R v Mizzi - [2012] QCA 252

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mizzi [2012] QCA 252

PARTIES:

R
v
MIZZI, Mark Anthony
(applicant)

FILE NO/S:

CA No 199 of 2012
DC No 122 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED EX TEMPORE ON:

19 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

19 September 2012

JUDGES:

Fraser JA, McMeekin and Henry JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – LEAVE TO APPEAL – EXTENSION OF TIME – where the applicant was convicted on his own plea of guilty to assault occasioning bodily harm whilst armed – where the applicant had swung a beer bottle into the complainant’s head causing a cut that required four stitches – where the applicant was sentenced to 15 months imprisonment with immediate release on parole – where the notice of appeal was given nine months out of time – where the applicant claims he was not informed by his solicitor or barrister that he had a right to appeal – where the applicant submits he struck the complainant in self defence and alleges his counsel had a conflict of interest – whether the appeal is a viable one – whether the application for an extension of time should be granted

Criminal Code 1899 (Qld), s 671

Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, considered
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, considered

COUNSEL:

The applicant appeared on his own behalf
B J Merrin for the respondent

SOLICITORS:

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

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…

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.

Keep reading for free

Create a free CaseChat account to read R v Mizzi and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] QCA 252
Decision Date: 19/09/2012

CaseChat Overview and Summary

In the matter of the Queen versus Mizzi, the applicant seeks leave to appeal against his conviction and sentence, arguing that his notice of appeal was filed out of time and that he was not properly advised of his right to appeal by his legal representatives. The applicant was convicted of assault occasioning bodily harm while armed, having swung a beer bottle into the complainant's head, resulting in a cut requiring four stitches. He was sentenced to 15 months imprisonment with immediate release on parole. The applicant's primary contention is that his notice of appeal was filed nine months beyond the statutory deadline and that he was not informed by his solicitor or barrister of his right to appeal. Additionally, the applicant claims that he acted in self-defence and that his counsel had a conflict of interest, which may have compromised his legal representation.

The court was tasked with determining whether the appeal was viable and whether the application for an extension of time should be granted. The viability of the appeal hinged on the merits of the applicant's claims regarding his right to appeal and the alleged conflict of interest. The court considered the applicant's assertions about his self-defence and the impact of the alleged conflict of interest on his legal representation. Furthermore, the court assessed the credibility of the applicant's claims about not being informed of his right to appeal and whether any procedural unfairness warranted an extension of time.

The court found that the applicant's claims of not being informed of his right to appeal were not credible, given the evidence and the procedural safeguards in place. The court also considered the applicant's contention that he acted in self-defence and the potential conflict of interest, but ultimately determined that these issues did not warrant an extension of time. The court held that the appeal was not viable due to the significant delay in filing the notice of appeal and the lack of credible evidence supporting the applicant's claims. Consequently, the application for an extension of time was refused, and the applicant's appeal against his conviction and sentence was dismissed.

Orders

Orders of the court

The application is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Mizzi [2012] QCA 252
PARTIES:	R v MIZZI, Mark Anthony (applicant)
FILE NO/S:	CA No 199 of 2012 DC No 122 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED EX TEMPORE ON:	19 September 2012
DELIVERED AT:	Brisbane
HEARING DATE:	19 September 2012
JUDGES:	Fraser JA, McMeekin and Henry JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – LEAVE TO APPEAL – EXTENSION OF TIME – where the applicant was convicted on his own plea of guilty to assault occasioning bodily harm whilst armed – where the applicant had swung a beer bottle into the complainant’s head causing a cut that required four stitches – where the applicant was sentenced to 15 months imprisonment with immediate release on parole – where the notice of appeal was given nine months out of time – where the applicant claims he was not informed by his solicitor or barrister that he had a right to appeal – where the applicant submits he struck the complainant in self defence and alleges his counsel had a conflict of interest – whether the appeal is a viable one – whether the application for an extension of time should be granted Criminal Code 1899 (Qld), s 671 Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, considered R v Tait [1999] 2 Qd R 667; [1998] QCA 304, considered
COUNSEL:	The applicant appeared on his own behalf B J Merrin for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent