Application of Ainsley Whitney - [2020] NSWCCA 146

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Application of Ainsley Whitney [2020] NSWCCA 146
Hearing dates: On the papers
Decision date: 02 July 2020
Before: Meagher JA, Harrison J, Button J
Decision:
(1) Leave to apply to set aside or vary the judgment given on 15 April 2020 is granted.
(2) The application is dismissed.

Catchwords:
CRIME – appeals – application under r 50C of the Criminal Appeal Rules to set aside judgment and reconsider merits of the appeal – misapprehension about facts established – whether error had material effect on determination of appeal – material effect not established – application dismissed

Legislation Cited:
Criminal Appeal Rules (NSW), r 50C

Cases Cited:
Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69
Application of Malcolm Potier (No 3) [2015] NSWCCA 306
Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
El Ali v R (No 2) [2019] NSWCCA 289
Grierson v The King (1938) 60 CLR 431; [1938] HCA 45
Kauwenberghs v R (Cth) [2009] NSWCCA 201
Patrick v R; Whitney v R [2020] NSWCCA 63

Category: Consequential orders (other than Costs)
Parties: Ainsley Whitney (Applicant)
Regina (Crown)
Representation:
Counsel:
P Krisenthal (Applicant)
E Wilkins SC (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2017/21272
Publication restriction: Pseudonym adopted for one person
Decision under appeal

Court or tribunal:

Court of Criminal Appeal

Jurisdiction:

Criminal

Citation:

2020 NSWCCA 63

Date of Decision:

15 April 2020

Before:

Meagher JA, Harrison J, Button J

File Number(s):

2017/21272

Judgment

THE COURT:

Introduction

On 15 April 2020, this Court as presently constituted delivered judgment and dismissed the appeal against sentence of Mr Shane Patrick. At the same time, it upheld the appeal against sentence of Mr Ainsley Whitney (the applicant), but only by correcting a slip at first instance with regard to backdate: see Patrick v R; Whitney v R [2020] NSWCCA 63.
This judgment assumes familiarity with that earlier judgment. To recap briefly, nevertheless, to permit convenient understanding: those determinations of this Court related to the sentences imposed by Colefax SC DCJ on 30 January 2019.
Mr Patrick and the applicant had each pleaded guilty to an offence of reckless wounding in company, which they had committed with each other. Mr Patrick also pleaded guilty to knowingly taking part in the supply of a prohibited drug and the possession of an unauthorised firearm.
The undisputed background to the wounding offence was that Mr Patrick and the applicant agreed to evict the victim, the female romantic partner of their friend (referred to in the original judgment as Mr Argus, a pseudonym), from her home. In the result, Mr Patrick, armed with a steel chain with a small metal padlock attached to one end, swung the chain and hit the victim in the head, causing severe pain and bleeding, whilst the applicant was present as an accessory.
In the event, the learned sentencing judge imposed upon the applicant…

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 Application of Ainsley Whitney

Details

AGLC: Application of Ainsley Whitney [2020] NSWCCA 146
Case: [2020] NSWCCA 146
Decision Date: 02 July 2020

CaseChat Overview and Summary

The case involved an application by Ainsley Whitney under rule 50C of the Criminal Appeal Rules. Whitney sought to set aside a previous judgment and have the merits of his appeal reconsidered. The nature of the dispute was centred around the interpretation and application of the rule in the context of alleged misapprehension about facts established during the proceedings. The court hearing the application was the Court of Appeal.

The central legal issue for the court was whether there was a misapprehension about the facts that had been established, and if such a misapprehension had a material effect on the determination of the appeal. Whitney argued that the original court had misapprehended certain facts which led to an unjust outcome in his appeal. The court had to examine whether this alleged error materially affected the outcome and if so, whether the application should be granted to allow for reconsideration of the appeal's merits.

In assessing the application, the court carefully reviewed the original judgment and the facts as established. The court determined that while there may have been some errors in the interpretation of facts, these did not materially affect the determination of the appeal. The court concluded that the errors, even if present, did not lead to a different outcome on the appeal. Consequently, the application to set aside the judgment and reconsider the appeal was dismissed. The reasoning underscored that for such an application to succeed, the misapprehension must have a significant impact on the appeal's outcome, which was not demonstrated in this case.

Orders