R v Williams[2016] QCA 204

SUPREME COURT OF QUEENSLAND

[1] FRASER JA:  I agree with the reasons for judgment of Philip McMurdo JA and the orders proposed by his Honour.

[2] GOTTERSON JA:  I agree with the orders proposed by Philip McMurdo JA and with the reasons given by his Honour.

[3] PHILIP McMURDO JA:  On 6 August 2014 the applicant was convicted by a jury of the attempted murder of his estranged wife.  At the commencement of the trial he had admitted that he had broken in to the flat where she was then living with their young child and, with a knife that he brought with him, stabbed her in the chest as she was lying in bed.  Those admissions came from his pleas of guilty to an alternative count of unlawfully doing grievous bodily harm, with intent to do so and a count of burglary by breaking, in the night, whilst armed.  His case was conducted by his then counsel upon the basis that the only issue for the jury was whether he had intended to kill the complainant.  The jury was satisfied of that fact and he was sentenced to a term of 15 years imprisonment with a concurrent sentence of seven years imprisonment for the offence of burglary.

[4] On 15 August 2014, the applicant filed a notice of appeal against conviction and an application for leave to appeal against sentence.  But he abandoned his appeal against conviction by filing a Notice of Abandonment on 23 February 2015.

[5] On 30 November 2015 the applicant, who was then represented by senior counsel, argued his application for leave to appeal against sentence.  After full consideration of the merits of that appeal, leave to appeal was refused by a judgment delivered on 18 December 2015.[1]

[6] Having abandoned his appeal against conviction, the applicant now seeks to reinstate it, applying for leave to do so pursuant to r 70 of the Criminal Practice Rules 1999.  Further, in the event that his conviction stands, he seeks to reagitate his challenge to his sentence.

[7] The facts of this case, as set out by the trial judge in sentencing the applicant, were as follows.  The applicant and the complainant married in February 2010 and separated in November 2011.  The complainant had the principal care of their young daughter.  The complainant began a relationship with another man which the applicant, despite the separation, sought to prevent.  In March 2012 the complainant obtained a domestic violence order against the applicant.

[8] Late at night on 14 October 2012, the applicant, armed with the knife, drove the long distance from his home to the vicinity of the complainant’s home.  He parked 200 metres away so as to conceal his approach and breaking in.  The complainant was asleep in her bedroom with their two year old child.  After being in the house for about five minutes, the applicant stood beside her bed and plunged the knife into her chest.  The knife penetrated her chest wall, causing her severe injuries which were life threatening.  The applicant then fled before, shortly afterwards, making a call from a public phone to his own mobile phone, in order to fortify a claim which he made to police that he had not been at the complainant’s house and had only then learnt of the attack.

[9] At first he lied to police about his whereabouts when the offence occurred.  But a few days later he confessed to stabbing the complainant.  He told police that he had done so in response to hearing in his own mind a voice telling him to stab her and that he was not in control of his actions.  The trial judge observed in his sentencing remarks that this claim of “some demon”, instructing the applicant to do what he did, was inconsistent with his ultimate plea of guilty of doing grievous bodily harm with intent to do so.

[10] His Honour also noted that even after confessing to stabbing the complainant, the applicant professed his innocence in a letter dated 15 February 2013, in which he had sought to implicate two other people.  That letter is within the material which the applicant tendered in the present application.  The applicant there wrote that he had “taken the blame for the incident to protect [the complainant] and our daughter”, that the applicant was innocent and that “there [were] two male persons involved in this matter”.  The letter was apparently written to support an application for bail.  The sentencing judge noted that “despite that initial obfuscation, [the applicant] did later cooperate with the criminal justice system”, entering guilty pleas at the commencement of the trial in August 2014 and having offered to do so in April 2014.  His Honour noted that the trial had been effectively shortened by appropriate admissions so that it became limited to the issue of whether the applicant had acted with the requisite intent to kill.  He observed that there was “overwhelming evidence of that [intent] from the circumstances of the stabbing and other circumstances.”

