R v Kutchen
[2005] QCA 202
•10 June 2005
SUPREME COURT OF QUEENSLAND
CITATION:
R v Kutchen [2005] QCA 202
PARTIES:
R
v
KUTCHEN, Warwick John
(applicant)FILE NO/S:
CA No 361 of 2004
DC No 1615 of 2003DIVISION:
Court of Appeal
PROCEEDING:
Application for Extension (Sentence & Conviction)
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
10 June 2005
DELIVERED AT:
Brisbane
HEARING DATE:
7 June 2005
JUDGES:
de Jersey CJ, McPherson and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDER:
1. Dismiss the application insofar as it relates to sentence
2. Refuse the application for extension of time within which to appeal against conviction
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CONVICTED PERSONS – where the Court of Appeal previously refused application for an extension of time to apply for leave to appeal against sentence – where applicant sought to rely on a medical report not produced at trial – where there was no basis for the report not being secured for use at trial – where the Court of Appeal had not sanctioned reliance on additional evidence of this character – whether applicant should be granted an extension of time to apply for leave to appeal against sentence
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where applicant contended that the Crown did not produce evidence of falls which could explain the injuries amounting to grievous bodily harm – where this alternative explanation for the injuries could not be sustained in view of the medical evidence – where this issue was the subject of cross-examination and put before the jury at trial – whether conviction is unsafe and unsatisfactory
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – GENERALLY – where applicant contended the trial judge did not properly direct the jury as to shortcomings in the medical evidence – where jury sought redirection regarding some of the medical evidence – whether conviction is unsafe and unsatisfactory
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL; MATERIALITY AND COGENCY – PARTICULAR CASES – AVAILABILITY AT TRIAL – where applicant sought to rely on a medical report not produced at trial – where there was no basis for the report not being secured for use at trial – whether the test for admissibility of fresh evidence satisfied
COUNSEL:
J Cremin for the applicant
D Meredith for the respondentSOLICITORS:
J K Harris for the applicant
Director of Public Prosecutions (Queensland) for the respondent
de JERSEY CJ: On 4 August 2004, following a trial, the applicant was convicted of unlawfully doing grievous bodily harm to Judith Ann Foster on 30 June 2002, and sentenced to four years imprisonment. On 22 March 2005 he filed an application for an extension of time within which to appeal, together with a notice of appeal against conviction and an application for leave to appeal against sentence. He had filed similar documents on 13 October 2004. On 2 December 2004 the Court of Appeal dealt with those applications, refusing his application for an extension of time within which to apply for leave to appeal against sentence, and adjourning his application so far as it related to conviction.
Insofar as the application filed on 22 March 2005 relates to sentence, it is incompetent and must be dismissed. Mr Cremin, who appeared for the applicant, sought to justify the further application in relation to sentence by reliance on the report of Dr Atkinson to which I refer below. For reasons there expressed, the applicant may not at this stage rely on Dr Atkinson’s report. The Court of Appeal on 2 December 2004 certainly did not sanction reliance on additional evidence of that character, as Mr Cremin appeared to suggest in argument.
The applicant’s wife has sworn that the applicant authorised her to institute these proceedings on his behalf. She says that she was advised following the conviction and sentence, by the applicant’s legal representatives, that there was no ground for appeal. She nevertheless sought further advice, and obtaining the relevant transcript took some time, as did securing the further opinion. There is no need to examine these circumstances more closely, in my view, because an appeal against conviction would have no reasonable prospect of success.
The conviction, as interpreted by the learned trial judge when sentencing the applicant, was based on the applicant’s having delivered a blow to Ms Foster’s head which caused an acceleration-deceleration reaction in the brain akin to a head injury sustained in a high speed motor vehicle collision. The applicant delivered that blow within his unit. His explanation was that he simply pushed the complainant who fell backwards onto a carpeted area. The medical evidence led at the trial was to the effect that Ms Foster would not have sustained such injury by those means. The applicant’s out of court explanations for Ms Foster’s injuries were that she must have fallen outside the unit, perhaps down flights of stairs, maybe when intoxicated. Accident was left to the jury, which has found it excluded.
