SUPREME COURT OF QUEENSLAND 

1. THE COURT:  The applicant applies for an extension of time in which to appeal against his convictions (after trial before a jury) on 17 November 2005 for murder and armed robbery in company with violence. 

2. The applicant did not appeal against the convictions within time. His application for extension of time within which to appeal and notice of appeal was not filed until 20 August 2007, about 20 months out of time. 

3. In accordance with R v Tait [1999] 2 Qd R 667, the applicant needs to address whether there is good reason to account for the delay and whether it is in the interests of justice to grant the extension.  It is relevant to consider the viability of any appeal, to the extent that it is possible to make any assessment on the limited materials that are before the court on an application for extension of time.  Even if there is no satisfactory explanation for delay, an application to extend the time to appeal may be granted if a refusal to do so could result in a miscarriage of justice:  R v GV [2006] QCA 394 at [3]. 

Facts

4. The applicant and his girlfriend had been living with the victim. The prosecution case was that the applicant organised for two other men, Brown and another, to attack the victim and to render him unconscious and then to steal from the victim. It appears that the applicant and his girlfriend were upstairs when the victim was attacked downstairs by the two men and one or both of the attackers then called out to the applicant to come downstairs. According to the applicant, he was told to restrain the victim (who was still alive and struggling) which the applicant did, whilst one of the other men was hitting the victim in the head with a gun. The applicant then tied up the victim, because he said he was told to by one or other of the two men.

5. It was common ground at the applicant’s trial that the blows inflicted by one or both of Brown and the other man killed the victim. The prosecution case against the applicant was based on ss 7 and 8 of the Criminal Code Act 1899 (Qld).

6. The applicant did not give evidence at his trial. The applicant had participated in a record of interview in which he gave his version of the events surrounding the plan to assault and the assault of the victim and also provided a written statement to the police about the events. The applicant in his record of interview described the plan as “two other people were supposed to just knock him out and tie him up so he couldn’t see nothing”.  The applicant also stated in his record of interview that the purpose of the plan was so they could get some money off the victim to pay off debts. 

7. The applicant’s trial preceded that of Brown who had applied for and obtained a separate trial. Brown was found guilty after trial of manslaughter in October 2006.  The applicant deposes to finding out in early 2007 that Brown was found guilty of manslaughter and also then finding out that the other man who was with Brown when the victim was first assaulted had pleaded guilty to manslaughter and that was accepted by the Crown. 

8. The applicant swore an affidavit for the purpose of the application which stated that he was not in the right frame of mind to consider an appeal after he was found guilty, because he was suffering from severe depression and post‑traumatic stress disorder and was prescribed anti‑psychotic medication to treat him for these conditions.  The respondent relies on medical records of the Department of Corrective Services in relation to the applicant’s treatment in prison and disputes that the applicant was not in a fit state to consider and give instructions in relation to an appeal. 

Explanation for delay

9. It is not necessary to attempt to resolve the differing contentions about whether the applicant was in a state that enabled him to make decisions in relation to filing an appeal within the appeal period. On any view, the applicant’s explanations do not cover the substantial period that has passed between his convictions and the filing of the notice of appeal.

Grounds of appeal

10. The applicant’s counsel foreshadows a number of grounds of appeal, but frankly acknowledged that the applicant’s case for appeal would benefit from an opportunity for his lawyers to examine the trial transcripts closely. Without that opportunity, the applicant relies on what he describes as his “justifiable sense of grievance” in being convicted of murder, when his co‑offenders were convicted of manslaughter, and challenges aspects of the directions given by the learned trial judge on ss 7 and 8 of the Code. 

Applicant’s sense of grievance

11. The applicant seeks to draw an analogy between his situation and that which resulted in a successful appeal in R v Iliovski (2002) 135 A Crim R 117.  Iliovski was convicted of counts 3 and 4 and his co‑accused in the same trial was convicted of count 3.  The Crown case was that the co‑accused was the one who did the acts that constituted count 4 and that Iliovski was liable as an aider and abettor or for acting in concert.  On the facts of the case, if the co‑accused were not guilty of count 4, Iliovski could not be found guilty of count 4.  The conviction of Iliovski on count 4 was therefore set aside on the appeal and a verdict of acquittal entered.  This outcome turned on the facts of the case and that there was a joint trial of Iliovski and his co‑accused, which distinguishes it from the applicant’s situation.  There were separate trials for the applicant and Brown and, as a matter of law and on the particular facts, the conviction of the applicant of murder did not depend upon the alleged principal being convicted of the same charge.

12. The applicant’s sense of grievance (without more) does not suggest that there are reasonable prospects of a successful appeal against the applicant’s conviction.

Challenges to the summing up

13. The applicant’s counsel points to at least three aspects of the summing up which he submits could give rise to the conclusion that there were omissions in the directions that gave the applicant a viable argument for appealing against his conviction for murder. In relation to the case based on s 8 of the Code, the applicant submits that the trial judge should have explained to the jury what is meant by “a probable consequence” and the trial judge did not give directions to cover the situation where the intention of participants may diverge after being formed in common.  In relation to the case based on s 7(1)(c) of the Code, the applicant submits that the trial judge should have given a direction as discussed in R v Lowrie & Ross [2000] 2 Qd R 529, 535 [12] to the effect that knowledge of no more than a possibility that death or grievous bodily harm might be intended by the perpetrator is not sufficient to attract criminal responsibility under s 7(1)(c).

14. It was critical to the prosecution case under both ss 7 and 8 that the applicant was party with others to a plan to disable the victim in order to steal from him.  In relation to the s 8 case, the applicant could have been found guilty of murder only if the jury were satisfied beyond reasonable doubt that the unlawful killing of the victim by Brown and/or the other man was done with the intent by the perpetrator to kill or cause grievous bodily harm to the victim and that was a probable consequence of the plan that the jury found that the applicant and the others had the common intention to prosecute.

15. The applicant’s trial took place before the decision in Darkan v R (2006) 227 CLR 373 in which there is an extensive discussion (at 396‑399 [72]‑[81] and 410‑412 [128]‑[133]) on what directions may and may not be given to explain “a probable consequence” for the purposes of s 8 of the Code.

16. It has been acknowledged that it is not necessary in every case to explain the meaning of the expression “a probable consequence” to the jury: R v Brown [2007] QCA 161 at [38] and Darkan v R (2006) 227 CLR 373, 411‑412 [130]‑[131].  It is difficult to speculate on whether any such explanation was required in this case merely by examining the summing up.  It depends very much on the cogency of the evidence before the jury as to the nature of the plan that was being prosecuted by the applicant and the others.

17. The other points relied on by the applicant’s counsel to challenge the summing up are also directed at what was not said by the trial judge to the jury. There is no suggestion that any error was made by the trial judge in what was said to the jury. Whether those additional directions on ss 7(1)(c) and 8 were required depends on whether there was evidence that warranted giving those additional directions.  The seriousness of the offences of which the applicant was convicted (in the context of the alleged principal offender proceeding to trial after the applicant’s trial) supports the applicant’s lawyers being given the opportunity to pursue the omissions in the summing up on which they seek to rely against the evidence as it emerged at the applicant’s trial.  Despite the lack of a satisfactory explanation to cover the lengthy delay before the notice of appeal was filed last year, the interests of justice warrant granting the extension.

Conclusion

18. The orders which will be made are:

1. The application for leave to extend the time within which to appeal against conviction is granted.

2. The time for filing the applicant’s notice of appeal against convictions is extended to 20 August 2007.