R v Hadland[2000] QCA 343

COURT OF APPEAL

McPHERSON JA

THOMAS JA

ATKINSON J

CA No 174 of 2000

THE QUEEN

v.

MARK JOHN HADLANDApplicant

BRISBANE

..DATE 21/08/2000

JUDGMENT

McPHERSON JA:  On 4 October 1999 Mark Hadland was convicted after a trial before a jury in the District Court at Bundaberg of a single count of assault occasioning bodily harm.  On the same day he was sentenced to a term of four years' imprisonment with a declaration that it was a serious violent offence.  Because he was on parole at the time of the offence he was obliged to serve the balance of his existing sentence of three years, on which the sentence imposed on 4 October 1999 was made cumulative.

On 3 July 2000 he filed a notice of appeal directed to conviction and an application for leave to appeal against sentence.  The appeal against conviction has now been abandoned and we have dismissed it.  There are several obstacles to the appeal against sentence.  In the first place the application is well out of time and an extension is needed to enable it to be pursued here.  In the second place an application for leave to appeal against the same sentence has already been lodged and has been determined by a Court of Appeal comprising the Chief Justice, the President and Justice Dutney on 16 May 2000 in Rockhampton.

We were referred in the written outlines to conflicting opinions in this Court as to whether or not a second appeal or application for leave to appeal against sentence is maintainable.  For present purposes I am prepared to assume (but no more) that it is.  See R v. Pettigrew [1997] 1 Qd.R 601.  But such an appeal or application is one that would only be entertained in cases of plain injustice. 

The present application is very far from being that.  The matters raised by the applicant, who appeared in person before us, go essentially to the following matters.  First, there is a challenge to the complainant's credibility.  Matters are raised such as her alleged tendency to use drugs, drink vodka and consume amphetamines.  Factors of this kind were put in the course of the trial, both to the complainant herself, and also to some extent in evidence by the appellant.  The jury plainly rejected them.

The evidence of Mr Errol Rouse is suggested to be competent to prove these matters or to advance them again.  Mr Rouse was apparently a witness who was going to be called at the trial, but in the end he was not.  However one looks at the matter it is material that goes only to the credibility of the complainant and is therefore collateral to the issue with which we are now concerned. 

There is also a reference to a Mr Lee Hillier.  He evidently gave evidence for the defence at the trial.  He is a nephew, as I understand it, of the applicant and has a criminal record himself.  His evidence can at best go to credit or discredit, and again is collateral to the sort of question we are now asked to consider. 

We were also referred to a letter from Mr Jason Brown.  He attests to the fact that the applicant is a high calibre person who is "correct" - or perhaps it is "accurate" - and reliable in matters of detail. 

Plainly, Mr Brown's evidence is in the nature of a character reference, and matters of that kind are and already have been heard at the sentencing hearing in cases of this kind.  In addition, there has been quite lengthy reference to a letter that was going to be written by an Inspector Jencke.  It is described in the material as a letter of comfort.  It does not ever seem to have been provided.  If it was, it related essentially to matters after the sentence in this case. 

What is said by the applicant, and has been said by him at some length in his oral statements to us, is that he is engaged as an undercover intelligence officer.  He has given a great deal of time and effort to uncovering evidence of drug use; and he is registered for this purpose, I understand, with the Federal Police.  Again, these are matters that go to character that were appropriate to be raised at the hearing before the District Court Judge where the sentence was imposed. 

The applicant has asserted his intention to go on helping society by means of these efforts on his behalf.  I have no doubt that he will continue to do so; but that does not assist him in reducing the sentence that was imposed for what was an entirely different and rather serious act of behaviour following upon other incidents of its kind on earlier occasions.

In addition, we are told that he could obtain character references from prison officers; but quite clearly they again go only to establishing, to the extent that they do (and we have not seen them), good character on his part. That was relevant to the hearing sentence before the Judge in October 1999 and could not be adduced at this hearing now unless there was something specially cogent about them. 

In all the circumstances I see nothing in this case in the nature of an injustice or miscarriage of justice such as would activate any jurisdiction that this Court has to consider a second application for leave to appeal against sentence.  It follows, of course, that there is nothing before us to show that time should be extended to allow such an application to be made.  Accordingly, in my view, the application for leave to appeal against sentence, and the application to extend time for that to take place, should be dismissed.

THOMAS JA:  I agree.

ATKINSON J:  I agree.

McPHERSON JA:  The order of the Court is that the application for leave to appeal against sentence and the application to extend time within which to appeal against sentence are both dismissed.

 -----