Calcutt v The Queen [2012] HCATrans 221 - [2012] HCATrans 221

[2012] HCATrans 221

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S118 of 2012

B e t w e e n -
RYAN ASHLEY CALCUTT
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 SEPTEMBER 2012, AT 2.23 PM

MR G.O’L. REYNOLDS, SC: May it please the Court, I appear for the applicant with my learned friend, MR P.D. LANGE. (instructed by Matouk Joyner Solicitors)

MR L.A. BABB, SC: I appear with my learned friend, MR B.C. DEAN, your Honours. (instructed by Solicitor for Public Prosecutions (NSW))

GUMMOW J: Yes. Mr Reynolds.

MR REYNOLDS: Your Honours, before I commence, there are two matters. First of all, the application is out of time and I need a time extension which I gather is not opposed.

GUMMOW J: Is that true?

MR BABB: That is correct, your Honour.

GUMMOW J: You have that extension.

MR REYNOLDS: Thank you, your Honour. Secondly, we have a small bundle of materials ‑ ‑ ‑

GUMMOW J: We are going to read them on the spot, are we? Why are we being asked to read them on the spot?

MR REYNOLDS: The only thing I think I am taking your Honours to is the relevant section which is not anywhere in the application book, I do not think.

GUMMOW J: Perhaps you had better fish them out; your junior had better fish them out. That looks a bit easier to handle.

MR REYNOLDS: Your Honours, the issue raised by this application is the correct interpretation of section 33(2) of the Crimes (Sentencing Procedure) Act 1999. The text of that is the document I just handed to the Court. The words that are used there are that the court may take a further offence into account in dealing “with the offender for the principal offence”. This deals with a situation where someone is charged with one offence, which is called the principal offence, and the offender in what is known as a form 1 procedure admits further offences, which is the further offence or offences, and then the court is asked to take that into account in dealing with the issue of sentence. The question of construction that arises under this section is how is that further offence with which the offender is not charged to be taken into account? What are the relevant principles?

BELL J: That was the subject of a guideline judgment, was it not?

MR REYNOLDS: Quite so.

BELL J: Is it suggested that the guideline judgment contains some error or that it was not applied as it should have been?

MR REYNOLDS: No. What is suggested is that there have arisen two different interpretations of that guideline judgment, in particular about eight lines of it, which I can take your Honours to.

BELL J: Just before you do that, when you say “two…

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: [2012] HCATrans 221
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia by the applicant, Calcutt, against the decision of the Supreme Court of Queensland. The applicant sought to challenge his conviction for a serious criminal offence.

The primary legal issue before the High Court was whether the applicant had established an arguable case of error in the decision of the Supreme Court of Queensland, which had dismissed his appeal against conviction. Specifically, the High Court considered whether the applicant's grounds of appeal raised a question of law that warranted further consideration.

Gummow and Bell JJ refused special leave to appeal. Their Honours found that the grounds of appeal did not disclose an arguable case of error on a question of law. The application was therefore dismissed.

Orders