R v Hill[2020] QCA 209

[2020] QCA 209

COURT OF APPEAL

MORRISON JA

BODDICE J

JACKSON J

CA No 318 of 2019

DC No 2 of 2014

THE QUEEN

v

HILL, Ian Hilton Applicant

BRISBANE

THURSDAY, 24 SEPTEMBER 2020

JUDGMENT

MORRISON JA:  On 14 July 2014 the applicant was convicted of two counts of rape, 14 counts of indecent treatment of a child under 12 years and two counts of possession of child exploitation material.  On 18 July 2014 he was sentenced to various terms of imprisonment.  The most serious of which was 10 years on each of the rape counts.  The complainants were an intellectually impaired brother and sister.  The two counts of rape were anal rape of the brother and vaginal rape of the sister.

The applicant now seeks an extension of time within which to appeal against his conviction and to seek leave to appeal against the sentences.  The proposed notice of appeal and an application for extension of time were filed on 28 November 2019.  They are thus more than five years beyond the time limited for an appeal.

The proposed grounds of the appeal against the convictions, as revealed by the application and the proposed notice of appeal, are: (a) there was no evidence of rape; and (b) the complainant’s mother “manipulated her kids like she manipulated her oldest daughter into sleeping with her brother and sister’s father”.

The proposed notice of appeal also includes these words, “I was told if I pled guilty I would get four years.  Some people have gotten less for murder.”  The original application for extension of time sets out the grounds upon which that extension is sought: “The correction centre lost my papers.  There was no evidence of rape and their mother manipulated her kids.”

An amended application for extension of time, filed by solicitors then assisting the applicant, sets out the grounds for an extension in greater detail: (1) the applicant’s trial lawyers did not confer with him after the trial or at any stage in relation to appeal options; (2) the applicant spoke to a duty lawyer at the correctional facility and discussed filing an appeal; and (3) the applicant gave the completed notice of appeal to sentence management on a number of occasions.

The amended application also reveals this chronology of events:

1. (a)
   A grant of Legal Aid was provided to a solicitor’s firm, a different firm from that which conducted the trial, on 17 April 2015, “To investigate the prospects of an appeal”;

2. (b)
   The applicant withdrew his instructions almost two years later on 23 March 2017;

3. (c)
   Neither the trial lawyers, nor the second firm filed the notice of appeal;

4. (d)
   On 25 February 2020 a third firm, Rostron Carlyle Lawyers, received information from Legal Aid “in relation to funding for prospects of appeal of conviction and sentence”;

5. (e)
   On 2 March 2020 the applicant conferred by teleconference with Rostron Carlyle.  In that conference the applicant advised that he wished to appeal and “had on a number of occasions attempted to speak to various lawyers to arrange for his appeal to be filed”;

6. (f)
   On 4 March 2020 the verdict and judgment record was received;

7. (g)
   A further teleconference with the applicant was held on 5 March 2020.  The applicant told Rostron Carlyle that on 15 March 2019 sentence management at the correctional facility had advised him that the appeal had been forwarded to the Court of Appeal and that correspondence from the Court of Appeal was received on 21 November 2019, following which amendments were made and it was re-filed;

8. (h)
   Rostron Carlyle obtained copies of what had been filed and held a further conference in which the question of filing an amended application for extension of time was discussed.  An amended notice was filed; and

1. (i)
   On 11 March 2020, the day the amended application for extension of time was filed, Rostron Carlyle advised the applicant that Legal Aid would not fund them to appear on his behalf, and therefore he would have to appear for himself.

On 24 July 2020 the Registrar wrote to the applicant advising that the matter was set for hearing on 24 September 2020 and directing his outline to be lodged by 27 August 2020.  That letter also noted that the respondent had to respond with an outline by 10 September 2020.  The letter also added some comments about the form of the hearing.  No outline was filed by the applicant.