The ground of appeal against conviction which the applicant would wish to ventilate is that the conviction is unsafe and unsatisfactory. It centres on the adequacy of the medical evidence. The particulars of the ground focus on previous falls suffered by Ms Foster, which it is said could explain the injuries which amounted to the grievous bodily harm. There is complaint that the Crown did not produce evidence of the other falls, its case focusing on the injuries sustained on 30 June 2002. There is also a contention that the judge did not properly direct the jury as to shortcomings in the medical evidence.
In support of the present application, the applicant sought to rely on a report dated 7 March 2005 by a neurosurgeon, Dr Leigh Atkinson. In that report, while Dr Atkinson accepts that ‘it is probable that (the complainant) suffered unwitnessed falls and blackouts from time to time particularly while drinking alcohol’, his conclusion favours the prosecution case. That conclusion was that ‘the event on 30 June 2002 … seems to have the strongest temporal relationship to the subsequent pathology’. The issue of other falls featured in both the lay and expert evidence given at the trial. Those aspects aside, there is no basis for thinking such a report could not have been secured for use at the trial. The test which determines the admissibility of fresh evidence at this stage is not satisfied.
A witness, Carmel Bredhauer, gave evidence that the applicant told her that he had pushed the complainant over, and that the complainant was rendered unconscious. The complainant regained consciousness, but her condition steadily worsened. When she was admitted to hospital on 2 July 2002, Dr Olsen excluded an aneurism, by reference to the results of a scan, that scan revealing however a haemorrhage into her left temporal lobe and also the frontal lobe. Dr Hazelton also gave evidence of the brain damage, and its likely cause, saying that if it had resulted from a push, it would have to be ‘a very high energy push’. Both doctors likened the force necessary to produce the injury to the force produced in a motor vehicle collision. It was open to the jury to conclude from the medical evidence, and the applicant’s various accounts, including his concession to having pushed the complainant to the floor in the unit, that he substantially understated his involvement.
The defence reliance on other falls was put squarely before the jury. For example, in his summing up, the learned judge said this:
‘… If you could not exclude in your deliberation a fall on the steps or otherwise outside of the unit or any other fall for that matter and not resulting from a blow from the accused, or a push, then you would have to find him not guilty.’
The issue of other falls was, as I have said, the subject of cross-examination of Dr Olsen, and cross-examination of the lay prosecution witnesses, including the complainant herself. She said none of them occasioned significant injury.
The applicant contends that there were unspecified shortcomings in the medical evidence. Taken with the other evidence the medical evidence amply warranted the conclusion beyond reasonable doubt that the complainant suffered the injuries which constituted the grievous bodily harm on the one occasion, within the unit, as the result of a blow delivered by the applicant.
Mr Cremin suggested the jury betrayed confusion, by seeking redirection, including the re-reading of some of the medical evidence. There is no suggestion of any irregularity in the trial process. The jury’s approach is consistent with carefulness: there is no basis for suspecting confusion.
Having reviewed the record, my view is that the contention that the conviction is unsafe and unsatisfactory is unsustainable. I would accordingly refuse the application for extension of time within which to appeal against conviction.
McPHERSON JA: I agree with what the Chief Justice has written. The application for extension of time within which to appeal against conviction should be dismissed, as should the application relating to sentence.
The suggestion that the condition from which the complainant was found to be suffering on 2 July 2002 might have resulted from trauma sustained by her on 24 June instead of 30 June is not capable of being sustained. It is contrary to the expert medical evidence, as well as other evidence that the appellant was rendered unconscious in the course of the incident on 30 June. Dr Hazelton, who specialises in the field of acquired brain injuries, said in evidence that, although a severe head injury could be sustained in falling from a standing height, “the amount of force generated for this injury would have to be much more severe than that”. There was nothing to suggest that after 24 June, and before the incident on 30 June, the complainant was suffering from the effects of brain trauma of that or, indeed, of any dimension.
KEANE JA: I agree with the reasons of the Chief Justice and with the order proposed by his Honour.
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