R v Harms [2002] QCA 99

"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.