On 3 September 2020 the Court of Appeal registry advised Townsville sentence management that the matter was listed for 24 September 2020 and asked that the enclosed correspondence be printed and delivered to the applicant.  That correspondence included a letter to the applicant, dated 3 September 2020, which directed the applicant to lodge his outline as a matter of urgency, given that the matter was listed for hearing on 24 September 2020.  The applicant was reminded of the 24 July 2020 letter and a copy was enclosed.

On 7 September 2020 sentence management at the Townsville Correctional Centre advised that the correspondence had been delivered to the applicant.  It also advised that the applicant had requested that Rostron Carlyle’s letter of 11 March 2020, and attached amended application for extension of time, be sent to the registry.

On an application for extension of time the Court will consider whether there is any good reason shown to account for the delay and whether it is in the interests of justice to grant the extension.  The latter question may involve some assessment of whether the appeal seems to be a viable one: R v Tait [1999] 2 Qd R 667 at 668.

There is no good reason to account for the delay in this case.  The applicant has not sworn any affidavit deposing to the circumstances, but insofar as they can be gleaned from the documents which have been lodged, he would say that his trial lawyers did not confer with him after the trial in relation to an appeal, but he completed a notice of appeal, with the assistance of a duty lawyer, and provided it to sentence management.  He has repeated those statements today in his oral submissions.  There is nothing to support any of those matters and the sole source of them is what the applicant told Rostron Carlyle in March 2020 and that he repeats today.

It seems that Legal Aid was granted to a firm of solicitors in 2015 to investigate the prospects of appeal.  One can infer that the investigation did not recommend an appeal, as none was lodged.  Moreover, the applicant’s indifferent attitude to pursuing an appeal can be inferred from his withdrawal of instructions in March 2017.  The delay here is extreme, being more than five years outside the set time limit.

As for the convictions, the transcripts of the summing up and sentence reveal: (1) evidence was given by the complainants, their mother and other witnesses; (2) that evidence included specific accounts of the alleged sexual acts, other uncharged sexual acts, six witnesses as to preliminary complaint, medical evidence, examination of telephone records; exhibit 9, videos of the girl complainant, and the photographs of the subject of counts 9 to 17 (indecent dealing) and 18 to 19 (possession of child exploitation material); (3) there were admissions going to the question of opportunity; and (4) the jury were warned about scrutinising the complainants’ evidence with great care.

In the face of that the assertion that there is no evidence of rape is one that would need to be substantiated with particularity if it were to be credible.  There is nothing that does so.

As for the sentences, the offending was, as found by the learned sentencing judge, (1) a violent, disgraceful breach of trust against children with reduced mental capacity to take care of themselves; (2) repeated offending over a significant period of time; (3) involving rape of each complainant with a degree of force; and (4) by the applicant who was between 43 and 45 at the time, he being someone with very limited prospects of rehabilitation.

That brief synopsis is sufficient to demonstrate substantial hurdles faced by the applicant’s contention that the 10 year sentence might be manifestly excessive.  No attempt has been made to do so.  In his oral submissions the applicant maintained that the sole ground of challenging the sentences was that he was told if he pleaded guilty he would get four years.  That is not any basis to challenge the sentence.

There is an additional matter.  Nothing has been done by the applicant to pursue his application for an extension of time, notwithstanding communications from the Court of Appeal registry urging the lodgement of his outline of submissions, correspondence from Rostron Carlyle and follow-up communications from the registry.  No outline has been filed and no communication was received from the applicant in relation to his application.  That lack of response since the original application was filed on 28 November 2019, and since March 2020, warrants the application for extension of time being dismissed for want of prosecution.

In the circumstances, there being no adequate explanation for the delay, I would refuse the application for extension of time within which to appeal and within which to apply for leave to appeal against the sentences imposed.  Even if I were incorrect in that conclusion, the application should be dismissed for want of prosecution.  I propose the following order:

Application for extension of time refused.

BODDICE J:  I agree.

JACKSON J:  I agree.

MORRISON JA:  The order of the Court is application for extension of time refused.