R v Harms

[1998] QCA 472

COURT OF APPEAL

[1998] QCA 472

McMURDO P
McPHERSON JA

MUIR J

CA No 307 of 1998
THE QUEEN
v.

COLIN GORDON HARMS (Applicant)

BRISBANE
..DATE 27/10/98
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MUIR J: The applicant was convicted in the District Court at
Ipswich on 5 August 1998 on one count of unlawful possession
of a motor vehicle with a circumstance of aggravation, one
count of stealing a stopwatch, toolbox containing tools and
four chrome wheels and on another count of unlawful possession
of another motor vehicle with circumstances of aggravation.

The applicant did not appeal within time and applies for an extension of time within which to appeal against both conviction and sentence. He supports his application with a document to which he spoke which contains 10 grounds. It is convenient to deal with them now.

Ground 1 is a complaint that he did not have a copy of the transcript of a taped record of interview which was tendered in evidence. There is no suggestion that his counsel did not have a copy of a transcript or that the applicant requested one of his counsel. Nor does there appear to have been any particular issue about the meaning of any part of the tape as opposed to the fact that some parts of the tape were illegible. The evidence before the jury was of course the tape and not the transcript of it.

The thrust of grounds 2, 6 and 9 is that the applicant was
denied an opportunity of calling material witnesses whose
evidence would have supported his innocence, or at least
tended to establish that fact. At the trial he elected not to
give and not to call any persons to give evidence on his
behalf. At no stage did he seek an adjournment by himself or
through his counsel with a view to calling any evidence.
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There is no reason to suppose that the case was not conducted
in this fashion on the advice of the applicant's counsel. Nor
is there any reason to think that such advice was not
reasonable and based on information supplied by the applicant
to his counsel.

Grounds 3 and 9 concern the stopwatch, toolbox and chrome wheels referred to in count 2. The applicant contends that he was wrongly convicted in relation to these items on the basis that they were not with the vehicles when they came into his possession. These arguments, if not advanced before the jury, could have been advanced. The matter of the toolbox was in fact raised by the applicant's counsel in the course of cross- examination of at least one witness.

There is before us no explanation as to why these arguments, if that is the proper description of them, were not advanced at trial if indeed that is the fact.

Ground 4 refers to the difficulty faced by persons charged with being in possession of stolen goods who justify possession of the goods on the grounds that possession has been obtained in an ostensibly legitimate manner from a person who cannot be identified in such a way as to enable the person to be traced.

As I mentioned earlier, the applicant elected not to give
evidence or to call any persons to give evidence on his
behalf. As with all other grounds, this one is unsupported by
any sworn evidence or anything else which might tend to
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suggest that the ground has substance.

Ground 5 appears to be a complaint about the summing-up of the learned trial Judge. There is nothing in the material before us which identifies any deficiency in the summing-up in such a way as to enable the adequacy or otherwise of the summing-up to be gauged. However part of the transcript before us contains the preliminary observations to the jury of the learned trial Judge. In those observations he is at pains to acquaint the jury with the principle that the Crown has the responsibility of establishing guilt beyond "a reasonable doubt." That expression is used by the learned trial Judge twice.

Ground 7 is another factual argument along the lines advanced in grounds 3 and 9 and my earlier observations apply generally to it.

Ground 8 seems to have no factual foundation. It is a
complaint that the learned trial Judge made a statement "saying he could see no proof of any working as a parts sales." What the Judge in fact said was:

"It has not been suggested to me in submissions that you were operating as a motor mechanic or a scrap metal dealer or a person who could have any legitimate reason for having stolen vehicles on your premises."

In summary, none of the grounds appears to have any realistic prospect of success.

I turn now to the matter of the sentence. The applicant
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complains that the sentence is too severe having regard to
matters such as his having lost his house and his business in
consequence of being charged and convicted.

The applicant as was pointed out to him by Mr Justice McPherson in the course of the hearing has a substantial previous criminal history. Admittedly much of that history is of considerable antiquity, but there is a conviction in 1996 for unlawfully taking shop goods.

In any event even without the applicant's criminal record, the sentence imposed by the learned trial Judge of imprisonment of 18 months in relation to counts 1 and 3 and one month in relation to count 2, such sentences to be served concurrently can hardly be said to be outside the permissible range for offences of the nature of those under consideration. I would dismiss the application.

THE PRESIDENT: I too would refuse the application for the reasons given by Mr Justice Muir.

McPHERSON JA: I agree.

THE PRESIDENT: The order is the application for extension of time within which to appeal and to apply for leave to appeal against sentence is refused.

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