R v Mrsic

[1998] QCA 470

COURT OF APPEAL

[1998] QCA 470

McMURDO P PINCUS JA CHESTERMAN J

CA No 354 of 1998
THE QUEEN
v.

IVAN MRSIC Applicant

BRISBANE
..DATE 02/12/98
021298 T17/AT4 M/T COA311/98
THE PRESIDENT: The applicant applies for an extension of time
within which to appeal. He was convicted of manslaughter
after a jury trial in Townsville on 16 June 1997.
One Braiding gave evidence for the Crown against the applicant
at his trial. The applicant's original appeal against
conviction was dismissed on 1 September 1997. The applicant's
grounds for extension are:

1.There is fresh evidence that the witness Braiding, in the

course of his evidence knowingly gave a false
account of the order and circumstances of the shots
fired at the relevant time at the trial of this
matter in the Supreme Court at Townsville between
2 June '97 and 18 June 1997. This evidence is
directly relevant as to whether I was acting in self

defence.

2.The witness Braiding is now an inmate in the Townsville

Correctional Centre and has advised me that he is prepared to provide a statement to the Court setting out the correct account of the order and the circumstances of the shots fired at the relevant time.

3.At the time the initial appeal was lodged by myself,

Braiding was in hiding and could not be located by police. Braiding was subsequently found by police and is now serving time in custody at the Townsville Correctional Centre.

There is not ordinarily any power to allow for another appeal
against conviction to this Court: see R v. Smith [1968] QWN
50 and R v. Smith No 2 [1969] QWN 10.

In any case, the applicant has not provided to the Court any new evidence in affidavit form or otherwise. There is only his hearsay assertion that such evidence may become available.

The applicant, who bears the onus, has failed to establish

any reason to justify his success in this application.
021298 T17/AT4 M/T COA311/98
In these circumstances the application must be refused.

PINCUS JA: Apart from any other difficulty this applicant has the problem that, as he concedes, the fresh evidence of which he speaks is merely a possibility. He doesn't say that he's likely to be able to obtain it but, simply, that he might. In these circumstances, the application, in my view must, as the President says, be dismissed.

CHESTERMAN J: I agree that the application should be refused for the reasons given by the President and Mr Justice Pincus.

THE PRESIDENT: The order is the application is refused.

-----