R v Batchelar

[1994] QCA 460

[1994] QCA 460

COURT OF APPEAL

PINCUS JA DAVIES JA CULLINANE J

CA No 353 of 1994
THE QUEEN
v.

MARK PHILLIP BATCHELAR	Applican
BRISBANE ..DATE 26/09/94 PINCUS JA: This is an application for an extension of time within which to appeal. The history of the matter is that, as the applicant, Mr Batchelar, points out, he has been tried twice for the offence of manslaughter. On the first occasion the applicant was convicted and by a decision of this Court given on 5 February 1993 the verdict was set aside.
The appeal then was based upon the proposition that the Judge had not summed up in terms of the then recent decision of this Court in the case of Van Den Bemd CA No 236 of 1992, delivered 30 October 1992, and in that appeal the Court acceded to that contention, set the verdict aside and ordered a new trial.
The new trial was had; it was brief and concluded in April. On 26 April the applicant was convicted again and he was sentenced to eight years' imprisonment which was the same sentence as was imposed at the first trial. An order was made that pre-sentence custody be taken into account as imprisonment already served.
The conviction as I have mentioned was on 26 April 1994. On 24 August, some four months later, the application with which we are presently concerned was signed and it was filed on 1 September. The application is, therefore, well out of time.
The applicant has appeared for himself today and he has explained that the course of events which I have outlined has involved considerable delay; there have been two trials as has been mentioned and this brought about some mental stress. This was aggravated, the applicant says, by some personal circumstances. He also mentions that the solicitor who acted for him in the first trial advised him wrongly, as he thinks, not to appeal and his lack of confidence in that solicitor contributed in some way to the delay.
What has happened recently, the applicant says, is that he has consulted a duty solicitor at the corrective services establishment who has, it appears, drawn up the grounds which are included in the application. The Crown opposes granting an extension of time.
The grounds are, to put it briefly, as follows: firstly, it is said that the Judge failed to direct the jury with respect to some medical evidence bearing upon the question of the likelihood of the assault, of which the jury apparently believed the applicant was guilty, causing the victim's death; the second ground has to do with an injury which the applicant had suffered to his right foot and the Judge's failure to direct the jury about the relevance of that injury to the probability of the deceased's death being due to a kick; and the third ground has to do with the position in which the applicant says some of the evidence placed him at the time when, according to the Crown case, he inflicted the fatal blow.
In short, all of the grounds have to do with the submission that the Judge should have given the jury a direction favourable to the applicant with respect to aspects of the evidence. None of the grounds, drawn it appears with legal assistance, had to do with any proposition that the Judge has misdirected the jury on the general law, either in failing faithfully to apply Van Den Bemd (1994) 68 ALJR 199 or in any other respect.
It is not the practice in this Court to grant an application for an extension of time routinely, particularly where, as here, the basis upon which it is said that the delay is excusable is not a strong one. It is, one supposes, common enough that the convicted person suffers from mental stress as Mr Batchelar has done. Nevertheless, he did not, it appears, bestir himself until fairly recently to do anything about his conviction.
More importantly, on the information which the Court has, it does not appear that the grounds of appeal which have been put forward are of a kind which is likely to succeed or that the matter has any real substance. I would for myself refuse the application for an extension of time.
DAVIES JA: I agree.
CULLINANE J: I agree.
PINCUS JA: The application is refused.

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