Bryce Desmond Harrington v The Queen - [2017] VSCA 307

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0069

BRYCE DESMOND HARRINGTON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, REDLICH JA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 May 2017, 2 June 2017
DATE OF ORDER:	19 June 2017
DATE OF JUDGMENT:	26 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 307
JUDGMENT APPEALED FROM:	[2017] VCC 288 (Judge Tinney)

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CRIMINAL LAW – Appeal – Conviction – Fresh evidence – Evidence of pre-trial conversation with eyewitness – Whether doubt cast on evidence given by eyewitness – Whether significant possibility of acquittal – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Reckless cause injury – Convicted after trial – Sentenced to nine months’ imprisonment with 15 month community correction order – Whether manifestly excessive – Whether judge erred in taking into account serious injury caused – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Gurvich QC	Armour Legal
For the Respondent	Mr J Gullaci	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA:

Summary

On 8 March 2017, the applicant was found guilty by a jury of one charge of recklessly causing injury. There were two charges on the indictment, namely, intentionally cause serious injury (charge 1) and recklessly cause serious injury (charge 2). The jury acquitted the applicant of the charged offences and the lesser alternative to charge 1 (intentionally cause injury) and convicted him of the lesser alternative to charge 2.

The maximum penalty for recklessly cause injury is five years’ imprisonment.[1] On 21 March 2017, the judge sentenced the applicant to nine months’ imprisonment, together with a community correction order (‘CCO’) for 15 months, with conditions attached.
[1]Crimes Act 1958 s 18.

On 20 April 2017, the applicant filed notices of application for leave to appeal against both conviction and sentence. On 4 May 2017, he also filed an application for bail pending appeal, in view of the short duration of the period of imprisonment. On 12 May 2017, the Court heard initial arguments on the application for bail and then adjourned the hearing on the basis that there would be an expedited hearing of the substantive applications.

The substantive applications came on for hearing on 25 May 2017. As will appear, the sole ground relied on in support of the conviction application concerned what was said to be fresh evidence, as set out in an affidavit from a person who had not given evidence at the trial. In the course of the hearing, the Court indicated that it would be necessary to hear viva voce evidence from the proposed additional witness.

On 2 June 2017, the witness gave evidence and was cross-examined. Supplementary submissions were then filed, directed at the effect of his evidence, and on 19 June 2017 the Court announced that — by at least a majority — each of the applications would be refused. We indicated that we would publish our reasons subsequently. These are those…

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: [2017] VSCA 307
Decision Date: 26 October 2017

CaseChat Overview and Summary

In the matter of Bryce Desmond Harrington versus The Queen, the appellant sought to appeal his conviction and sentence in the High Court of Australia. Harrington was found guilty of recklessly causing injury to another and was sentenced to nine months’ imprisonment, along with a 15-month community correction order. The appellant challenged both his conviction and sentence, arguing that the evidence of a pre-trial conversation with an eyewitness cast doubt on the reliability of the witness’s evidence and that the sentence was manifestly excessive.

The legal issues before the court were whether the fresh evidence of the pre-trial conversation with the eyewitness created a significant possibility of an acquittal and whether the sentence was manifestly excessive. The court was required to determine if the new evidence was sufficient to cast doubt on the witness's testimony and if the sentence imposed was disproportionate to the crime committed. Additionally, the court had to assess whether the trial judge erred in taking into account the serious injury caused by the appellant when imposing the sentence.

The High Court held that the fresh evidence did not cast sufficient doubt on the eyewitness's evidence to warrant a different outcome at trial. The court found that the evidence was cumulative and did not undermine the reliability of the witness's testimony. Regarding the sentence, the court concluded that the judge did not err in considering the seriousness of the injury when imposing the sentence. The sentence was deemed appropriate and not manifestly excessive, taking into account all relevant circumstances.

The High Court refused leave to appeal both the conviction and the sentence. Consequently, the appellant's conviction and sentence remain as originally imposed by the trial court.

Orders