B v The Queen - [2015] HCASL 187

B
v
THE QUEEN
[2015] HCASL 187
S135/2015

Following a jury trial in the District Court of New South Wales (Judge Woodburne SC), the applicant was found guilty of one count of contravening s 65Y of the Family Law Act 1975 (Cth), having been a party to proceedings in which a qualifying parenting order was made, and having taken the child concerned to a place outside Australia while that parenting order was in force. The applicant was released, without sentence having been passed, upon entry into a recognisance to be of good behaviour.
The applicant appealed against conviction and sought leave to appeal against sentence. The Court of Criminal Appeal of the Supreme Court of New South Wales (Ward JA, Simpson and Wilson JJ) granted the applicant leave to appeal against sentence and dismissed both appeals.
The applicant now seeks special leave to appeal from the orders of the Court of Criminal Appeal. The applicant does not have legal representation. The application therefore falls to be dealt with under r 41.10 of the High Court Rules 2004 (Cth).
The applicant requires an enlargement of time within which to lodge this application. The enlargement of time should be granted but special leave to appeal should be refused. Several of the grounds upon which the applicant seeks special leave to appeal replicate those raised in the Court of Criminal Appeal, and the applicant has not demonstrated any reason to doubt the correctness of that Court's decision. To the extent that the applicant seeks to raise novel grounds, such grounds have insufficient prospects of success to warrant the grant of special leave.
Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
4 November 2015

S.J. Gageler

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.

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Details

Case: [2015] HCASL 187
Decision Date

CaseChat Overview and Summary

The matter before the court was an application by B, an individual who was found guilty of contravening a parenting order by taking a child out of Australia, against the decision of the Court of Criminal Appeal of the Supreme Court of New South Wales which dismissed his appeal against conviction and sentence. B sought special leave to appeal to the High Court against the decision of the Court of Criminal Appeal. B did not have legal representation, and the application was dealt with under the relevant rules of the High Court.

The legal issues in this case centred on the correctness of the decision of the Court of Criminal Appeal to dismiss B's appeal against conviction and sentence. B argued that the Court of Criminal Appeal erred in law by not considering certain evidence and by misapplying the law in relation to the sentence. The court was required to determine whether the application for special leave to appeal should be granted and whether an enlargement of time should be allowed for B to lodge the application.

The court found that the grounds upon which B sought special leave to appeal largely replicated those raised in the Court of Criminal Appeal and that B had not demonstrated any reason to doubt the correctness of that Court's decision. The court also found that the novel grounds raised by B had insufficient prospects of success to warrant the grant of special leave. Accordingly, the court refused the application for special leave to appeal. However, the court did grant an enlargement of time for B to lodge the application.

Orders