R v R[2001] QCA 305

COURT OF APPEAL

McMURDO P

WILLIAMS JA

BYRNE J

CA No 68 of 2001

THE QUEEN

v.

R

BRISBANE

DATE 30/07/2001

JUDGMENT

THE PRESIDENT: The applicant was convicted of one count of assault occasioning bodily harm on a six month old child on 27 December 1999. On 9 February 2001 he was sentenced to 18 months imprisonment. This application to extend time within which to appeal was dated 21 March 2001 and was filed and served on 22 March 2001. His time for appealing expired on 7 March 2001, for conviction on 8 March 2001 for sentence, and was, therefore, about two weeks out of time.

The applicant explains the reasons for delay in his application and orally in this Court (but significantly not in a sworn affidavit) as being that he was unaware of the time limit or the process of appeal against sentence and conviction until after the expiration of the relevant time periods. As soon as he became aware of these matters he lodged these applications.

Were the extension granted he would argue the following grounds of appeal, which emerged from his oral submissions and from his applications. First, the Judge allowed inadmissible evidence to go to the jury as to an incident in November 1999, about which his partner admits responsibility and in which he had no part.  It should be noted that his  partner did not give evidence at the trial for either the prosecution or the defence.

Second, he says he was not properly legally represented. Third, he says that witnesses lied under oath and, fourth, he claims the decision to convict on the evidence was unsafe and unsatisfactory. Finally, he says the sentence was manifestly excessive.

Having read the Judge's summing up, there seems to have been ample evidence upon which the jury could have been satisfied of the guilt of the applicant. The jury were told the evidence was circumstantial and were given the appropriate warnings. The complainant was a six month old female child. The applicant lived with the child's mother in a de facto relationship. The child suffered extensive bruising to her face and body, including a 7.5 centimetre in diameter bruise around her left eye. The defence case was that the appellant accidentally dropped the child in a fall in which he himself was injured, but such an explanation was inconsistent with the medical evidence called at the trial. There was other evidence that the applicant on occasions pinched the child's cheek until she cried. At the time the injuries occurred the child was in the applicant's control. The Judge seems to have fairly put the defence case to the jury, which emphasised that there was no direct evidence that the applicant lost his temper or that the baby's crying upset the applicant and that after the child was injured the applicant woke her mother and, within 15 minutes, they took the child to the hospital, even though the applicant, himself, had been injured. The applicant did not give or call evidence at his trial.

In oral submissions today the applicant particularly emphasises his first contention, that the incident of another act of violence on 8 November 1999 towards the child when he had care of the child was not admissible and should not have gone to the jury. As the Judge correctly told the jury evidence of that incident was admissible to negative the defence of accident, which was a live issue in this trial. The Judge also emphasised to the jury that it was open to them to give no weight whatever to the events of the November 8 incident if they were not satisfied that the applicant had a role in inflicting those injuries suffered by the child on November 8.

Connected with this complaint is the complaint, made orally  by the applicant today, that he has now been told by his de facto wife that a prosecution witness, Marcus Mari, was not truthful in describing injuries he observed to the child on 8 November; whilst he gave evidence of injuries, he did not see how they occurred. Again, there is no affidavit material supporting that claim but, in any case, it does not seem that the evidence of Marcus Mari played any great significance in the case against this applicant. The Judge told the jury that the evidence from Marcus Mari was equivocal. The applicant emphasises that his partner could have given evidence at the trial to the effect that she inflicted the injuries to the child on November 8 but, after discussing this matter with his lawyers, it was decided not to call her at the trial. Having made that decision at the trial the applicant is not now entitled to run the trial on a different basis. Furthermore, the evidence of Marcus Mari that there were some injuries to the child on November 8 did not stand alone. There was also evidence from other witnesses that the child had injuries on that date.

The applicant also claims today that the evidence of a prosecution witness, Lorraine Dowling, given at the trial was not true.  Inconsistencies in her evidence were pointed out by the Judge to the jury. Her credibility was tested by the applicant's barrister at trial. The jury had the opportunity of observing the witnesses and the credibility of witnesses is, of course, always a matter for the jury in any particular trial.

It is significant that the applicant had the opportunity to give or call evidence but chose not to do so. It should also be noted that the experienced defence counsel, who appeared for the applicant at trial, made no application for any redirections.

No particulars have been provided of the applicant's claim that he was inadequately legally represented at the trial; the applicant has not established that contention. 

It follows that, despite the grounds of appeal that would be argued were the application granted, the applicant's prospects of success on an appeal are, to say the least, not promising.

As to sentence, the applicant was 28 years old and had a significant criminal history for offences of dishonesty and violence.  Particularly significant are two charges of robbery with actual violence whilst armed with an offensive weapon and in company in August 1994, for which he was sentenced to 18 months imprisonment with a recommendation for parole after six months. In those circumstances a sentence of 18 months imprisonment for an assault occasioning bodily harm on a defenceless six month old baby, in circumstances where the applicant does not have the benefit of remorse or an early plea of guilty, it does not, on its face, look to be manifestly excessive.

Although the applications are only two weeks out of time the applicant has not demonstrated any satisfactory grounds for the late lodgment of the appeal in the application for leave to appeal; nor has he demonstrated that, were the extension granted, he would have promising grounds of appeal. I would, therefore, refuse the applications for extension of time.

WILLIAMS JA:  In my view the applicant has not demonstrated sufficient reasons for granting an extension of time to appeal against conviction and sentence. I agree the applications should be refused.

BYRNE J: I agree with the President.

THE PRESIDENT: The order is the applications are refused.