R v Martin [2002] VSCA 16

5. The Crown case in relation to this offence was briefly as follows. On 20 November 1999 the applicant had been drinking at various hotels in Kyneton and, that evening, having been evicted from one of the hotels after consuming a considerable quantity of alcohol, returned to the house in which he was staying in Piper Street, Kyneton. Earlier that day the applicant had been involved in a dispute in the Shamrock Hotel. One Shane Muir, who had been drinking in a nearby hotel, observed this and saw the applicant return to his house in Piper Street. Muir took it upon himself to confront the applicant, even though he did know him or what had happened at the Shamrock Hotel. The dispute did not involve him at all. As the judge found, inflamed by alcohol, Muir crossed the road and knocked on the door of the applicant's house. The applicant answered the door, and after some unfriendly preliminaries, a fight followed. During the course of a brief but intense fight, the applicant and Muir fell to the ground, with Muir apparently getting the better of the applicant. Hoping to bring the fight to a stop, the applicant then bit Muir on the upper right ear, effectively severing the upper portion of the ear from Muir's head. The judge said that Muir then made repeated requests for the return of his ear, but the applicant bragged and gloated that he had won the fight and had eaten the ear, which was in fact the case.

8. Muir was subsequently taken to the Kyneton Hospital and from there to the Royal Melbourne Hospital. He was operated on the following day, and later underwent four further operations in an endeavour to reconstruct his ear. The applicant also suffered a number of bruises during the altercation and Muir was himself charged and pleaded guilty to recklessly causing injury to the applicant.

11. The applicant maintained that he bit Muir's ear in self-defence, but, by its verdict, the jury rejected that and accepted instead that his actions were not intentional but reckless. The applicant has some 35 prior convictions from 13 court appearances between December 1980 and January 1999. A number of these prior convictions involved drunkenness and seven involved matters of assault including a prior conviction for recklessly causing serious injury. The sentences imposed include fines, short periods of imprisonment, imprisonment to be served at an attendance centre, a community-based order, and a sentence of imprisonment wholly suspended, which this particular conviction breached. Furthermore three substantial fines which were imposed on the applicant over the years had been converted to community-based order involving community work.

14. The sentence having been imposed on 13 December 2000, the applicant sought leave to appeal against conviction on 9 May 2001, and an application for extension of time within which to lodge notice of appeal on the same day. We do not accept that the statement by the applicant to the President on 30 March 2001 that he wished to appeal his conviction constituted an application for extension of time. The application for leave to appeal was based on the sole ground that the verdict was against the weight of the evidence, and the application for an extension of time is sought on the ground that "I believed that my solicitor had lodged the appeal". There is some reason to doubt this latter statement because we have been informed by Mr Pearson that the applicant's former solicitors had told him that there was no merit in an appeal against conviction. There is also the fact that there was filed by those solicitors the application for leave to appeal against sentence.

17. Subject, of course, to the Court being satisfied that there has been no obvious miscarriage of justice, it is well established that this Court will only grant leave to extend time to file an application for leave to appeal against conviction if it is satisfied on appropriate material, first, that sound reasons exist to explain the failure to apply for leave to appeal within the time limited by statute, and, secondly, that there is merit in the proposed application in the sense that the applicant has reasonable prospects of success if the application were to proceed; see e.g. R. v. O'Keefe[1]; R. v. John Carson Craker[2]. The present application for an extension is supported by little other than the ground appearing in the application asserting that the applicant believed that his solicitor had lodged the appeal. Although there has been put before us some handwritten explanation said to have been written by the applicant, no affidavit material has been put before the Court and nothing other than the simple assertion in the application itself to explain the failure to apply for leave within time.

20. Nor, in our view, is there anything put to the Court to suggest that there is any real merit in the application to set aside the conviction or to show that the applicant has reasonable prospects of success in the application. Although it is now contended that there was a miscarriage because the prosecutor, in his opening address, misstated the principles of self-defence, that does not demonstrate a miscarriage, in our view, because the prosecutor also told the jury that directions of law were matters they must take from the judge, and it is conceded that his Honour adequately instructed the jury on the relevant principles relating to self-defence. Indeed, no exception to that part of the charge has been taken.

23. The Crown opposes the application on the basis that the applicant has not made out any proper basis for extending the time for appeal. In the absence of any proper material to support the application, the applicant, in our view, has shown no reasonable prospect of succeeding in the proposed appeal against conviction, and has not really explained his failure to apply for leave to appeal within time.

26. Accordingly the application must be dismissed.

[1] [1979] VicRp 1; [1979] V.R. 1 at 5.

[2] [1999] VSCA 63 at [14].