Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  •  Notable Unreported Decision
  • Appeal Determined - Special Leave Refused (HCA)

R v Harms[2002] QCA 99

COURT OF APPEAL

DAVIES JA

BYRNE J

HOLMES J

CA No 36 of 2002

THE QUEEN

v.

COLIN GORDON HARMSApplicant

BRISBANE

DATE 19/03/2002

JUDGMENT

DAVIES JA:  The applicant was convicted of attempted murder after a trial on 18 December 1999.  He was sentenced on the same day to imprisonment for nine and a half years.  On 10 October 2000 his appeal against that conviction and his application for leave to appeal against that sentence were dismissed.  In fact, the application for leave to appeal against sentence was not pursued in argument before this Court and was dismissed for that reason.

 

The applicant now seeks an extension of time within which to appeal, again, against both his conviction and his sentence.  His application was filed on 5 February 2002.  That was more than two years after his conviction and sentence and more than a year after his appeal to this Court was dismissed.

 

He says in his proposed notice of appeal:

 

"New evidence has come into my hands through the form of a weapons charge being dismissed.  A hearing test done on myself at PA Hospital.  Evidence from crown witness at another trial concerning matters in this appeal that could not be presented at original appeal.  These new items of evidence only came about in the last 12 months."

 

It is unclear from that statement how that evidence, described as new evidence, could have affected his original conviction. He has, however, attempted to expand on those matters in oral presentation in this Court and it seems clear, in my opinion, that they could affect his conviction only.  Once the jury had decided the basis upon which the applicant was guilty, the Judge was obliged to sentence him on that basis.

 

What is clear is that the applicant's appeal against conviction was dismissed upon the merits by this Court on 10 October 2000 and that the formal order of this Court to that effect was made on 12 October 2000.  Subject to the application of section 672A of the Criminal Code, which is not relevant to this application, this Court has no power now to hear a further appeal against conviction:  Alexanderson & Ors v. The Queen [2001] QCA 400.

 

The application for an extension of time within which to appeal against conviction must therefore, in my opinion, be refused.

 

As to the application for an extension of time in respect of sentence, it is by no means clear that his application for leave to appeal against sentence was dismissed by this Court on the merits on 10 October 2000.  Rather, it seems to have been dismissed, as I have already said, because it was no longer pursued.  In any event, it was a refusal of an application for leave, not a dismissal of an appeal, and the principles to which I have referred in Alexanderson & Ors may not apply to such an application.

 

However, nothing which the applicant has said to us today gives me any cause to think that there might be merit in the application for leave to appeal against sentence. 

 

On the facts on which the learned sentencing Judge sentenced and which are set out in the judgments of this Court in the applicant's first appeal, the sentence which was imposed was, in my opinion, within the appropriate range.  As Ms Bain has pointed out today, this was a callous and premeditated shooting in an execution style intended, it appears, by the applicant in order to silence a person whom he thought was informing on his illegal drug operations.  The intention was plainly, as the jury has found, to kill the victim.

 

It is perhaps unnecessary to even mention the applicant's explanation for delay.  He says it was because of two other matters, a drug-related charge which he was waiting to be determined in order to obtain evidence which was given in it and a weapons charge which he was also awaiting the outcome for some reason connected with the appeal.  To the extent that they would be relevant to an appeal it must have been the appeal against conviction, not an application for leave to appeal against sentence.

 

Accordingly, I would also refuse the application to appeal against sentence.  I would add that no application was made to this Court to reopen the sentencing proceedings pursuant to section 188 of the Penalties and Sentences Act 1992 (Qld), nor was there any basis established for any such reopening.

 

I would therefore order that the application for an extension of time within which to appeal against conviction and to seek leave to appeal against sentence be refused.

 

BYRNE J:  I agree.

 

HOLMES J:  I agree.

 

DAVIES JA:  The orders are as I have indicated.

Close

Editorial Notes

  • Published Case Name:

    R v Harms

  • Shortened Case Name:

    R v Harms

  • MNC:

    [2002] QCA 99

  • Court:

    QCA

  • Judge(s):

    Davies JA Byrne J Holmes J

  • Date:

    19 Mar 2002

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary JudgmentSC No 690 of 1999 (no citation)18 Dec 1999Defendant found guilty by jury of one count of attempted murder; sentenced to nine years and six months' imprisonment
Appeal Determined (QCA)[2000] QCA 41910 Oct 2000Defendant appealed against conviction and applied for leave to appeal against sentence; whether sufficient evidence for reasonable jury to convict; appeal dismissed and application refused: McPherson and Davies JJA and Mackenzie J
Appeal Determined (QCA)[2002] QCA 9919 Mar 2002Defendant applied for extension of time within which to appeal against conviction and apply for leave to appeal against sentence; where appeal already decided on the merits; applications refused: Davies JA, Byrne and Holmes JJ
Appeal Determined (QCA)[2003] QCA 1431 Jan 2003Defendant applied for further extension of time to appeal against conviction; where matters application dismissed: Davies and McPherson JJA and Mullins J
Special Leave Refused (HCA)[2004] HCATrans 52703 Dec 2004Defendant applied for special leave to appeal against [2003] QCA 14; application dismissed: Callinan and Heydon JJ

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

Case NameFull CitationFrequency
R v Alexanderson [2001] QCA 400
1 citation

Cases Citing

Case NameFull CitationFrequency
R v Ali [2003] QCA 117 2 citations
R v AP [2003] QCA 4451 citation
R v Graham [2015] QCA 1372 citations
R v Lester [2004] QCA 34 3 citations
R v Mallie; ex parte Attorney-General [2009] QCA 1092 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.