[11] In the appeal against conviction which the applicant wishes to reinstate, the applicant would argue as follows.  Although he was at the complainant’s house that night, it was not the applicant who stabbed her.  She was stabbed by one of two men who accompanied the applicant to the house.  They were men who had supplied the applicant with steroids earlier that evening for which they were demanding payment.  The applicant had told them that he believed that the complainant would give him some money.  The applicant also told the men that the complainant had been unfaithful to him and that one of the men had responded by saying “what a fucking slut”, to which the applicant said that “I just wish she could hurt, like she has hurt me.”  The applicant said to one of them to drive the applicant’s car to the complainant’s house because the applicant was feeling “a bit unsteady from the drug”.  The car was parked “a bit down from my wife’s place as I did not want to wake my wife or daughter up as my car is loud.”  One of the men followed the applicant as he entered the complainant’s house.  When the applicant was in the kitchen looking for the complainant’s purse, having been in the house for about five minutes, he heard a loud scream coming from the complainant’s bedroom.  The applicant cannot recall all of his movements within the house but he does recall fleeing with one of the men.  They returned to the applicant’s car and one of the men drove the party away.  The applicant recalls seeing blood on the shirt of one of the men who said “I think the bitch saw me”.  The applicant recalls stopping at a public phone box and ringing his mobile phone because, he says, he could not find it.  He says that by this time he was driving and he drove the two men to where they wanted to go, after which the applicant felt that he had to attend the local hospital to enquire about the complainant.

[12] He says that he subsequently confessed to stabbing the complainant under duress in that he was very depressed and indeed suicidal.  He did not wish to say anything about the two men being involved “because I was scared and had already been blamed for what occurred.”

[13] Those facts are set out in an affidavit of the applicant affirmed on 2 February 2016.  After the hearing of the present application, the applicant caused two further affidavits by him to be provided to the court.  Neither is directly relevant to his application to reinstate his appeal against conviction: each seems to be directed to his attempt to reargue his application to appeal his sentence.

[14] In addition to his affidavits and written argument, the applicant made brief oral submissions, not all of which seem to relate to his case according to his written material and which were put at a high level of generality.  For example, he complained that the trial judge erred in “failing to discharge the jury” and failed to “exclude evidence which [was] not shown to be admissible …” without explaining why the jury should have been discharged or what evidence should have been excluded.  His oral argument gave the impression that it was derived from some other case or cases and added effectively nothing to the case within the filed material.

[15] Rule 70(3) of the Criminal Practice Rules provides that the court may set aside the abandonment of an appeal and reinstate the appeal if the court considers it necessary in the interests of justice.  That requires a consideration of the reason for the abandonment, an explanation (if any) for any delay between abandonment and attempted reinstatement and the prospects of success of the proposed appeal.[2]

[16] The applicant seeks to explain his abandonment of the appeal by claiming that after his trial he was advised by Legal Aid Queensland that he would not be able to appeal against the conviction as he had been convicted of a serious violent offence.  It is quite unlikely that he received such fundamentally incorrect advice.  He did receive an advice on the prospects of appeal, the effect of which is apparent from an email from a lawyer at Legal Aid to the Court of Appeal Registry of 8 September 2015, in which it was said:

“Our office previously assessed merit in this appeal.  In December 2014, we advised the Court that aid was to be refused following the merit assessment process.  That decision was confirmed by the External Review Officer.

Mr Williams abandoned his conviction appeal though proceeded with the sentence application in the Court of Appeal on 11 May 2015.  The application was adjourned on that date and a transcript of the hearing was provided to our office.

A new grant of aid has been issued to again assess merit in Mr Williams’ sentence application.  As such, a further merit assessment will be carried out taking into consideration the comments made during the hearing of 11 May …”.

As already noted, his application to appeal against sentence did proceed and was argued on his behalf by senior counsel last November.

[17] On 19 February 2015, just four days prior to filing the notice of abandonment, the applicant sought to prosecute his appeal against conviction by filing an outline of argument which he and not a lawyer had prepared.  The document set out a version of events which is substantially consistent with the applicant’s present case (although in one respect it could be regarded as significantly different, in that the applicant there asserted that the other man with him in the complainant’s house had suggested stabbing the complainant and the applicant had encouraged him to do so).

[18] On the material now before this court, the applicant’s explanation for abandoning the appeal cannot be accepted as correct.  Having received pessimistic advice about the merits of the appeal and been denied legal aid to prosecute it, the applicant decided to persist on substantially the case which he now wishes to revive, before choosing to abandon the appeal.

