R v The Queen - [2001] QCA 305

[2001] QCA 305

COURT OF APPEAL

McMURDO P
WILLIAMS JA
BYRNE J

CA No 68 of 2001

THE QUEEN

BRISBANE

..DATE 30/07/2001

JUDGMENT

THE PRESIDENT: The applicant was convicted of one count of assault occasioning bodily harm on a six month old child on 27 December 1999. On 9 February 2001 he was sentenced to 18 months imprisonment. This application to extend time within which to appeal was dated 21 March 2001 and was filed and served on 22 March 2001. His time for appealing expired on 7 March 2001, for conviction on 8 March 2001 for sentence, and was, therefore, about two weeks out of time.

The applicant explains the reasons for delay in his application and orally in this Court (but significantly not in a sworn affidavit) as being that he was unaware of the time limit or the process of appeal against sentence and conviction until after the expiration of the relevant time periods. As soon as he became aware of these matters he lodged these applications.

Were the extension granted he would argue the following grounds of appeal, which emerged from his oral submissions and from his applications. First, the Judge allowed inadmissible evidence to go to the jury as to an incident in November 1999, about which his partner admits responsibility and in which he had no part. It should be noted that his partner did not give evidence at the trial for either the prosecution or the defence.

Second, he says he was not properly legally represented. Third, he says that witnesses lied under oath and, fourth, he claims the decision to convict on the evidence was unsafe and unsatisfactory. Finally, he says the sentence was manifestly excessive.

Having read the Judge's summing up, there seems to have been ample evidence upon which the jury could have been satisfied of the guilt of the applicant. The jury were told the evidence was circumstantial and were given the appropriate warnings. The complainant was a six month old female child. The applicant lived with the child's mother in a de facto relationship. The child suffered extensive bruising to her face and body, including a 7.5 centimetre in diameter bruise around her left eye. The defence case was that the appellant accidentally dropped the child in a fall in which he himself was injured, but such an explanation was inconsistent with the medical evidence called at the trial. There was other evidence that the applicant on occasions pinched the child's cheek until she cried. At the time the injuries occurred the child was in the applicant's control. The Judge seems to have fairly put the defence case to the jury, which emphasised that there was no direct evidence that the applicant lost his temper or that the baby's crying upset the applicant and that after the child was injured the applicant woke her mother and, within 15 minutes, they took the child to the hospital, even though the applicant, himself, had been injured. The applicant…

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.

Continue reading R v The Queen

Details

AGLC: R v The Queen [2001] QCA 305
Case: [2001] QCA 305
Decision Date: 30/07/2001

CaseChat Overview and Summary

In the case of The Queen v. Brisbane, the applicant, Brisbane, sought an extension of time to appeal against both his conviction and sentence for assault occasioning bodily harm on a six-month-old child. Brisbane had been convicted on 9 February 2001 and sentenced to 18 months imprisonment. The application for extension of time was lodged on 21 March 2001 and served on 22 March 2001, which was about two weeks after the expiration of the relevant time periods. Brisbane claimed that he was unaware of the time limit and the process of appeal until after the time periods had expired.

The court needed to determine whether the applicant had demonstrated sufficient reasons for the late lodgment of the appeal and if the grounds of appeal were promising. The applicant argued several grounds for appeal, including the admission of inadmissible evidence, inadequate legal representation, witness untruthfulness, the safety and satisfaction of the conviction, and the excessiveness of the sentence. The court reviewed these grounds and found that the judge had fairly presented the defence case to the jury and provided appropriate warnings about the circumstantial nature of the evidence. The court also noted that the applicant had the opportunity to give or call evidence but chose not to do so.

The court found that the applicant had not established the contention of inadequate legal representation and that the prospects of success on an appeal were not promising. Regarding the sentence, the court noted that Brisbane had a significant criminal history and the sentence did not appear to be manifestly excessive. The court concluded that the applicant had not demonstrated satisfactory grounds for the late lodgment of the appeal or promising grounds of appeal if the extension were granted. Therefore, the applications for extension of time were refused.

Orders