R v Madden [2005] QCA 439

Court of Appeal (Qld)|2005-11-28|Before: de Jersey CJ, Keane JA and Mackenzie J Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made

Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE: The applicant was, on the 10th of June 2005, convicted by a jury of the offence of doing grievous bodily harm and he was sentenced to six years' imprisonment. He committed that offence during the operational period of a suspended six month term imposed on the 22nd of March 2004. The sentencing Judge activated that six months' sentence but ordered that it be served concurrently with the six-year term.

The applicant filed an application for extension of time within which to appeal on the 18th of August 2005. That application contained no explanation for the delay. The applicant has, however, informed us today that the reason was late notification to him of what was required for an appeal.

The ground of the applicant's proposed appeal against conviction application for leave to appeal against sentence is expressed in the form as follows:

"Trial could have been handled better. Sentence was manifestly excessive."

The applicant has informed us this morning that things he asked to be put to witnesses were not put by his counsel but there is no further particularisation of the suggestion that the trial was not to his liking.

In my view, the application for extension of time should be refused because neither the appeal against conviction nor the application for leave to appeal against sentence would have any prospect of success.

The offence was committed outside a nightclub in the early morning. There was no dispute that the complainant, who was intoxicated, was struck with one blow to the head and fell to the ground again striking his head and fracturing his skull. The defence case was that the applicant was not the person who administered that blow.

While no Crown witness purported to identify the applicant, a number of witnesses described the clothing and general physical appearance of the assailant and those features matched those of the applicant. There was no doubt the applicant was in the vicinity at the time. There was also evidence of a material lie told to the police in the course of an interview about the direction the applicant had turned when leaving the nightclub. He claimed to have turned in a direction away from the fight but video evidence showed that instead he had turned in a direction leading him to the fight.

Defence counsel made as much as could be made of inconsistencies in the evidence of the eye witnesses. He put forward an alternative explanation for the lie, that it was merely a case of mistake. It is of some significance that the learned Judge, when sentencing the applicant, described the circumstantial case against the applicant as simply overwhelming.

The Judge described the evidence of the shirt worn by the applicant as the "smoking gun" which led to his detection and the lie about direction as "obvious".

There is no suggestion the summing up was defective or that the trial miscarried in any particular way. There is no basis for thinking an appeal against conviction would have any prospect of success. As to sentence, the Judge described it as an unprovoked attack by the applicant, who was 39 years old, on an apparently intoxicated man.

The consequences for the complainant have been absolutely horrendous. He is left with permanent, massive brain damage. The applicant was remorseless. He had prior convictions for assault and had been sentenced on the 22nd of March 2004 to the suspended six-month sentence for breaching a probation order which in turn had been imposed for the commission of the offence of assault occasioning bodily harm while armed. The instant offence occurred on the 27th of June 2004.

In all of the circumstances, there could be no sensible suggestion that imprisonment for six years for this offence was manifestly excessive.

The application for extension of time should be refused.

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