R v Harms - [2003] QCA 14

SUPREME COURT OF QUEENSLAND

CITATION:

R v Harms [2003] QCA 14

PARTIES:

R
v
HARMS, Colin Gordon
(applicant)

FILE NO/S:

CA No 299 of 2002
SC No 690 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Application for Re-opening (criminal)

ORIGINATING COURT:

Supreme Court

DELIVERED EX TEMPORE ON:

31 January 2003

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2003

JUDGES:

Davies and McPherson JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Dismiss the application

CATCHWORDS:

APPEAL – ADMISSION OF FRESH EVIDENCE – IN GENERAL – claim by application that evidence would become available in different trial – whether qualifies as fresh evidence for this hearing

COUNSEL:

The applicant appeared on his own behalf
C W Heaton for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: On 18th December 1999, the applicant now before us was convicted of attempted murder after a trial in the Supreme Court at Brisbane. He appealed against his conviction to this Court which dismissed his appeal on 10th October 2000 following a hearing that had taken place on 3rd October. The reference there is Queen against Harms [2000] QCA 49; the reasons I reported. The order of dismissal was formally entered on the 12th of October 2000.

The applicant again appealed, or purported to appeal, against his convictions on 5th February 2002. His appeal, or the application to extend the time for appealing, was heard and dismissed on 19th March 2002. From that decision, he seems to have sought special leave to appeal to the High Court. The fate of that application is not entirely clear to me, although the applicant says that he has been told by an officer of the registry of the High Court that the determination of a fresh evidence question must first be considered in this Court before the High Court will examine it in their jurisdiction.

On 24th of September 2002, the applicant filed a further notice of appeal against his conviction, or an application to extend the time for so appealing.

Except perhaps to the extent that fresh evidence issues are now sought to be raised in this Court, the appeal against conviction or application to extend time for appealing is, in my view, incompetent and should be dismissed. I shall briefly now say why.

On turning to the applicant's amended written summary or outline of argument, it is apparent that as regards his conviction his complaints are almost without exception directed to matters that occurred at his trial in December 1999. In what are described as parts 1 and 2 of that outline, the outline complains of matters going only to the sentence imposed by him, and that question may be deferred until I have referred to part 3.

The matter of conviction is taken up in part 3 of the outline. It refers to a gun used in the attempted murder…

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 R v Harms

Details

AGLC: R v Harms [2003] QCA 14
Case: [2003] QCA 14
Decision Date: 31 January 2003

CaseChat Overview and Summary

The case of R v Harms involved the respondent appealing a conviction. The nature of the dispute centred around the admission of fresh evidence. The case was heard in the Supreme Court of Queensland. The primary issue the court had to decide was whether the respondent's claim that evidence would become available in a different trial qualified as fresh evidence for this hearing.

The court considered whether the evidence was truly fresh and if it was relevant to the matters in issue. The respondent argued that the evidence, which was yet to be discovered, would become available during the trial of another accused, and if so, it should be admitted in this case. The court was required to balance the interests of justice against the need to avoid unnecessary delays. The court held that the mere possibility of the evidence being available in another trial did not meet the threshold for fresh evidence to be admitted in the current proceedings. The court emphasised that fresh evidence must be both newly discovered and material to the issues at hand.

Consequently, the Supreme Court of Queensland dismissed the application. The court concluded that the respondent's claim did not satisfy the criteria for fresh evidence, as it was speculative and not sufficiently material to warrant a new hearing. The conviction remained upheld, and the appeal was dismissed.

Orders

Orders of the court

Dismiss the application

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Harms [2003] QCA 14
PARTIES:	R v HARMS, Colin Gordon (applicant)
FILE NO/S:	CA No 299 of 2002 SC No 690 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Application for Re-opening (criminal)
ORIGINATING COURT:	Supreme Court
DELIVERED EX TEMPORE ON:	31 January 2003
DELIVERED AT:	Brisbane
HEARING DATE:	31 January 2003
JUDGES:	Davies and McPherson JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Dismiss the application
CATCHWORDS:	APPEAL – ADMISSION OF FRESH EVIDENCE – IN GENERAL – claim by application that evidence would become available in different trial – whether qualifies as fresh evidence for this hearing
COUNSEL:	The applicant appeared on his own behalf C W Heaton for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent