Brian Edward Sherrard v The Queen

[2012] HCASL 158

BRIAN EDWARD SHERRARD

v

THE QUEEN

[2012] HCASL 158
B12/2012

1. After a trial by jury in the Supreme Court of Queensland, the applicant was convicted of attempted murder on 9 March 2004.  The crime allegedly took place on 10 October 2001.  The Court of Appeal of the Supreme Court of Queensland (McMurdo P, Jerrard JA and Mackenzie J) dismissed an appeal against conviction and an application for leave to appeal against sentence on 27 July 2004.  This application for special leave to appeal to this Court was not filed until 24 February 2012.

2. The applicant, who is not legally represented, thus requires a substantial extension of the time within which to file the application.  It should have been filed within 28 days of 27 July 2004.  An affidavit which seeks to explain the delay contends that despite his extensive efforts the applicant had been unable to obtain legal representation.  The affidavit lists a large number of barristers, solicitors and scientific experts as "contacts" the applicant had made to try to further his appeal.  These "contacts" were made between March 2005 and August 2011.  The affidavit does not explain anything like the whole of the delay.  On that ground we would refuse to extend time and would dismiss the special leave application.

3. A separate reason for adopting that course is that even if time were extended and special leave were granted, the appeal would lack merit.

4. Before considering the grounds on which the applicant wishes to rely, it is desirable to set out some factual background. 

5. The main issue was whether the prosecution could prove that it was the applicant who shot the victim, Mr Norman Brunt.  The applicant had a substantial motive – animosity against Mr Brunt arising from his belief that Mr Brunt had earlier arranged an attack on him.  The applicant had the opportunity to shoot Mr Brunt – his residence was a 15 minute walk from Mr Brunt's property and the alleged crime took place about 750 metres inside it.  Mr Brunt identified the applicant as the shooter.  He had known the applicant for nearly a decade.  The shooting took place on a clear day in the early afternoon.  Mr Brunt was often quite close to the shooter during the period in which he was shot twice.  The identification was confirmed by circumstantial evidence.  The bullets came from a .22 rifle.  The applicant had owned a .22 rifle.  His shed had a facility for storing one.  A bullet and casings found at the scene of the shooting matched some of those found in the applicant's residence.  The applicant contended at the trial that Senior Constable Wilkie or Detective Sergeant Ferling had planted the casings at the scene of the alleged crime.  The difficulty in the allegation was that the police were not in a position to know at the relevant time which of the various casings that were found at the applicant's house would match the microscopic marks on those found at the scene.  In any event, the applicant on his appeal to the Court of Appeal abandoned that contention and accused a different police officer, Paul Christensen, of planting the casings.  The applicant claimed an alibi.  His wife was called by the prosecution.  She gave evidence which was in general terms the same as his in relation to his movements, but she was imprecise as to the timing of events.  She said that the applicant was not in her company from about 1.30pm until about 2.30pm, but she could not fix those times by reference to any reliable method of timing.  Since the shooting took place some time before 2.50pm and it was a walk of 15 minutes or more from the applicant's residence to the scene of the shooting, the Crown case was not necessarily inconsistent with her evidence. 

6. The draft Notice of Appeal can be analysed as stating three grounds of appeal.

7. The first is:  "The Court of Appeal did not consider the 'whole case' which embraces the whole of the evidence properly submitted (Ratten 1974 HCA 35, Mallard 2005 HCA 68)".  These are references to Ratten v The Queen (1974) 131 CLR 510 and Mallard v The Queen (2005) 224 CLR 125.

8. The applicant's written case does not identify the respects in which the applicant contends that the Court of Appeal failed to consider the whole case.  Most of the written case deals with a video re-enactment which is the subject of another ground of appeal.  The reasons for judgment of the Court of Appeal are contained in a detailed judgment of Jerrard JA (with whom McMurdo P agreed) and a shorter judgment of Mackenzie J.  They appear to reflect both an exhaustive survey and an independent assessment of the evidence.  An example is Jerrard JA's analysis of the following conflict in the police evidence.

   "Mr Sherrard's counsel … pointed to the fact that Constable Keith Van Den Boog, who had seen Detective Sergeant Ferling locate the empty .22 cartridge cases under the tree, had described police officer Wilkie photographing what Constable Van Den Boog seeing thought were .22 shells in a Milo container in the front yard of Mr Sherrard's residence, while the police were conducting their search of his premises earlier on 11 October.  Senior Constable Wilkie denied ever having seen any Milo or other tin containing cartridge cases, or having photographed them; and all of the negatives he had taken that day were produced and exhibited, including some aerial photographs taken that day and relating to another investigation entirely. 

