R v Milne[2016] QCA 235

COURT OF APPEAL

MARGARET McMURDO P

GOTTERSON JA

MORRISON JA

CA No 140 of 2016

DC No 1044 of 2014

THE QUEEN

v

MILNE, Robert JohnApplicant

BRISBANE

THURSDAY, 15 SEPTEMBER 2016

JUDGMENT

GOTTERSON JA:  On 6 May 2015, in the District Court at Brisbane, Robert John Milne was found guilty and convicted of some eight offences.  Three convictions were for rape.  Three were for indecent dealing, and two were for procuring a child to commit an indecent act.  All offences concerned the same female complainant, who was, at all material times, under 12 years of age.  All offences were alleged to have occurred within the period beginning on 31 December 2001 and ending on 6 July 2003, when the complainant was five to seven years of age.  Mr Milne was sentenced on the same date to four years’ imprisonment for the rape offences and to concurrent terms of two years’ imprisonment for the other offences.

On 25 May 2015, the Toowoomba solicitors who had acted for Mr Milne at his trial filed a notice of appeal in this Court against his convictions.  That document initiated appeal number 101 of 2015.  It nominated one ground of appeal, namely, that the jury verdict was unreasonable in all the circumstances.  The appeal was listed for hearing on 12 February 2016.  However, on 5 February 2016, Mr Milne, who, by that time, appears to have been without legal representation, filed a notice of abandonment of his appeal.

Notwithstanding that, on 24 May 2016, Mr Milne filed two documents in this Court concerning his convictions.  One is a Form 28 Notice of Application for Extension of Time within which to appeal.  The other is a Form 26 Notice of Appeal.  Both forms have been completed by Mr Milne in his own handwriting.  More recently, on 19 August 2016, he filed a short handwritten submission in support of his extension of time application. 

I note that the recently filed notice of appeal differs in two respects from the original notice of appeal, so far as the grounds of appeal are concerned.  First, it gives some particularisation to the unreasonable verdict ground.  Secondly, it adds a second ground alleging a miscarriage of justice.  The stated grounds are:

“(a)The verdict of the jury was unreasonable, based on hearsay, with no supporting evidence to the complainant’s allegations.

(b)Miscarriage of justice.  Specifically the DPP withheld evidence.  A record of interview made by the complainant on 9.11.2014 at Morningside Police Station.  I saw this for the first time in January of this year (2016).”

It need be said at once that Mr Milne’s application for an extension of time in which to appeal is misconceived.  He did appeal, and then he abandoned the appeal.  Once notice of abandonment was given, the appeal was taken to be dismissed under r 70(2) of the Criminal Practice Rules 1999.

Rule 70(3) does, however, confer a discretion on this Court to set aside an abandonment and reinstate an appeal if the Court considers it necessary in the interests of justice.  Although Mr Milne has not made an application under r 70(3), I think it appropriate to treat his application for an extension of time to appeal as an application for setting aside the abandonment and reinstating the appeal on the basis that grounds of appeal in a reinstated appeal would reflect those set out in the Form 26 filed on 24 May 2016.  To treat the filed application in this way avoids any risk to Mr Milne of it being dismissed because his timely appeal has already been dismissed.

In R v Williams,[1] this Court endorsed principles which had been enunciated in the R v Marriner[2] and R v Basacar[3] that r 70(3) requires consideration of the reasons for the abandonment, an explanation (if any) for any delay between abandonment and attempted reinstatement, and the prospects of success on the proposed appeal.

Here, Mr Milne has not offered any sworn testimony concerning the first two of these matters.  His short written submission does not deal with the abandonment.  Today he said that he abandoned the appeal because he could not file an outline of argument, he being under the impression that he had to abandon because of that.  Not only is that improbable, but it is inconsistent with his filing outline of argument for this application.

As to an explanation for delay, Mr Milne’s statement that he first saw the allegedly withheld evidence in January this year is capable of explaining a delay to that point or shortly thereafter.  However, even allowing for the fact that he is acting for himself, it does not explain the whole of the delay of approximately four months from then until his Forms 26 and 28 were filed on 24 May 2016.

Despite these evidential shortcomings on Mr Milne’s part, I would not be inclined to refuse to set aside the abandonment and reinstate the appeal for failure to give a reason for the abandonment or explain delay.

It is, however, a step I would take upon a consideration of the prospects of success of the proposed grounds of appeal.

It is appropriate to consider the additional ground first.  There is evidence before the Court by way of an affidavit of Ms Elizabeth Kelso, the prosecutor at Mr Milne’s trial.  Her affidavit proves that the complainant was re-interviewed by the arresting officer at the request of the Office of the Director of Public Prosecutions.  The re-interview took place on 9 November 2014.  The arresting officer undertook to obtain a transcript of the interview.

Most significantly, the affidavit proves that on 12 November 2014, the transcript of the re-interview was forwarded by email by an officer of the Office of the Director of Public Prosecutions to Mr Neville Weston, Mr Milne’s trial counsel.  Moreover, the language of the email indicates that Mr Weston already knew of the interview and of the existence of the transcript and that he had requested a copy of it.

There is no evidence which might call into question the reliability of Ms Kelso’s affidavit evidence.  In the face of that, it is impossible for Mr Milne to maintain that the transcript was withheld.  To the contrary, it was disclosed to his counsel well before the trial.  Today he said that he hoped to find discrepancies in the transcript.  Evidently, Mr Weston made a forensic decision reasonably open to him that the transcript would be damaging to Mr Milne’s case.  There was no miscarriage of justice by way of non-disclosure of the transcript.  This ground of appeal has no prospects of success.

The unreasonable verdict ground, as elaborated by Mr Milne, also has no measurable prospects of success.  The verdict was not based on hearsay.  The jury saw and heard evidence of each of the counts given by the complainant herself.  Insofar as the ground contends that her evidence was not supported, whilst it is true that there was only some corroboration from the complainant’s mother, that, of itself, did not diminish the evidential worth of her testimony.  Certainly it did not have the consequence that the verdict was unreasonable, in that it was based upon it.

Given the absence of any prospects of success for either of the proposed grounds of appeal, I do not consider it necessary in the interests of justice to set aside the abandonment and reinstate the appeal.  I would therefore order that the application to set aside the abandonment and to reinstate the appeal be refused.  For the sake of clarity, I would also order that the application for extension of time within which to appeal be refused.

To summarise, I would propose the following orders:

1.Application to set aside the abandonment of and to reinstate the appeal in CA No 101 of 2015 is refused.

2.Application to extend time within which to appeal filed in CA No 140 of 2016 is refused.

THE PRESIDENT:  I agree.

MORRISON JA:  I also agree.

THE PRESIDENT:  The orders are as proposed by Justice Gotterson.