The Queen v Everett[1998] QCA 455

COURT OF APPEAL

McMURDO P

PINCUS JA

CHESTERMAN J

CA No 351 of 1998

THE QUEEN

v.

ROSS LINTON EVERETT

BRISBANE

DATE 02/12/98

JUDGMENT

PINCUS JA:  This is an application for an extension of time within which to give notice of appeal, or notice of application for leave to appeal. The written grounds stated in the notice of appeal and application for leave to appeal seem to challenge the conviction (on a plea of guilty) on the ground that the evidence in the case was untrue, as well as challenging the sentence. It appears from the forms prepared by or on behalf of the applicant that he was convicted on 2 April 1998 of grievous bodily harm and that he filed this application six months later, on 2 October 1998. Although the document, as I have mentioned, is consistent with the idea that there would be an attack on the conviction, in fact, as argued by Mr Everett, the complaint appears to be that the sentence was excessive and not that his plea of guilty should be gone behind.

We have the judge's remarks on sentence, from which it appears that someone told the applicant's brother Darren that one Bauer had behaved in a potentially aggressive way or had said something potentially aggressive. The judge was not satisfied that either of these things was done. Then, the judge said, Darren phoned for assistance and in response to that Malcolm Everett and the applicant arrived. To summarise, the judge found that Malcolm king hit Bauer and the judge was satisfied that Bauer was disabled by being punched by Malcolm. While he was thus disabled, the judge said, the applicant punched Bauer a number of times in the face and head, causing him grievous bodily harm. The judge detailed the injuries to Bauer and their effect. I take the injuries conveniently from the submissions made by the respondent which seemed to be accurate in this respect:

"The complainant was hospitalised with:

 .bilateral fractures of both cheekbones - the facial structure was depressed and required the insertion of metal plates to correct it;

 .facial swelling and 2 black eyes necessitating sutures.

As a result of complications the complainant almost died. He developed large blood clots on his lungs and haemorrhaged from the mouth. His teeth were replaced with dentures. He has permanently lost feeling in his lip and nose. There are ongoing headaches. He could not work in his business or on his cattle property for 10 weeks. He can no longer muster his cattle without the risk of further damage. His family is stressed and socially withdrawn as the result of ... [the] attack."

To return to the judge's remarks on sentence, His Honour said he was being careful not to visit all the consequences on Malcolm and Darren, the implication from that being, of course, that it was the applicant who did the real damage, and that does not seem to be in dispute. The judge then sentenced Darren and Malcolm; the former received a fully suspended sentence and the latter a sentence of 18 months suspended after four months. As to the applicant, the judge said, "I have gone on at some length about the savagery of this attack and the fact that you beat up severely a man who was disabled, a man who is very much your elder and while you had the backing of your two brothers."  He was sentenced to four years imprisonment with a recommendation for parole after 15 months.

The applicant is a relatively young man of 33 years of age and does not have a criminal history. One of the complications of the case was that on the plea of guilty His Honour had before him below a number of versions which were not necessarily consistent as to what happened. It does not appear to me that, in the circumstances of the present case, these conflicts were critical. The Judge seemed to proceed on the basis that the version of events put forward by counsel for the defence was substantially correct.

It is not in every case that this Court will grant an extension of time where the basis of the application is that the applicant says he did not know he might be able to appeal.

Mr Everett has informed us today, in effect, that he knew nothing about appeals. Except where the applicant is suffering some particular disability, such an assertion often seems improbable, as most prisoners no doubt know that there are courts which hear trials and there are courts which hear appeals. In the present case, according to the applicant's material, he asked his solicitor what course of action could be taken to alter the decision - meaning the sentencing decision - and he was told that nothing more could be done. Assuming that occurred, it presumably reflected a view that the sentence could not be challenged successfully.

In my opinion, it is proper to take into account against the applicant the substantial delay which has ensued since April, when he was sentenced. Had he suffered any genuine sense of grievance one would have expected him to ascertain much earlier than he did that there was a possibility of approaching this Court. It suggests to me a lack of interest in the matter reflecting, perhaps, a sense that the treatment he received was proper. Whether or not that is so, as a matter of discretion, I would not be inclined, on this application, to extend the time. It does not seem to me that any satisfactory reason has been given for extending it, nor does it appear that there is any reasonable prospect of success on the challenge to the sentence imposed, one of four years imprisonment with a recommendation for parole after 15 months.

As to the conviction, I have already mentioned and it seems to me correct that the applicant does not seriously wish to challenge that. I would therefore simply refuse the application.

THE PRESIDENT:  I agree that the application should be refused for the reasons given by Justice Pincus.

CHESTERMAN J:  I also agree.

THE PRESIDENT:  The order is that the application is refused.