R v WP

[2006] QCA 160

SUPREME COURT OF QUEENSLAND

CITATION:

R v WP [2006] QCA 160

PARTIES:

R
v
WP
(appellant)

FILE NO/S:

CA No 278 of 2005
DC No 171 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maryborough

DELIVERED EX TEMPORE ON:

15 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2006

JUDGES:

McMurdo P, Keane JA and Helman J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - FRESH EVIDENCE - GENERAL PRINCIPLES - where appellant convicted by a jury of one count of doing grievous bodily harm to an infant - where complainant suffered brain damage and retinal haemorrhaging as a result of violent shaking - where complainant was appellant's infant daughter - where appellant had sought and obtained an extension of time to enable his appeal on the grounds that new evidence would become available - where no new admissible evidence was put before this Court - whether the verdict was reasonably open to the jury on the evidence

COUNSEL:

The appellant appeared on his own behalf
P F Rutledge for the respondent

SOLICITORS:

The appellant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT:  Justice Keane will deliver his reasons first.

KEANE JA:  On 8 June 2004 the appellant was convicted upon the verdict of a jury of one count of unlawfully doing grievous bodily harm to an infant to whom I must refer as SCW(“S”).  He was sentenced to four and a half years imprisonment.  The offence was alleged to have occurred some time between 15 April and 12 May 2003.  The complainant was the appellant's daughter.  She had been born on 15 April 2003.  The Crown case was that baby S had suffered brain damage and retinal haemorrhaging as a result of violent shaking. 

The appellant did not seek to appeal against his conviction until 28 October 2005, by which time an extension of time was necessary to enable any appeal to proceed.  The appellant applied for an extension of time within which to appeal against his conviction and, on 17 February 2006, that application was granted. 

The application for an extension of time was supported by the appellant's written assurance that "new evidence...has come into [his] possession" which showed that his wife, DW, had mistreated baby S on or about 8 or 9 May 2003 before the baby was first presented to hospital in a distressed condition by the appellant and his wife.  The foreshadowed evidence was said to include eyewitness testimony and evidence of admissions by the appellant's wife.

This Court granted the extension of time on the express footing that the grant of the extension would enable the appellant "to apply for Legal Aid and that will then enable Legal Aid to fully investigate the matter and to assist the Court in determining whether or not there is now available evidence which puts in question the guilt of the applicant".

The appellant's notice of appeal asserted that the verdict was "unsafe" and that the appellant had "new evidence".  In the event, no new evidence has been forthcoming.  On the hearing of this appeal the appellant seeks to rely on the hearsay statements upon which he relied in support of his application for an extension of time within which to appeal.  This Court is unable to act upon those hearsay statements as evidence that the appellant's wife had caused the injuries suffered by   baby S.

As to whether the verdict was one to which a reasonable jury might reasonably have come on all the evidence, the evidence at trial amply supported the verdict reached by the jury. 

Baby S was born on 15 April 2003.  Her birth was without complications.  She was presented to hospital suffering seizures on 9 May 2003.  The cause of her distress was not established at that time and she went home.  She was presented to hospital again on 11 May 2003. 
At trial there was expert medical testimony that baby S was suffering brain damage and retinal haemorrhaging as a result of violent shaking.  Her injuries were said to be not such as could have been inflicted accidentally. 

At the time baby S was admitted to hospital on 11 May 2003 there were only two people living in the same house with her: the appellant and DW.  DW denied shaking the baby in a violent way at any time between her birth and her admission to hospital on 11 May 2003. 

Another witness, Mr CL, gave evidence that he had seen the appellant shaking the baby when she was crying, without support for her head.  On the night of 9 May, when CL was staying in the house, he heard the baby screaming and was told on the following morning that the appellant and his wife had taken the baby to hospital.  CL spent the next night at someone else's house.  He was not at the house prior to when the baby was admitted to hospital on 11 May 2003.

Another witness, Mr TMcC, gave evidence that on one occasion he saw DW shake the baby but that this was not "really, really hard".  Mr McC gave evidence of a conversation between the appellant and his wife after the appellant's wife had provided a statement to the police.  She said to the appellant, "I've seen you shake the baby."  The appellant replied, "I've seen you shake her too."  The appellant's wife replied, "That's absolute bull." 

Having regard to this evidence, it is clear that the verdict of the jury was one which was reasonably open to them. 

In conclusion there is no reasonable ground for doubting the soundness of the jury's verdict.  No new evidence has been adduced to cast doubt on the appellant's guilt.  In my submission the appeal should be dismissed.

THE PRESIDENT:  I agree.

HELMAN J:  I agree.

THE PRESIDENT:  The order is the appeal is dismissed.

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