Brian Edward Sherrard v The Queen - [2012] HCASL 158

BRIAN EDWARD SHERRARD
v
THE QUEEN
[2012] HCASL 158
B12/2012

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.
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.
A separate reason for adopting that course is that even if time were extended and special leave were granted, the appeal would lack merit.
Before considering the grounds on which the applicant wishes to rely, it is desirable to set out some factual background.
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,…

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.

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Details

Case: [2012] HCASL 158
Decision Date

CaseChat Overview and Summary

In this case, the applicant, Brian Edward Sherrard, sought special leave to appeal against his conviction of attempted murder. The case was heard by the High Court of Australia, and the judgment was delivered by Heydon J and Bell V. The applicant was convicted of attempted murder in the Supreme Court of Queensland, and the Court of Appeal dismissed his appeal against the conviction and an application for leave to appeal against sentence. The applicant filed an application for special leave to appeal to the High Court of Australia on 24 February 2012, which was outside the 28-day period allowed. The applicant, who was not legally represented, required a substantial extension of time within which to file the application. The applicant had made extensive efforts to obtain legal representation but was unsuccessful. The affidavit listed numerous contacts made between March 2005 and August 2011 with barristers, solicitors, and scientific experts to further the appeal. However, the affidavit did not explain the whole of the delay.

The legal issues before the court were whether the applicant could be granted an extension of time to file the application for special leave to appeal and whether the appeal had any merit. The court considered the reasons for the delay and whether the appeal would lack merit even if time were extended and special leave were granted. The court also considered the factual background of the case, which included the applicant's motive, opportunity, and identification by the victim as the shooter. The court also considered the evidence presented at the trial, including the identification of the applicant as the shooter, the circumstantial evidence, and the applicant's alibi.

The court found that the applicant had not demonstrated any prospect of success on the ground that the Court of Appeal did not consider the whole case. The court also found that the applicant had not demonstrated any prospect of success on the ground 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. The court also found that the applicant had not demonstrated how the video re-enactment 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 caused a misrepresentation of the contents to the court leading to a miscarriage of justice.

The court dismissed the application for special leave to appeal. The Registrar was directed to draw up, sign, and seal an order dismissing the application. The court found that the applicant had not demonstrated any prospect of success on any of the grounds of appeal, and the appeal lacked merit. The court also found that the applicant had not demonstrated how the events concerned with the re-enactment raised a reasonable doubt. The applicant did not reveal how the evidence contravened the Evidence Act 1977 (Qld) given that it was not objected to, and nor did the applicant demonstrate how grounds (b) and (c) of this ground of appeal were 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.

Orders