R v Katsidis; ex parte A-G (Qld)

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Katsidis; ex parte A-G (Qld) [2005] QCA 229

PARTIES:

R
v
KATSIDIS, Michael Alan
(petitioner/appellant)

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

FILE NO/S:

CA No 47 of 2005
DC No 401 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Reference under s 672A Criminal Code

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

24 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

8 June 2005

JUDGES:

McMurdo P, Jerrard JA and White J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARDON, COMMUTATION OF PENALTY, REFERENCE ON PETITION FOR PARDON AND INQUIRY AFTER CONVICTION – REFERENCE TO COURT – appellant convicted of doing grievous bodily harm – doctor giving evidence based on hospital notes stated that it was unlikely the complainant’s injuries were caused by a fall – appeal against conviction dismissed – new evidence of doctor who performed complainant’s surgery describing an abrasion on the complainant’s jaw consistent with a fall – whether evidence was fresh – whether evidence raised significant possibility that the jury would reasonably have acquitted the appellant on the grounds of accident or self-defence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL; MATERIALITY AND COGENCY – appellant sought to admit new evidence of the complainant’s involvement in another fight that evening – such evidence was available at trial – test for non-fresh evidence requires that the verdict of guilty could not stand if the evidence was admitted – whether this evidence considered with both the evidence at trial and fresh evidence raised such a doubt about guilt that the conviction could not be allowed to stand

Criminal Code 1899 (Qld), s 672A

Beamish v The Queen [2005] WASCA 62, CCA No 130 of 2002, 1 April 2005 applied
Gallagher v The Queen (1986) 160 CLR 392, cited
Lawless v The Queen (1979) 142 CLR 659, applied
Mickelberg v The Queen (1989) 167 CLR 259, cited
R v Condren; ex parte A-G (Qld) [1991] 1 Qd R 574, cited
R v Daley; ex parte A-G (Qld) [2005] QCA 162; CA No 336 of 2004, 12 May 2005, cited
R v Main [1999] QCA 148; (1999) 105 A Crim R 412, cited
R v Young (No 2) [1969] Qd R 566, cited
Ratten v The Queen (1974) 131 CLR 510, applied

COUNSEL:

A J Glynn SC for the appellant
M J Copley for the respondent

SOLICITORS:

Kym Flehr Legal Solutions for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. McMURDO P:  The relevant facts and issues are set out in the reasons for judgment of Jerrard JA.  I agree with Jerrard JA that the appeal should be dismissed.

  1. Australian courts have long recognised a distinction between admitting fresh evidence and new…

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Details
Case
[2005] QCA 229
Decision Date

CaseChat Overview and Summary

The case of R v Katsidis; ex parte A-G (Qld) involved the appellant who was convicted of doing grievous bodily harm to the complainant. The case was brought before the court due to an appeal against the conviction and a petition for a pardon and inquiry after conviction. The appeal was based on the contention that new evidence had come to light which could potentially overturn the conviction. The new evidence included a doctor's statement that the injuries sustained by the complainant were inconsistent with a fall, as previously testified at trial. Additionally, the appellant sought to introduce further evidence that the complainant had been involved in another altercation on the same evening, which was argued to be relevant to the circumstances of the incident.

The central legal issues revolved around whether the new evidence presented was indeed fresh, as defined by the legal standards, and if it was material and cogent enough to raise a significant possibility that the jury would have acquitted the appellant on the grounds of accident or self-defence. Furthermore, the court had to determine whether the additional evidence of the complainant's involvement in another fight, which was available at trial, met the criteria for being considered fresh evidence, and if its admission, alongside the fresh evidence, would sufficiently undermine the conviction. The court was required to apply the established legal tests to assess the admissibility and impact of the new evidence on the original verdict.

Upon reviewing the evidence and applying the relevant legal tests, the court found that the new evidence did not qualify as fresh under the applicable legal standards. The court held that the evidence was either not truly new or did not meet the threshold of materiality and cogency necessary to cast sufficient doubt on the conviction. The court also concluded that the evidence of the complainant's involvement in another fight, while available at trial, did not satisfy the stringent criteria for fresh evidence when considered in conjunction with the other evidence. Consequently, the appeal against the conviction was dismissed, and the orders of the lower court were upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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