R v Peterson

[2007] QCA 15

SUPREME COURT OF QUEENSLAND

CITATION:	R v Peterson [2007] QCA 15
PARTIES:	R v PETERSON, Michael John (applicant)
FILE NO/S:	CA No 316 of 2006 DC No 276 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	30 January 2007
DELIVERED AT:	Brisbane
HEARING DATE:	30 January 2007
JUDGES:	McMurdo P, Williams JA and Jerrard JA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for an extension of time within which to appeal against conviction is refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where applicant convicted of assault occasioning bodily harm and sentenced to nine months imprisonment – where applicant filed for extension of time to appeal against that conviction, two months late – where delay was related to assertions of earlier applications – whether any earlier applications were received by Court's Registry – whether the ground of appeal of unsafe and unsatisfactory conviction could succeed
COUNSEL:	The applicant appeared on his own behalf D Meredith for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT:  The applicant was convicted after a jury trial on 24 August 2006 of one count of assault occasioning bodily harm and was sentenced to nine months imprisonment.  He seeks an extension of time in which to appeal against his conviction.  Were he granted the extension of time he would argue that his conviction was unsafe and unsatisfactory and contrary to law.  He is self-represented in this application, although he was legally represented at trial.

His application for an extension of time was filed on 21 November 2006, almost two months late.  The only written explanation given by him for the delay is set out in his application in these terms:  "Three applications later!!".

The results of my inquiry of this Court's Registry are that no application of any type was received from the applicant until 21 November 2006.  He has today tendered some material and claims to have submitted a Legal Aid application for an appeal within time.  His material does not establish the correctness of that assertion.  His material, tendered as Exhibit 1, fails to provide any proper explanation for his delay in filing his appeal.

The applicant has not further addressed the reason for this delay in his written outline of argument, or indeed in his oral submissions.  Instead he has addressed, both in his written outline and orally, the grounds of appeal were an extension granted. 

His first written contention is that there may have been inconsistencies between the complainant's initial statement to police and her evidence at trial.  He conceded at the hearing of this application that this issue was explored at trial with the complainant by his Counsel. 

Whilst this Court has not been provided with a record of the evidence at trial, we have been given a copy of the Judge's summing-up and sentencing remarks.  The Judge's summing-up shows the following.  The offence involved the applicant's alleged assault on his former de facto wife in the context of a domestic dispute.  The complainant gave evidence that the applicant assaulted her during the course of an argument, apparently without any provocation.  She said the applicant damaged his DVD player.  They then struggled over the DVD player whilst it was still connected to the television.  He next threw her onto a bed so forcefully that she hit her head against the wall, cutting her head.  It was this injury which was said to constitute bodily harm.  The applicant gave evidence contradicting that of the complainant.  He said that the complainant, not the applicant, had damaged the DVD player.  In the course of swinging the DVD player around she hit herself in the head with it and was injured.  He did not injure her.

Whilst the Judge's summing up to the jury does not refer to any particular inconsistencies between the complainant's evidence at the trial and her initial statement to police, the applicant has not demonstrated that there were any significant inconsistencies.  But, even if there were such inconsistencies, he concedes these were explored at trial by his Counsel.

The applicant has not shown that any miscarriage of justice is likely to have resulted in respect of this purported ground of appeal.  Any appeal against conviction based on this contention seems unlikely to succeed.

The applicant's second written contention were he given an extension of time to appeal against his conviction, is that the issue of provocation was not left to the jury. 

The Judge told the jury that matters such as accident or provocation did not apply in this case.  The Judge also told the jury that before convicting the applicant they must be satisfied that the assault occurred in the way outlined by the complainant.  As the Judge observed in his sentencing remarks, the jury's verdict of guilty therefore involved the jury's acceptance of the complainant's evidence.

It follows that, even if there were some evidence capable of raising provocation, the jury rejected it if they followed the Judge's directions, which we must accept they did. It does not seem to me that the applicant has demonstrated that this contention provides promising prospects of success on appeal, particularly in the light of section 668E(1A) Criminal Code.

The third point raised orally in argument by the applicant was that his Counsel should have been allowed to cross-examine the arresting police officer as to the fact that, shortly after the alleged offence when first questioned by police, he gave a version of events consistent with his evidence at trial and consistent with innocence.

Such evidence would appear to be inadmissible as self-serving.  There is no suggestion that the applicant was accused in cross-examination of recent invention.  This potential ground of appeal does not seem to provide a sound appeal point.

The applicant's final submission made orally was that on another earlier occasion the complainant was involved in an altercation with him and was charged with assaulting him, although these charges were later dropped.  He points out that his Counsel did not pursue this with the complainant at trial. 

There may have been good tactical forensic reasons for that decision of the applicant's Counsel, for example, section 15(2) Evidence Act 1977 (Qld). The matter seems at best to have been a peripheral issue. The decision of his Counsel not to pursue this line of cross-examination at trial does certainly not appear to be a promising appeal point.

Significantly, his experienced defence Counsel at trial did not ask for any redirections on these or any other points.

In conclusion, the applicant has failed to produce evidence to reasonably explain his delay in lodging his appeal against conviction within time.  That would not be fatal to his application if he showed that an extension of time were necessary to avoid a miscarriage of justice.  He has not, however, demonstrated that, were an extension of time granted, he has real prospects of success on an appeal against conviction.  For those reasons I would refuse his application for an extension of time to appeal.

WILLIAMS JA:  The applicant bought with him to Court a copy of the transcript of the first day of trial.  I perused quickly parts of it during the course of oral argument in Court this morning.  That quick perusal did not reveal anything which causes me to doubt the validity of the reasoning of the President, with which I agree.  The application should be refused.

JERRARD JA:  I agree with the orders that the application be refused but with some hesitation.  Mr Peterson had wanted to argue a ground of appeal to the effect that the learned Judge should not have withheld a possible defence of provocation from the jury. 

The verdict and the material before this Court show that the jury accepted the complainant's evidence of how Mr Peterson had injured her head.  But it seems to me that that evidence was not necessarily inconsistent with Mr Peterson having a defence of provocation available to him.  It was accordingly a strong step for the learned Trial Judge to withhold that possible defence from the jury, which he did it seems with the agreement of Counsel. 

However on this application for an extension of time within which to appeal, Mr Peterson has not suggested that he did assault the complainant as she said he did because of any provocation by her.  He has continued on the hearing of the appeal to say that he did not assault her as she claims and he did not really identify any provocation which was offered to him before the assault about which she complained.  He had to do more to get an extension of time because he had to show that he had some prospects of success if he was allowed to appeal.  At present all he shows is the possibility that the Judge was wrong.

THE PRESIDENT:  The order is the application for an extension of time within which to appeal against conviction is refused.

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