   There was no evidence from any other police led in support of the existence of a Milo tin containing discharged cartridge cases in Mr Sherrard's property, or of any discharged cartridge cases other than the exactly 100 in the two boxes.  The photographs police officer Wilkie took did include photographs taken at Mr Sherrard's residence, next to a vehicle in the yard and not in the shed, of a dirty plastic container which had in it some undischarged .410 shotgun cartridges, contained in a small belt holder, and in which the brass cartridge caps were visible.  Entirely appropriate use was made at the trial of the contradictions in the police evidence, to challenge its overall veracity and reliability.  At the trial police officer Wilkie emphasised in his evidence, and the Crown emphasised in its submission, that the police who searched Mr Sherrard's property in the morning did not have a scanning electron microscope with them, or any other instrument or means, that would have enabled corrupt officers to select at Mr Sherrard's premises two discharged cartridges which had not only each been fired from the same rifle, but which had also been fired from the same rifle as 17 of the other 100 discharged cartridge shells produced by the prosecution as a result of the search.  If there had been any conspiracy to fabricate evidence by the police officers accused of it at the trial, the conspirators had extraordinarily good fortune in selecting the two discharged cartridge cases which they did, and were also extraordinarily lucky both that no honest police officers other than  Van Dan [sic] Boog observed the Milo tin with .22 shells in it, and that no photographs of it were produced by anyone.  There was no evidence at the trial that any such tin was recorded as being taken into police possession; Mr Sherrard did not produce it as his trial."

9. The Court of Appeal also permitted the applicant to introduce evidence before it which had not been tendered at trial, and demonstrated why it did not assist the applicant. 

10. In the circumstances, it cannot be said that the applicant has demonstrated any prospect of success on this ground.

11. The reference to Mallard v The Queen in the draft Notice of Appeal may be treated as pointing to a second ground of appeal.  The reference appears to found assertions by the applicant that there had been a non-disclosure of evidence, that the police had targeted him from the start, and that they had failed to look at the position of Mr Brunt's wife and her male friend, whose motives for killing Mr Brunt far outweighed the applicant's.  There is no reason to accept these assertions. 

12. The third ground of appeal was put thus:

    "The court viewed a video re-enactment but failed to see that it was in contravention of the process required by law and that the judge and defence in allowing it to be shown without the complainant [being] available to be cross examined causing a misrepresentation of the contents to the court leading to a miscarriage of justice.

    In the interest of justice this matter should be resolved as the evidence was;

    a.Shown in contravention to the Evidence Act 1955 [sic - scil 1977].

    b.        Completely contradicts the testimony of the main witness.

    c.A proper examination of the witness would have shown that evidence found at a tree was not in fact found at the correct location hence this evidence had no baring in the matter."

13. The applicant accepted in this Court that the defence wanted the video re-enactment to be shown, but contended that by his lawyers' incompetence, it was shown without Mr Brunt "being available for examination."   The applicant also admits in this Court that he did not raise this matter before the Court of Appeal. 

14. The video recording in question has no sound.  It was made by Senior Constable Wilkie.  It shows Mr Brunt demonstrating to a police officer at the scene where he and the shooter were located at particular times.  The respondent submits that one explanation for the applicant's failure to object to the tender of this evidence at the trial is that the applicant relied to some extent on what was on the video to develop his case that the police had conspired to plant the casings at a particular tree.  The respondent contends that the applicant used the video to make calculations and prepare a diagram which he used to cross-examine the police and a forensic officer, and also in his own testimony to demonstrate that the police had put the casings at the wrong tree.  The respondent submitted that the applicant said at his trial that it was the re-enactment which gave him "most of the information".  If the video recording had not been in evidence, there would have been a risk that the jury would infer that the applicant had firsthand knowledge of the events which allowed him to prepare the diagram – that is, that he was the shooter.  There is force in these submissions.  The applicant faces a difficulty in advancing arguments about the video re-enactment which were not raised by way of objection at the trial and were not proffered to the Court of Appeal.  It is difficult to run his arguments in this Court unless they are capable of raising reasonable doubt.  The appellant has not demonstrated how the events concerned with the re-enactment raise a reasonable doubt.  In particular, the applicant did not reveal how the evidence contravened the Evidence Act 1977 (Qld) given that it was not objected to. Nor did the applicant demonstrate how grounds (b) and (c) of this ground of appeal are made out. Since Mr Brunt gave evidence, he could have been questioned about the re-enactment before it was shown or after it was shown.

15. The application is dismissed.

16. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

J.D. Heydon
13 November 2012 V.M. Bell