R v Mizzi[2012] QCA 252

FRASER JA:  Yes, thank you.  The Court is in a position to give judgment in this matter immediately.  I will ask Justice Henry to give the first set of reasons.

HENRY J:  On 18 October 2011 in the Rockhampton District Court the applicant was sentenced on his plea of guilty to one count of assault occasioning bodily harm whilst armed to 15 months imprisonment with immediate release on parole.  On 9 August 2012, he filed a notice of appeal against his conviction and an application for extension of time within which to appeal his conviction.

Section 671(1) of the Criminal Code 1899 (Qld) provides that notice of appeal must be given within one calendar month of the date of conviction.  In this case, the notice was given following a long delay of about nine months after the expiration of that time.  The issue for determination is whether the Court should exercise the power conferred by s 671(3) to extend the time within which notice of an appeal may be given.

Background

The facts of the offence, as summarised by the sentencing judge below, were that at about 7 pm the applicant was sitting on the front fence of the MacAuley family's home.  He was intoxicated, drinking from a beer bottle, playing with his children and singing loudly.  He was asked to get off the fence.  He responded with a deeply offensive comment to Mrs MacAuley and pushed Mr MacAuley in the chest.  Mr MacAuley pushed him back.  The applicant then swung his beer bottle into Mr MacAuley's head.  This caused a cut to MacAuley's head requiring four stitches.  A victim impact statement indicated the distress and nervousness occasioned to Mr MacAuley by the offence.

The applicant, now aged 41, is no newcomer to the criminal justice system.  His New South Wales criminal history records convictions in 1989 and 1994.  His Queensland criminal history records convictions in 1996, 1997 and 2009.

In sentencing the applicant to 15 months imprisonment the learned sentencing judge made plain he was only releasing the applicant immediately on parole because of his obligations as sole parent to his children, one of whom is autistic.

Matters now raised by the applicant

The application relates not to the sentence imposed but to the conviction.  Significantly, the conviction followed the applicant's plea of guilty. 

The applicant's grounds for the application to extend time, set out in the notice of application, are that he was not informed by his solicitor or barrister that he had the right to appeal “this matter” and that it was only through Legal Aid that he was informed of his right of appeal.

As to the substantive grounds of appeal, they take the form of an annexure signed by the applicant asserting various matters of fact.  In summary, the document asserts the applicant struck Mr MacAuley in self defence, complains of the failure of investigating police to interview his children and alleges his counsel had a conflict of interest and should not have acted for him because he had previously represented a person called Clayton Leigh in a family law matter against the applicant.

The document also asserts he provided his lawyers with documents demonstrating he was not home drinking earlier on the day of the offence but was told by his counsel they were of no use in the case.  He asserts his counsel told him he had "made a deal" with the prosecutor, should the applicant plead guilty.

The applicant filed a second document signed by him similar to the abovementioned annexure.  The document alleges he was not intoxicated and makes various allegations about the behaviour of the MacAuleys on other occasions.  It also enlarges, a little, upon the conflict issue in respect of his counsel, alleging that after the "brief" Family Court matter, he told his future counsel he was an idiot “for his client had no grounds to take me to court in the first place".  The document alleges:

"I was concerned that with [my barrister] representing me in this matter, it would be a conflict of interest.  This I raised with [my solicitor], who originally agreed with me, but later referred me back to [my barrister]."

Discussion

In R v Tait [1999] 2 Qd R 667, 668, it was observed that the Court's approach to applications to extend time that:

"...the Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension.  That may involve some assessment of whether the appeal seems to be a viable one...Another factor is the length of delay, it being much easier to excuse a short than a long delay.”

The only explanation for the delay – that he was not told of his right of appeal by his lawyers – appears in the notice of application for extension of time. 

The applicant has filed no affidavit material at all in support of his application.  Further, the above-mentioned two documents signed by him and outlining his grievances provide no explanation for the delay in filing his notice of appeal.  Having regard to the long delay involved and the absence of evidence explaining it, the mere assertion of legal ignorance made in the notice of application for extension of time falls substantially short of showing good reason for the delay.

As to the underlying merits, there is no evidentiary material suggesting the appeal is a viable one.  Even the two documents outlining the applicant's grievances failed to articulate any matter suggesting there may have been a miscarriage of justice.  The only two matters raised warranting any material consideration are the complaint about his counsel's supposed conflict of interest and the assertion he acted in self defence.

In respect of the supposed conflict, the mere fact that the applicant's barrister once acted in a case against him is not of itself concerning.  There is no suggestion the case had any connection at all with the criminal proceeding and no indication of any conduct by his counsel towards him, in the previous matter, which might found any perception of conflict.

Further, the applicant asserts he raised the supposed conflict issue with his solicitor in the criminal proceedings and an initial decision not to use the counsel was later changed.  Given the applicant allegedly raised the matter with his solicitor in the first place it is unlikely the decision to revert to and continue with the counsel in question was one he believed he had no say in.  There is no substance to the alleged conflict issue.

As to the assertion the applicant acted in self defence and by implication is not guilty, again, no evidentiary material has been filed in support of this assertion.  Moreover, it confronts the obvious obstacle that the applicant pleaded guilty

In Meissner v The Queen (1995) 184 CLR 132, 141, the majority observed:

"A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty...A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea.  There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence."(citations omitted)

There is no indication in the present matter that the applicant's plea of guilty was other than voluntary.  Indeed the material strongly suggest it was a well considered decision. 

It appears from the sentencing remarks that when interviewed by police the applicant laid the blame for the episode substantially upon Mr and Mrs MacAuley.  The MacAuleys were cross-examined at the committal proceedings.  The applicant's plea of guilty was a late one.  However, the learned sentencing judge remarked "[b]y your plea of guilty it is argued that you have accepted your responsibility for what occurred".  Consistent with that acceptance, the following exchanged occurred immediately prior to his Honour's sentencing remarks:

“HIS HONOUR: Mr Mizzi, you have heard a range of matters put forward by the Prosecutor, and then by your counsel...Before I pass sentence, is there anything that you want to say to me about any aspect of this?

DEFENDANT: I'm sorry that this took place.  It's embarrassing for myself and for my two children."

These features strongly suggest the decision to plead guilty was the product of informed and voluntary decision making by the applicant.  His ultimate decision to plead guilty is unsurprising.  It is highly likely he would have received a sentence involving actual time in custody had he gone to trial and been convicted.  It appears his counsel's extraction of a concession as to sentence likely influenced his decision to plead guilty.

In the circumstances, it is readily apparent that even if time were extended the appeal against conviction would be doomed to fail. 

The application should be refused.

FRASER JA:  I agree that the application should be refused for the reasons given by Justice Henry.

McMEEKIN J:  I, too, agree.

FRASER JA:  The order of the Court is that the application is refused.