.  The applicant’s solicitor, the Aboriginal and Torres Strait Islander Legal Service, had therefore arranged for one of their employees who spoke Torres Strait Islander Creole to assist the applicant throughout the sentence.  Despite the applicant’s counsel indicating a bulk arraignment would be possible, as the nature of the charges had been explained to the applicant, the sentencing judge took the additional care of having the applicant arraigned on each of the seven counts separately, “out of an abundance of caution”.  The applicant pleaded guilty to each of the counts and when the allocutus was administered, indicated he had nothing to say in answer.  His counsel addressed the court on his behalf as to sentence.

To successfully advance this potential ground of appeal, the applicant would need to show some prospect that his guilty pleas would be set aside on the basis of a miscarriage of justice taking place at the time the sentencing judge accepted and acted upon the guilty pleas - see R v Gadaloff [1999] QCA 286.  As submitted by the respondent, the applicant entered pleas of guilty in relation to the charges in open court in what appears to be the exercise of free choice after receiving legal advice.  Furthermore, the applicant was represented at all times throughout the proceedings and assistance was provided to him to ensure he understood the sentence process.

Counsel for the applicant also advised the sentencing judge that the applicant had been taken through each of the charges with the assistant employee from ATSILS and he had explained the nature of the charges to the applicant.  For these reasons it cannot be said that any miscarriage of justice occurred so as to form a basis for the setting aside of the applicant’s pleas of guilty, even if leave were given.

Turning to the second potential ground of appeal, the applicant’s purported alibi, the applicant makes reference in his application, to a letter he received from a Mr Austin, allegedly a justice of the peace in Umagico.  The letter is said to have notified the applicant that he was working in the Northern Territory at the time the offences took place.

The respondent points out that the offending of which the applicant was ultimately convicted occurred over a substantial period of time.  The respondent refers to the sentencing remarks canvassing references to other offences, albeit not of a sexual nature, referred to in the applicant’s criminal history.  They included offences in 2000 and 2003 which would, if the alibi canvassed all of the offending in question, necessarily have had to have occurred at a time he also had an alibi, because he was allegedly in the Northern Territory.  Plainly that could not be correct.  This strongly suggests the applicant was likely in Queensland at the time of the offences being committed and significantly diminishes the reliability of the purported alibi allegedly contained in Mr Austin’s letter.  However at the time of the hearing of the application for leave, the letter has not been filed in support of the application or tendered.

Further, no evidence has been advanced as to why the applicant, who would be in the best position to know he was not guilty because he was elsewhere when the offences allegedly occurred, chose to plead guilty rather than giving a notice of alibi, going to trial and there raising his supposed alibi.  These are all matters plainly he could have discussed with his counsel prior to making the decision to plead guilty.  In short, nothing has been advanced to suggest there is any evidentiary substance to this potential ground.

For the reasons outlined, the applicant has not demonstrated that any miscarriage of justice that could justify his pleas of guilty being set aside occurred.

Further, in the absence of any outline or argument, any explanation for the delay in filing his application beyond that mentioned and any reliable evidence or indeed any evidence at all supporting his purported alibi, the applicant has not demonstrated he has any prospect of success in relation to his appeal.

In the circumstances I would refuse the application for an extension of time within which to appeal.

THE PRESIDENT:  I agree.

MULLINS J:  I agree.

THE PRESIDENT:  The order is the application for an extension of time is refused.