R v Mortimer

[2005] QCA 361

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mortimer [2005] QCA 361

PARTIES:

R
v
MORTIMER, Glenn Kenneth
(applicant/appellant)

FILE NO/S:

CA No 164 of 2005
DC No 133 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

30 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2005

JUDGES:

McPherson and Keane JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

1.    Appeal against conviction dismissed

2.    Application for leave to appeal against sentence    dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – OTHER MATTERS – where burglary in the night and assault occasioning bodily harm – identification evidence – self‑represented appellant put forward a different version of facts on appeal

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – offences of burglary in the night and assault occasioning bodily harm – whether sentence of imprisonment for two years and three months excessive

Criminal Code 1899 (Qld), s 419

COUNSEL:

The applicant/appellant appeared in person
M R Byrne for the respondent

SOLICITORS:

The applicant/appellant appeared in person
Director of Public Prosecutions (Queensland) for the respondent

1. McPHERSON JA: In May 2005 the appellant Glenn Mortimer was convicted after a trial in the District Court at Rockhampton of burglary in the night and assault occasioning bodily harm. The victim of the assault was a man named Russell Riley who was living in a house which at the time he shared with a Mrs Walker at no 4 Hardacre Street in Rockhampton. On the night or at about 4 am in the early morning of 11 July 2003, the appellant apparently entered the house where Riley was sleeping, began punching him in the face, dragged him out of bed, and kicked him breaking four of his ribs. At the trial, Dr Reynolds, who gave his evidence from the hospital records made after Riley was admitted to hospital, said Riley had suffered a ruptured spleen in the assault, as well as the broken ribs and bruises and injuries around the eyes. Riley was attended by a surgical team in hospital and discharged after seven days.

1. Because of the extent of the injuries the assault had originally been charged as one of causing grievous bodily harm; but the judge directed a verdict in favour of the appellant on this issue and the trial proceeded on the lesser count of occasioning bodily harm which the jury found proved.

1. Practically speaking, this left almost nothing in issue at the trial except for the critical question of the identity of the attacker. As to that, Riley said that he recognised the appellant when he woke up and found him assaulting him.  He also said he recognised the appellant’s voice, when in the course of the assault he shouted at him some words implying that Riley had burned his car. The appellant did own a car, but examination of it after this incident showed no sign of its having been burnt.

1. His Honour directed the jury in accordance with the requirements of R v Turnbull and Domican v The Queen stressing the dangers of honest but mistaken identification.  The case was not one of identification after a fleeting glimpse of an assailant on a first occasion. The appellant and Riley had met each other some time earlier while they were undergoing treatment at a mental health ward in Rockhampton. Later they lived together in a house at Hawkins Street, which was leased from the Housing Commission by Riley. After some time he had asked the appellant to leave the house because he suspected him of having or using marihuana on the premises. After the appellant left as requested, Riley found he was unable to meet the rent, and he himself left or was evicted from the premises. He was then invited by Mrs Walker to share with her the house at Hardacre Street, which is where he was when the assault took place. The house was described in evidence as a duplex, of which he occupied one part and Mrs Walker the other.

1. Apart from Riley’s own evidence, there was and is other material supporting the claim that his assailant in the night was the appellant. Mrs Walker, who gave evidence at the trial, testified that she heard sounds of a disturbance and heard Riley cry out “Stop, Glen, stop”. The appellant’s name is Glenn. Two days after the incident the appellant told her in the course of conversation about the incident that Riley was “acting” and that the appellant had only “tapped” him. He continues to belittle Riley’s injuries. The appellant was later located at Mrs Walker’s residence, apparently hiding, on the following day 14 July 2003.  When released from custody he went to Hardacre Street and stayed there with Mrs Walker.

1. This somewhat unexpected turn of events might conceivably have raised questions about the reliability of some of the evidence at the trial, except that, first, there is no doubt that Riley sustained serious injuries while at home on the early morning of 11 July 2003; and, secondly, the appellant in his handwritten outlines on appeal, gives his account of that occasion. He says of it that:

“a brief period of violence occurred. The said violence was necessary to subdue Riley.”

