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R v Dendle[2020] QCA 160

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dendle [2020] QCA 160

PARTIES:

R

v

DENDLE, Robert Jon

(applicant)

FILE NOS:

CA No 24 of 2020
DC No 1333 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction and Sentence: 4 May 2018 (Rafter SC DCJ); [2019] QCA 194 (Fraser and Philippides JJA and Lyons SJA)

DELIVERED ON:

7 August 2020

DELIVERED AT:

Brisbane

REVIEW DATE:

6 May 2020

JUDGE:

Sofronoff P

ORDER:

The application for an extension of time is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – OTHER MATTERS – where the applicant was convicted of two counts of rape and three counts of indecent treatment – where the applicant previously appealed against his convictions and sought leave to appeal against his sentences – where the applicant’s appeal was dismissed and leave to appeal against his sentences was refused – where the applicant now seeks an extension of time to file a further appeal – where the applicant submits that one of the grounds of appeal, being that the verdict was unsafe and unsatisfactory, was never considered by the Court of Appeal – whether the Court has not yet determined his appeal because it has not yet determined that ground – whether there can be a further appeal to the Court of Appeal

Criminal Code (Qld), s 668E(1)

BCM v The Queen (2013) 88 ALJR 101; [2013] HCA 48, cited

Jones v The Queen (1989) 166 CLR 409; [1989] HCA 16, considered

R v Dendle [2019] QCA 194, related

R v Nudd [2007] QCA 40, applied

COUNSEL:

The applicant appeared on his own behalf

D Balic for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  This is an application for an extension of time within which to appeal.
  2. [2]
    After a trial, on 4 May 2018, the applicant was convicted of two counts of rape and three counts of indecent treatment of a child under 16 years.  In each case the complainant was the same 13 year old boy.  The applicant was sentenced to imprisonment for 12 years on one of the rape counts and to shorter concurrent sentences on the other counts.  The applicant filed an appeal against his convictions and sought leave to appeal against his sentences.  After a hearing, on 24 September 2019 his appeal was dismissed and leave to appeal against his sentences was refused.[1]  The applicant now seeks an extension of time to file a further appeal.
  3. [3]
    The applicant’s appeal was based upon six grounds.  Three grounds contended that evidence had been wrongly admitted.  One ground complained about the conduct of the prosecution.  Another ground complained about the conduct of defence counsel.
  4. [4]
    The remaining ground was that the verdict was “unsafe and unsatisfactory and not according to law”, which can be taken to invoke the statutory ground that the verdict was unreasonable or not according to the evidence, in terms of s 668E(1) of the Criminal Code (Qld).  On this application the applicant argues that this ground was never actually considered by the Court of Appeal when it determined his appeal.  He submits that the case against him at trial stood or fell upon the unsworn evidence of the complainant that had been recorded before his untimely death.  Because the complainant died, he was not cross-examined.  In his very clear and cogent written outline of argument, the applicant referred to Jones v The Queen[2] in which Mason CJ, Brennan, Dawson and Toohey JJ said:

“A court of criminal appeal has jurisdiction to hear and determine all grounds of appeal which are raised and argued in support of an appeal by a convicted person who seeks an order quashing his conviction and entering a verdict of acquittal.  As it is the duty of a court of criminal appeal to exercise its jurisdiction when that jurisdiction is invoked, the court must hear and determine each ground of appeal which is raised and argued unless the ground is plainly untenable or the party raising it succeeds on another ground.”

  1. [5]
    The applicant submits that the ground that he advanced, that the verdict was unreasonable, was not untenable.  He points to internal indications in the recording of the complainant’s version of events that show that the account is unreliable.  For example, he submits that, as the recorded evidence of the complainant shows, the complainant admitted to police that in certain respects he had been untruthful to them.[3]  He also points out that, beyond features like that, the reliability and cogency of the evidence was further degraded because the evidence consisted of a recording of an unsworn oral statement which, in the circumstances, could not be challenged or investigated by cross-examination.  He submits that the Court of Appeal did not consider this ground in the way the authorities required it to do.[4]  Relevantly, he submits that the Court did not undertake its own assessment of the evidence but, instead, relied upon the Crown’s characterisation of it.  He submits that, as the High Court said in BCM v The Queen,[5] after undertaking that assessment the Court is required to disclose its reasons but that, in this case, the Court failed to do so.  The ground was considered in the Court’s reasons at paragraphs [43] to [46].[6]  The applicant points to those paragraphs to make good his submission.
  2. [6]
    The applicant submits that the Court has not yet determined his appeal because it has not yet determined that ground.  It follows, he submits, that he should be entitled now to have that ground determined in the Court of Appeal.
  3. [7]
    Whether or not there is substance in the applicant’s submission about the adequacy of the Court’s treatment of his ground of appeal, the law provides for but a single appeal.  As Keane JA said in R v Nudd:[7]

“The right of appeal to this Court is created by s 668D of the Criminal Code 1899 (Qld). Once this Court has decided an appeal to it on its merits, the right of appeal conferred by s 668D of the Code is exhausted, and this Court has no jurisdiction to entertain a further appeal. That this is so is well established in a long line of authorities: see Grierson v The King (1938) 60 CLR 431; R v Smith [1968] QWN 50; Mickelberg v The Queen (1989) 167 CLR 259, especially at 287; and R v MAM [2005] QCA 323.

  1. [8]
    The applicant’s appeal was determined when the Court made its order on 24 September 2019 dismissing the appeal.  Whether or not all of his submissions were considered and determined, there can be no further appeal and, as a consequence, this application for an extension of time must be refused.  The applicant is out of time to seek leave to appeal to the High Court, but he is entitled to seek an extension of time within which to seek leave to appeal to that Court.  That is his only remaining avenue to redress what he submits has been a miscarriage of justice.
  2. [9]
    The application for an extension of time is refused.

Footnotes

[1] R v Dendle [2019] QCA 194 at [79].

[2]  (1989) 166 CLR 409 at 411.

[3] Cf see applicant’s outline dated 5 May 2020, paragraph 12 n.

[4]   Eg. SKA v The Queen (2011) 243 CLR 400 at 409.

[5]  (2013) 88 ALJR 101; [2013] HCA 48.

[6] R v Dendle, supra.

[7]  [2007] QCA 40 at 3.

Close

Editorial Notes

  • Published Case Name:

    R v Dendle

  • Shortened Case Name:

    R v Dendle

  • MNC:

    [2020] QCA 160

  • Court:

    QCA

  • Judge(s):

    Sofronoff P

  • Date:

    07 Aug 2020

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2018] QDCPR 1626 Apr 2018Pre-trial application for exclusion of recorded statements against interest; field tape excluded as police failed to clarify whether accused wished to contact lawyer; electronic record of interview not excluded in exercise of public policy discretion despite extension of time for questioning being obtained without accused having opportunity to make submissions: Clare SC DCJ.
Primary JudgmentDC1333/16 (No citation)04 May 2018Date of conviction after trial by jury of three counts of indecent treatment and two counts of rape of a 13-year-old child.
Primary JudgmentDC1333/16 (No citation)04 May 2018Date of imposition of head sentence of 12 years' imprisonment with a serious violent offence declaration (Rafter SC DCJ).
Appeal Determined (QCA)[2019] QCA 19424 Sep 2019Appeal against convictions dismissed; s 93A statement, admitted under EA s 93B on rape charges and by operation of EA s 21AF and JA ss 110A-111 on indecent treatment counts and not excluded, not wrongly received; contention that jury's verdicts unsafe rejected; no substance in complaints as to disclosure and competence of representation; no error in [2018] QDCPR 16. Leave to appeal against sentence refused; sentence not manifestly excessive: Fraser JA, Philippides JA, Lyons SJA.
Appeal Determined (QCA)[2020] QCA 16007 Aug 2020Application for extension of time to appeal against convictions refused; rights of appeal exhausted by [2019] QCA 194; adequacy of reasons for court’s rejection of unsafe verdict ground irrelevant: Sofronoff P.

Appeal Status

Appeal Determined (QCA)
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