R v Dennis

[2006] QCA 100

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dennis [2006] QCA 100

PARTIES:

R
v
DENNIS, Shaun Danny
(Applicant)

FILE NO/S:

CA No 16 of 2006
SC No 5 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

7 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2006

JUDGES:

Jerrard JA, Fryberg and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – whether the interests of justice require the Court to set aside an earlier notice of abandonment and reinstate an appeal – where applicant sought to adduce new evidence on appeal – where applicant alleged failure to adduce evidence at trial resulted in a miscarriage of justice – applicant must provide at least some arguable grounds of appeal and provide an explanation for the delay – applicant failed to provide  arguable grounds of appeal and failed to provide an explanation for the delay

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –  MATTERS CONNECTED WITH CONDUCT OF DEFENCE – LEGAL REPRESENTATION – GENERALLY – application for extension of time to appeal against conviction – no evidence to suggest that defence counsel was intoxicated during trial

Criminal Practice Rules 1999 (Qld), r 70

COUNSEL:

The applicant appeared on his own behalf
L J Clare for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Qld) for the respondent

1. JERRARD JA: On 7 April 2004 Shaun Dennis was convicted by a jury of having murdered Kenneth Harris, and was sentenced to life imprisonment.  He was also convicted of improperly interfering with Mr Harris’ dead body, and sentenced to a concurrent term of two years imprisonment.  Mr Dennis has now applied for the second time for an extension of time within which to appeal against his conviction.

1. The appeal record, including the sentencing remarks of the learned trial judge, revealed that the deceased was a young man with a disability to each of one arm and a leg and physically was no match for Mr Dennis, who had previously assaulted Mr Harris, injuring him.  Mr Dennis killed Mr Harris on the morning of 27 January 2003, at first punching him and then beating him with a length of apparently heavy pipe.  He then concealed the body and provided false explanations for the whereabouts of Mr Harris, before demonstrating remorse by contacting the police and making a full confession.  In that confession he complained of provocative conduct by Mr Harris, causing Mr Dennis to subject him to what proved to be a lethal assault.  Mr Dennis denied having intended to kill, and it appears from questions the jury asked that they were satisfied that Mr Dennis had intended to cause Mr Harris grievous bodily harm.

1. Mr Dennis first filed an application for an extension of time in which to appeal his conviction in November 2004, giving as his grounds for an extension that he had always intended to lodge an appeal, had been told that he had “not much time” within which to do that (by his then solicitor), but had only learnt after the time limit had expired, and from the law books he had read in prison, of the limited period within which he might appeal.  His grounds of appeal, if given leave, were that the deceased constantly engaged in provocative behaviour; that Mr Dennis’ counsel had apparently consumed alcohol during both luncheon adjournments of the two day trial; that the prosecutor had falsely attributed a particular motive to Mr Dennis and the learned presiding judge had failed to correct that; that the investigating detective had changed key words on a statement Mr Dennis had made; that a video taken of an interview with him – which he said clearly demonstrated his remorse and agitation – had not been produced whereas an audio version of the interview was; that the number of blows he had inflicted on the deceased had been exaggerated by the prosecutor; and that the prosecution had said to the jury that Mr Dennis had been splattered with blood, a fact some witnesses contradicted.

1. This Court granted an extension of time by an order made on 14 March 2005.  Having achieved his object of a grant of time, Mr Dennis then filed a notice of abandonment of his appeal, dated 13 May 2005. 

1. Notwithstanding that, Mr Dennis has again applied for an extension of time within which to appeal, this time by an application filed on 12 January 2006.  In that application for an extension he said he had been wrongly advised by a Legal Aid officer that it would be a waste of time and resources to continue with an appeal, that advice having been given by an officer, who allegedly thought Mr Dennis was appealing his sentence, and not his conviction.  That explanation is unconvincing, since the grounds of appeal are all about the conviction.  Mr Dennis also said he had recently come into possession of medical and evidentiary records that would have had a great bearing on his trial, had they been made known to the court.  It had taken him almost two years to gain possession of those, and an appeal (and presumably a re-trial) would give him an opportunity to present medical evidence “previously denied at my trial”.[1]   This was an independent ground for an extension, not dependent on errors by Legal Aid.