The appellant himself did not give or call evidence at his trial in the District Court; but the foregoing statements are part of the account given by him in his handwritten outlines on appeal. He claims that Riley was causing Mrs Walker trouble with threats of violence and sexual abuse; and that she asked the appellant “to attend her residence in the hope he could convince Riley to move on”. It was, he says, in the course of complying with her request that “the brief period of violence” occurred that was “necessary” in order to “subdue” Riley.

1. Even if this wholly unsworn statement were to be accepted at face value, it would not have provided the appellant with any justification for assaulting Riley at home in the middle of the night. Both the timing and the extent of the assault went well beyond any use of force in expelling Riley that could have been justified by a claim of authority from Mrs Walker in ejecting him. Forcible entry of this kind is unlawful under s 70 of the Code and has been so under our laws since about the 12^th century. The appellant’s action was simply a case of home invasion and forcible eviction which Mrs Walker herself could not in law have authorised or undertaken even if she had purported to do so.

1. At the hearing of the appeal by video link, the appellant nevertheless persisted in his assertion that it was Riley who attacked him and not vice versa. He conceded that he did not recall sustaining any injuries, whereas Riley’s injuries were severe. He denied having broken into Mrs Walker’s house, but claimed he was there earlier in the evening by her invitation, and used his presence there to fulfil her wish (as he claimed it to be) to eject Riley early in the morning. Under s 419(4) of the Code the offence of burglary is now constituted if an indictable offence is committed “in” a dwelling house independently of any breaking or entering. In any event, no case remotely resembling the appellant’s version on appeal was put in cross-examination to either Mr Riley or Mrs Walker at the trial.

1. It is clear that the appellant has no grounds at all for setting aside his conviction for these quite serious offences. He complains of the quality of his legal representation, but he had an experienced barrister at his trial. Without contradiction from the appellant at the trial, his counsel announced that his client would not be giving or calling evidence, and he did not in fact do so. On the appeal he did not deny giving those instructions, but acknowledged signing a written document confirming that he did not intend to give evidence himself.  Any remaining suspicion that in this and other matters at the trial counsel was not following his client’s instructions is dispelled by the fact that there had been an earlier trial in January 2005, which had had to be abandoned because of the introduction on that occasion of inadmissible material. That trial had, however, progressed far enough to show that the appellant’s instructions to the same counsel on that occasion corresponded with those at this trial in May 2005.  The appellant also complained that the trial judge was biased against him in his summing up. But there is nothing at all to justify that conclusion, and indeed it was the judge himself who introduced the question of the sufficiency of the evidence to support a conviction of causing grievous bodily harm.

1. In my opinion, there is no valid reason for supposing that the appellant did not have a trial according to law or that he was not justly convicted of the offences charged.  So far as sentence is concerned, the appellant carried out a ferocious and sustained physical attack on the complainant while he lay defenceless and asleep in bed in his own home at 4.00 am. The appellant was then 41 years old and has a history of offending in Queensland, New South Wales and the Northern Territory. Many of the convictions are for traffic offences and the like, but there are others that display a disposition to violence.

1. Mr Riley, who was set upon here, had no reason to expect the assault on him and had no real opportunity to defend himself against it. He suffered a great deal of pain and, according to his victim impact statement, has undergone a degree of personality change as a result. The learned sentencing judge described him as “a somewhat fragile” man, who, the appellant well knew, suffers from mental health problems.  The unprovoked assault has exacerbated his fears of society, and he no longer feels safe in his own home.

1. The appellant has himself had mental problems, although when, on sentence, the sentencing judge mentioned schizophrenia, the appellant broke in to say and to insist that he had been “misdiagnosed”.  He showed no signs of remorse for his merciless conduct on this occasion, and, of course, he is not entitled to claim the benefit in mitigation of a guilty plea. The sentence imposed here of imprisonment for two years and three months for both the burglary and the assault does not appear excessive or unjust having regard to the nature or circumstances in which it was committed, or the extent of the injuries and pain that were inflicted on the unoffending victim. The applicant was given the benefit of some time in custody before his first trial. He was not entitled to more because he was later in custody on charges of other offences.

1. I would dismiss the appeal against conviction, as well as the application for leave to appeal against sentence.

1. KEANE JA: I agree with the reasons of McPherson JA and with the orders which his Honour proposes.

1. DOUGLAS J: I have had the advantage of reading the reasons for judgment of McPherson JA and agree with them and with the orders his Honour proposes.