[19] The applicant did not seek to revive the appeal until April 2016 and has provided no explanation for a delay of some 13 months.  An inference is open that he believed that his challenge to his sentence had better prospects than his appeal against conviction and that he was concerned that his sentence appeal, in which his remorse was emphasised, would be prejudiced by a claim of innocence.

[20] As to the merit of the proposed appeal, it should first be noted that the application is not made upon the basis of any new or fresh evidence.  All of the facts now asserted by the applicant, if true, were known to him when he confessed to stabbing the complainant in October 2012 and, most importantly, at his trial in August 2014.  He claims that from the outset, he instructed his lawyers about his innocence, substantially according to the version of events upon which this present application is made.  He complains that his lawyers disregarded those instructions.  But it was the applicant, not his lawyers, who confessed to police and who, when arraigned at the commencement of the trial, admitted causing grievous bodily harm with intent to do so.  The applicant does not claim to have been ignorant or confused as to the course of his trial and he must have understood that he had admitted that it was he who had stabbed the complainant and, moreover, with the intention of causing her grievous bodily harm.  He consciously allowed his lawyers to conduct the case upon the basis that the only issue was whether he had an intention to kill.  It could not be accepted that the lawyers were without instructions in that conduct of his case.  And it could not be accepted the defence which was argued at the trial was of the lawyers’ making, because it was the applicant who had formulated that case in his confession to police.

[21] The prosecution case, as the trial judge observed when sentencing, was a strong one.  The complainant was stabbed in circumstances in which a domestic violence order had been made against the applicant and in which he harboured a deep resentment against her.  The applicant had confessed to stabbing her.  He had made a call to his own mobile phone, for which he had (and has) no satisfactory explanation.  As was admitted at the trial, a DNA profile consistent with the applicant’s DNA was located on the blade of the knife near the handle.  Further, had he wished to defend the charge upon his present version, he would have had to give evidence.  One difficulty in that course would have been that his own evidence could have provided the basis for an alternative path to the same verdict, by the jury finding that he was a party to the offence although the stabbing was by another man.

[22] The ultimate question in the appeal which the applicant wishes to reinstate would be whether his conviction of attempted murder involved a miscarriage of justice.[3]  Although the concept is wide, what amounts to a miscarriage of justice is to be considered in the light of the way in which the system of criminal justice operates: a criminal trial is conducted as adversarial litigation in which parties are bound by their conduct of the case through their counsel in deciding what issues to contest, what evidence to lead and what lines of argument to pursue.[4]  The applicant’s trial was in no sense unfair.  It was conducted in all respects according to law.  Though the applicant complains that his present version of events was not put before the jury, it must be concluded that he understood the case which was being argued on his behalf and that with that understanding, he admitted causing grievous bodily harm with intent.

[23] The conduct of his case at the trial, it may be accepted, was in consequence of the legal advice which he had received.  Such advice had a rational basis.  Indeed it was the only case which could have been conducted consistently with his confession to police.  If the applicant had told his legal advisors of what is his present version of events, they may well have considered that the conduct of his case according to that version would be no more likely to succeed than the course which was taken.  His current version is not inherently probable, supported by any other evidence or indeed, necessarily exculpatory.

[24] For these reasons the appeal which the applicant wishes to reinstate has no substantial merit.  Coupled with the other considerations which I have discussed (his lack of an explanation for abandoning the appeal and not seeking to reinstate it earlier), it is my conclusion that his application to reinstate the appeal against conviction should be refused.

[25] There remains his attempt to challenge his sentence by a further application which, of course, is made out of time.  There is nothing advanced in support of this application which was not or could not have been advanced by his counsel in the previous application for leave to appeal against sentence.  In R v Upson (No 2)[5] it was held that where an application for leave to appeal against sentence has been refused after consideration of the merits of the proposed appeal, the court has no jurisdiction to grant leave to appeal on a subsequent application.  In a more recent case, in the New South Wales Court of Criminal Appeal,[6] a different view was reached, namely that the refusal of an application for leave to appeal was no jurisdictional bar to a second application.  It is unnecessary here to discuss that question because if there is no jurisdictional bar, this second application for leave to appeal against sentence is clearly an abuse of process as an impermissible attempt to relitigate a case which the court has conclusively determined on the merits.[7]  For that reason a second application for leave to appeal against sentence was refused by this court in R v O'Hara.[8]

[26] I would order as follows:

1.Refuse the application to reinstate the appeal against conviction.

2.Refuse the application to appeal against sentence.