Colquhoun v The King - [2025] NSWCCA 12

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Colquhoun v R [2025] NSWCCA 12
Hearing dates: 6 December 2024
Date of orders: 19 February 2025
Decision date: 19 February 2025
Before: Basten AJA at [1];
Dhanji J at [147];
Sweeney J at [148]
Decision:
(1)   Grant the applicant leave to appeal from his convictions on counts 1, 2, 4, 5, 6, 7, 9 and 10.
(2)   Dismiss the applicant’s notice of motion seeking to challenge the refusal by the Chief Judge at Common Law to order persons to produce documents or attend for the purposes of the appeal.
(3)   Dismiss the applicant’s motion seeking leave to rely upon further evidence on the appeal.
(4)   Dismiss the appeal.

Catchwords:
CRIME – appeal against convictions – judge only trial – dishonestly destroy property by fire – dishonestly obtaining financial advantage – dealing with proceeds of crime – applicant was convicted of destroying his own house by fire – applicant’s expert evidence not accepted – adverse credibility findings against applicant
CRIME – appeal against convictions – incompetence of counsel – whether counsel unprepared and failed to obtain critical evidence – refusal to waive privilege
CRIME – appeal against convictions – further expert evidence – motion to tender new evidence – whether applicant’s new evidence available at time of trial – application refused

Legislation Cited:
Criminal Appeal Act 1912 (NSW), ss 5, 6

Cases Cited:
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
DW v The Queen [1991] 1 SCR 742
Johnson v Western Australia [2008] WASCA 164; 186 A Crim R 531
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
R v Birks (1990) 19 NSWLR 677

Category: Principal judgment
Parties: Darren Mark Colquhoun (Applicant) (unrepresented)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
S Lind (Respondent)
Solicitors:
Solicitor for the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/153768
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

15 December 2023

Before:

Judge O’Brien

File Number(s):

2021/153768

HEADNOTE

[This headnote is not to be read as part of the judgment]

Between December 2019 and January 2020, the Shoalhaven area on the south coast was severely affected by a major bushfire. The applicant, Darren Mark Colquhoun, owned a property at Barringella. In the early hours of 5 January 2020, the house was destroyed by fire. Immediately following the destruction of his house, the applicant made a claim on his insurer, which was paid. In the following weeks, the applicant successfully made a number of claims for financial assistance from government agencies and charities which were assisting bushfire victims.

After a police investigation, the applicant was charged with dishonestly destroying his own property by fire, eight counts of dishonestly obtaining a financial advantage, and one count of dealing with the proceeds of crime. In June 2023 a trial proceeded before O’Brien DCJ, sitting without a jury. On 4…

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.

Continue reading Colquhoun v The King

Details

AGLC: Colquhoun v The King [2025] NSWCCA 12
Case: [2025] NSWCCA 12
Decision Date: 19 February 2025

CaseChat Overview and Summary

The case of Colquhoun v The King involved the appellant who appealed against his convictions following a judge-only trial. He was found guilty of destroying his own house by fire, obtaining a financial advantage dishonestly, and dealing with the proceeds of a crime. The trial judge did not accept the appellant's expert evidence and made adverse credibility findings against him. The appellant argued that his counsel was incompetent and failed to obtain critical evidence due to being unprepared, and that he had refused to waive privilege. The appellant also sought to tender new expert evidence, arguing that it was not available at the time of the trial.

The primary legal issues for the court to decide were whether the appellant's counsel was incompetent and whether the appellant's expert evidence should have been accepted. The court also needed to determine if the new evidence the appellant sought to tender was available at the time of the trial and if it should be considered. These issues involved an assessment of the appellant's claims regarding his legal representation, the admissibility and weight of expert evidence, and the rules governing the introduction of new evidence in an appeal.

The court found that the appellant's claims of incompetence against his counsel were not substantiated, as there was no evidence to suggest that his counsel was unprepared or had failed to obtain critical evidence. The court also upheld the trial judge's decision not to accept the appellant's expert evidence, noting the adverse credibility findings against him. The court further held that the new evidence the appellant sought to tender was not available at the time of the trial and did not meet the criteria for being considered in the appeal. Consequently, the court dismissed the appeal, affirming the appellant's convictions.

Orders