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R v Schmidt

 

[2019] QCA 164

[2019] QCA 164

COURT OF APPEAL

 

MORRISON JA

PHILIPPIDES JA

FLANAGAN J

 

CA No 34 of 2019

SC No 128 of 2015

 

THE QUEEN

v

SCHMIDT, Andreas

 

BRISBANE

 

FRIDAY, 23 AUGUST 2019

 

JUDGMENT

PHILIPPIDES JA:  On 9 August 2016 the applicant was convicted by a jury of one count of conspiracy to traffic in a commercial quantity of a controlled drug, namely cocaine.  He was sentenced on 14 December 2016 to 12 years’ imprisonment with a non-parole period of seven and a half years.  The offending related to a conspiracy between the applicant and one Heilbronn and another, Le, to traffic, as I mentioned, in a commercial quantity of cocaine.  The investigation involved the use of surveillance and undercover cop operatives.  During the original appeal hearing, and at first instance, the applicant’s contention was that he was aware of the police investigation and was, in fact, conducting counter-surveillance on police and that that was relevant to his state of mind and his guilt and that he was therefore not guilty of the offence.

The applicant filed an appeal against conviction and sentence.  The appeal was dismissed on 29 March 2018 and leave to appeal against sentence was also refused.  Subsequently an application for leave – for special leave to appeal to the High Court was dismissed on 12 September 2018.  The applicant now seeks an extension of time in which to appeal again against his conviction and sentence by notices filed on 26 February 2019, and seeks to raise the following grounds:

  1. (a)
    Fresh evidence which it is contended has surfaced and is proposed to be given by the witness Le and is relevant as the basis for overturning the conviction.
  2. (b)
    Evidence to be called from the witness Higgins.
  3. (c)
    That the setting aside of parts of a subpoena by the trial judge on 16 November 2015 caused a miscarriage of justice.

In that regard, the applicant has also brought an application to adduce evidence concerning Mr Le and that application proceeds on the basis that that evidence was not available at trial, that the applicant was only able to locate Mr Le recently and obtain an affidavit from him and that the application is brought at the earliest opportunity.

There is well established authority concerning the process of an appeal against conviction.  Once an appeal has been decided on its merits, the right to appeal against conviction created pursuant to s 668D of the Criminal Code is exhausted and there is no jurisdiction for a Court of Appeal to hear a further appeal.  That principle is a well-established one and has been enunciated in decisions of the High Court, including Grierson v The King and Nudd.  There are strong policy reasons as to the finality of judgment which underline the principle.

There are, however, some extremely limited exceptions to that rule concerning, amongst other things, the denial of procedural fairness.  Those exceptions do not apply here.  This is a case where the applicant received a full hearing on the merits.  The three grounds of appeal sought to be raised were, in fact, previously raised before the Court of Appeal and dealt with.  In those circumstances there is no basis in law for the further ventilation of the grounds sought to be raised.  The application for leave to adduce evidence should be refused and the applications for an extension of time should likewise be refused.

FLANAGAN J:  I agree.

MORRISON JA:  I also agree.  The orders of the Court are as follows:

  1. Application for leave to adduce evidence is refused.
  2. Application for extension of time to appeal is refused.
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Editorial Notes

  • Published Case Name:

    R v Schmidt

  • Shortened Case Name:

    R v Schmidt

  • MNC:

    [2019] QCA 164

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Philippides JA, Flanagan J

  • Date:

    23 Aug 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment SC128/15 (No Citation) 09 Aug 2016 Date of Conviction (Douglas J).
Primary Judgment SC128/15 (No Citation) 14 Dec 2016 Date of Sentence (Douglas J).
Appeal Determined (QCA) [2018] QCA 59 29 Mar 2018 Appeal against conviction dismissed; application for leave to appeal against sentence refused: Fraser and McMurdo JJA and Jackson J.
Appeal Determined (QCA) [2019] QCA 164 23 Aug 2019 Application for leave to adduce evidence refused; application for extension of time to appeal refused (determined after [2018] QCA 59 and [2018] HCASL 263): Morrison and Philippides JJA and Flanagan J.
Special Leave Refused [2018] HCASL 263 12 Sep 2018 Special leave from [2018] QCA 59 refused: Nettle and Gordon JJ.

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)