   [1]Quoting from the application for an extension filed on 12 January 2006.

1. The proposed grounds of appeal repeat those in his first grounds of appeal, but include some extra ones.  Perhaps the most significant of those is the contention that a psychiatric report:

“…was never put into evidence and if it had been it would have clearly shown evidence of post traumatic stress disorder.  I have recently come into possession of hospital records from Ingham Hospital that shows [sic] that I was admitted in 2001 for post traumatic stress syndrome.”[2]

[2]Quoting from the application for an extension filed on 12 January 2006.

1. Mr Dennis has also provided a list of evidence that he wishes to submit at the appeal hearing. This list includes medical records from the Ingham Hospital.  It seems obvious from his enlarged grounds of appeal that he already has some copies of records from that hospital, but he has not annexed those to any affidavit, or otherwise exhibited them on his application.  It was unclear from the wording of his enlarged grounds of appeal whether or not there actually was a psychiatric report obtained prior to the trial, although Mr Dennis told this Court on this application that one had been obtained, and not used, because the psychiatrist was biased against Mr Dennis.  That last piece of information suggests strongly that there was no sufficient basis for a defence of diminished responsibility, and that was why it was not put forward at the trial.  That makes it very difficult for Mr Dennis to show that a miscarriage of justice resulted from the decision not to run a defence of diminished responsibility.  Nevertheless, Mr Dennis’ most recent correspondence with the Registry, dated 6 March 2006, describes post traumatic stress disorder as a pivotal point for his “grounds of manslaughter”, one which he agreed was not raised at the trial.

1. The contention that medical evidence might have been adduced at the trial in support of a defence (presumably of diminished responsibility) therefore falls a long way short of showing grounds of appeal with some arguable prospects of success, or which should at least be considered by this Court.  Rule 70 of the Criminal Practice Rules 1999 (Qld) allows this Court to set aside a notice of abandonment and to reinstate an appeal, if the Court considers it necessary to do so in the interest of justice.  For Mr Dennis to show that reinstatement of his appeal is so necessary, he should show that he has at least some arguable grounds, and an explanation for his delay.

1. The grounds of appeal, other than that Mr Dennis had a possible defence of diminished responsibility, appear hopeless.  The report from the learned trial judge remarks that the judge saw no sign that counsel was affected by alcohol; more importantly, the transcript reveals none.  Further, the defence of provocation was fully explained to the jury by the judge, and the other complaints Mr Dennis makes are either nitpicking, or wrong, or both.    For Mr Dennis to get anywhere on these medical records, and possible diminished responsibility, he needs to grasp that the issue is not whether he was diagnosed with post traumatic stress disorder, but whether he could prove on a trial that his responsibility for his actions was substantially impaired at the time of the killing.  To raise even the faint possibility of his doing that, a minimum requirement would be that he exhibit to this Court copies of those medical records, apparently from the Ingham Hospital, which he says it has taken him almost two years to obtain; and produce any psychiatric reports which assist him.  Without psychiatric evidence which supports now the existence of that defence then, his prospects appear hopeless too on that defence.

1. In the circumstances I would dismiss this application for an extension of time, leaving it to Mr Dennis to decide if he wishes to take the risk (on another and third application) of swearing an affidavit to which he annexes those medical records and any reports, and the risk of submitting himself to cross-examination on the affidavit.  

1. FRYBERG J: I agree with the order proposed by Jerrard JA and with his Honour's reasons for it.

1. DOUGLAS J: I have had the advantage of reading the reasons for judgment to be delivered by Jerrard JA and agree with them.