Fredericks v Wheeler[1997] QCA 245

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 245 of 1997.

Brisbane

[Fredericks v. Wheeler]

ANDREW SCOTT FREDERICKS

v.

MALCOLM EDWARD WHEELER

(Applicant)

Pincus J.A.

Davies J.A.

White J.

Judgment delivered 12 August 1997

Judgment of the Court

APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL REFUSED

CATCHWORDS: CRIMINAL LAW - unlawful assault occasioning bodily harm - no conviction recorded - whether applicant has a right to appeal against conviction to Court of Appeal - whether extension of time to appeal should be allowed.

S. 12 Penalties and Sentences Act 1992.

Counsel:  Heard on the papers.  Director of Public Prosecutions (Queensland) for the respondent.

Applicant acted on his own behalf.

Solicitors:  Heard on the papers.  Director of Public Prosecutions (Queensland) for the respondent.

Applicant acted on his own behalf.

Hearing date: 4 August 1997.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 12 August 1997

This is a application for an extension of time within which to appeal.  The applicant was convicted at Townsville by Verra ASM, of having committed an unlawful assault occasioning bodily harm, no conviction being recorded.  The applicant, a solicitor, has explained in his application that he thought that there was no right of appeal to this Court.  Section 668D of the Criminal Code gives this Court jurisdiction to hear appeals against convictions on indictment.  The offence charged was one defined by s. 339 of the Code, which creates a misdemeanour, that being an indictable offence:  s. 3(3) of the Code.

Under s. 673 of the Code a person summarily convicted of an indictable offence (as the applicant was) is entitled to appeal as if convicted on indictment:  Ross (1979) 141 C.L.R. 432, Will v. Borcherdt [1990] 2 Qd.R. 399.  Under s. 12(3) of the Penalties and Sentences Act 1992 ("the 1992 Act") except as otherwise expressly provided, a conviction without recording a conviction is taken not to be a conviction for any purpose.  But under s. 12(4) of the 1992 Act a Court may make "any other order that it may make under this or another Act because of the conviction".  On the face of it, the sub-section appears to preserve this Court’s statutory jurisdiction to allow appeals against conviction where, no conviction having been recorded, what is complained of is a conviction on indictment or a conviction which must for the purposes of appeal be treated as if it were on indictment, under s. 673.

The source of the applicant’s doubt on this point was s. 12(4)(b) of the 1992 Act, designed to preserve appeals against sentence, where no conviction has been recorded.  Although one may question why it was thought necessary to make a specific provision for appeals against sentence there is in our opinion no sufficient reason to imply an intention to interfere with this Court’s jurisdiction to allow appeals against conviction.  One reason for this conclusion is that it would be odd to preserve appeals against sentence to this Court, but abolish appeals against conviction, in respect of convictions for indictable offences without the recording of a conviction;  substantial penalties are able to be imposed when no conviction is recorded and commonly enough, the convicted person wishes to challenge both the conviction and the penalty.

Nevertheless, it does not appear to us that the reason given for initially proceeding on the basis that there was no appeal to this Court is a fatuous one;  it should be treated as a credible explanation.

It remains to be determined whether as a matter of discretion an extension should be allowed;  the basis on which it is opposed is that there has been considerable delay in filing the application and that the appeal would have no merit.  As to delay, the conviction occurred on 21 June 1996 and the notice of application for an extension of time was filed nearly a year later, on 16 June 1997.  The reasons given for so long a delay are in our view not satisfactory;  the applicant says in effect that until recently he thought that his full written argument on the appeal had to accompany the application for an extension of time.  No reason for having thought that is stated and the Court would be justified in refusing an extension on that ground alone.  In the circumstances, however, it is desirable to deal, albeit rather briefly, with the other reason the Crown puts forward as a ground of refusing an extension, namely that the proposed appeal would have no merit.

The evidence discloses that there was an argument between the complainant and the applicant because the former objected to the applicant having cut branches from a tree on the complainant’s footpath.  This argument took place at the top of the stairs leading into the applicant’s house.  According to the complainant, he asked why the tree had been cut and the applicant said that it was because it blocked his vision and was a hazard.  There was further discussion and the complainant told the applicant that "his argument for chopping the trees was stupid", according to the complainant.  One or two other things were said and then the applicant came out and struck the complainant, causing him some injury and then there was further interaction, mentioned below.

When the applicant gave evidence, he gave an account of the conversation between himself and the complainant which was rather similar to that given in the complainant’s evidence, in some respects.  The applicant said, however, that he interrupted a "monologue" of the complainant, then told the complainant to "shut up and piss off";  at that point the applicant went to get a belt to tie his shorts up, put some lights on and came out to the complainant again, telling him again "if you don’t piss off straight away I’ll come down and deal with you".  The applicant said in evidence in chief that the complainant’s "insults were getting more and more vigorous" and the applicant hit him in the face "to show him that I was serious about my request that he leave . . . and to get rid of him".  He said "I was sick of his carrying on".  He then, allegedly thinking that he might be struck with a torch, hit the complainant again, twice.

What the applicant did was on the face of it unlawful and the question before the learned magistrate was whether a defence of provocation or one of self-defence was available.  The magistrate, in reasons which were concise but informative, rejected both these defences, on the facts.

In the argument presented as "grounds of appeal" the applicant made numerous criticisms of the magistrate’s decision.  We do not propose to deal with them in detail;  the case is plainly one where justice has been done.  When asked in cross-examination whether any abusive language was used by the complainant the applicant tended to evade the question, saying ultimately that he could not remember.  He explained that a statement the complainant made interfered with his "dignity" in relation to trees.  He also told the cross‑examining police officer, in effect, that he punched the complainant simply because the complainant was impeding his progress down the stairs.  If this answer were taken seriously, and there was no reason to take it otherwise, it put paid to any suggestion of provocation or self-defence.  On the whole of the evidence it is plain that there was no justification in law or commonsense for the applicant to assault the complainant.

The application must be refused.