R v Everett - [1998] QCA 455

COURT OF APPEAL

[1998] QCA 455

McMURDO P
PINCUS JA
CHESTERMAN J

CA No 351 of 1998

THE QUEEN

ROSS LINTON EVERETT

BRISBANE

..DATE 02/12/98

JUDGMENT

PINCUS JA: This is an application for an extension of time within which to give notice of appeal, or notice of application for leave to appeal. The written grounds stated in the notice of appeal and application for leave to appeal seem to challenge the conviction (on a plea of guilty) on the ground that the evidence in the case was untrue, as well as challenging the sentence. It appears from the forms prepared by or on behalf of the applicant that he was convicted on
2 April 1998 of grievous bodily harm and that he filed this application six months later, on 2 October 1998. Although the document, as I have mentioned, is consistent with the idea that there would be an attack on the conviction, in fact, as argued by Mr Everett, the complaint appears to be that the sentence was excessive and not that his plea of guilty should be gone behind.

We have the judge's remarks on sentence, from which it appears that someone told the applicant's brother Darren that one Bauer had behaved in a potentially aggressive way or had said something potentially aggressive. The judge was not satisfied that either of these things was done. Then, the judge said, Darren phoned for assistance and in response to that Malcolm Everett and the applicant arrived. To summarise, the judge found that Malcolm king hit Bauer and the judge was satisfied that Bauer was disabled by being punched by Malcolm. While he was thus disabled, the judge said, the applicant punched Bauer a number of times in the face and head, causing him grievous bodily harm. The judge detailed the injuries to Bauer and their effect. I take the injuries conveniently from the submissions made by the respondent which seemed to be accurate in this respect:

"The complainant was hospitalised with:

.bilateral fractures of both cheekbones - the facial structure was depressed and required the insertion of metal plates to correct it;

.facial swelling and 2 black eyes necessitating sutures.

As a result of complications the complainant almost died. He developed large blood clots on his lungs and haemorrhaged from the mouth. His teeth were replaced with dentures. He has permanently lost feeling in his lip and nose. There are ongoing headaches. He could not work in his business or on his cattle property for 10 weeks. He can no longer muster his cattle without the risk of further damage. His family is stressed and socially withdrawn as the result of ... [the] attack."

To return to the judge's remarks on sentence, His Honour said he was being careful not to visit all the consequences on Malcolm and Darren, the implication from that being, of course, that it was the applicant who did the real damage, and that does not seem to be in dispute. The judge then sentenced…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] QCA 455
Decision Date: 2 December 1998

CaseChat Overview and Summary

In the case of R v Everett, the appellant, Ross Linton Everett, sought an extension of time to lodge an appeal against both his conviction and sentence. Everett was convicted on 2 April 1998 of grievous bodily harm and subsequently filed his application for an extension of time on 2 October 1998, six months later. The appeal was based on the grounds that the evidence presented in the case was untrue and that the sentence was excessive. However, the court noted that Everett's primary complaint appeared to be the severity of the sentence, rather than challenging the validity of his guilty plea.

The legal issues at hand involved whether the court should grant an extension of time for Everett to lodge his appeal, considering his lack of knowledge about the appeal process and the substantial delay in filing the application. The court examined the circumstances of the case, including the severity of the injuries sustained by the victim, Bauer, who suffered bilateral fractures of both cheekbones, facial swelling, and other complications that led to almost fatal consequences.

The Court of Appeal, consisting of McMurdo P, Pincus JA, and Chesterman J, deliberated on the matter and ultimately decided that the application for an extension of time should be refused. Pincus JA, delivering the judgment of the court, found that Everett did not provide a satisfactory reason for the significant delay in filing the application. Furthermore, the court did not see a reasonable prospect of success on the challenge to the sentence, which was four years imprisonment with a recommendation for parole after 15 months. Consequently, the appeal was dismissed, and the order was that the application for an extension of time was refused.

Orders