A J P v the Queen - [2010] VSCA 224

SUPREME COURT OF VICTORIA

COURT OF APPEAL

AJP	S APCR 2010 0258
AJP	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE, HARPER and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 August 2010
DATE OF JUDGMENT:	24 August 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 224
JUDGMENT APPEALED FROM:	R v AJP (Unreported, County Court of Victoria, Judge Wilmoth, 3 August 2010)

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CRIMINAL LAW –Application for leave to bring interlocutory appeal against refusal of adjournment of trial – Application hopeless and, therefore, dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Edney	Revill & Papa Solicitors
For the Crown	Mr C Beale Mr G Bair	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

HARPER JA:
HANSEN JA:

This is an application for leave to bring an interlocutory appeal against a decision of a judge of the County Court to refuse to adjourn the trial of the applicant on three counts of knowingly possessing child pornography.

According to the summary of the prosecution’s proposed opening, the applicant is a 47 year old male who worked as an IT consultant. He was employed at Norman, Disney and Young between December 2005 and August 2006. Between 18 August 2006 and 9 August 2007 police executed search warrants at two residential locations, 33 Buckingham Avenue, Bentleigh and an apartment at 1/435 Punt Road, South Yarra, and at one business location at 6/5 Queens Road, South Yarra. They seized numerous items of computer equipment from each location and upon examination found child pornography on computers from each location. The Crown alleges so finding 130,000 images of child pornography, 735 movie files depicting sexual activity involving a child and 16 documents with reference to sex with children, rape and incest.

The applicant was interviewed by police on two occasions, on 5 August 2007 and 18 April 2008, and he insinuated that the police had planted the pornography on the computers. Subsequently he was charged.

On 18 June 2008 the matter was mentioned in the Magistrates’ Court and adjourned to a contested mention. On 15 July 2008 the contested mention was adjourned to 5 September 2008. On the latter date it was adjourned again and on 20 March 2009, during the adjournment, the applicant pleaded guilty in the County Court to charges of financial deception and burglary, for which he was sentenced on 27 April 2009.

On 4 May 2009 the contested hearing of this matter commenced in the Magistrates’ Court but it was not concluded. During the course of the hearing, the Magistrate took the view that the charges ought be tried on indictment because of the gravity of the pornographic material.

On 18 August 2009, there was a committal hearing in the Magistrates’ Court and the applicant was committed to stand trial in the County Court.

On 15 September 2009, there was a first directions hearing in the County Court at which the applicant sought and was granted bail in relation to the subject offences. Bail was granted, notwithstanding that he was then…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A J P v the Queen

Details

AGLC: A J P v the Queen [2010] VSCA 224
Case: [2010] VSCA 224
Decision Date: 24 August 2010

CaseChat Overview and Summary

The matter before the court involved an applicant, A J P, who sought leave to appeal an interlocutory decision concerning the refusal of an adjournment of his trial. The applicant was facing charges under the criminal law of Australia, and the matter was heard in the High Court of Australia. The central dispute was the applicant's dissatisfaction with the lower court's refusal to grant an adjournment of his trial, which he believed was necessary due to insufficient time to prepare his defence.

The primary legal issue before the court was whether the applicant had provided sufficient grounds to justify an adjournment of the trial. This required the court to assess the merits of the applicant's application for leave to bring an interlocutory appeal against the lower court's decision. The court also needed to determine whether the applicant's application was hopeless, as argued by the respondent, the Queen.

The court found that the application for leave to appeal was indeed hopeless, as the applicant had not demonstrated any reasonable prospect of success in his appeal. The court held that the lower court had not erred in refusing the adjournment, as the applicant had not provided any compelling reasons for the need for an adjournment. Furthermore, the court noted that the applicant had ample time to prepare his defence and that the refusal of the adjournment did not prejudice his right to a fair trial. Consequently, the court dismissed the application for leave to bring an interlocutory appeal against the refusal of the adjournment.

Orders