Chowdhury v Kenny

[2011] WASCA 181

CHOWDHURY -v- KENNY [2011] WASCA 181

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASCA 181
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:239/2010	Heard:	19 AUGUST 2011
Coram:	BUSS JA	Delivered:	19/08/11
No of pages:	4	Judgment Part:	1 of 1
Result:	Application for urgent appeal order dismissed Application for leave to adduce additional material referred to the hearing of the application for an extension of time for leave to appeal
Category:	B
PDF Version

Parties:	MOHAMMAD CHOWDHURY SAMANTHA MARGARET KENNY
Catchwords:	Criminal law Applications in appeal Application for urgent appeal order Application for leave to adduce additional material Turns on own facts
Legislation:	Nil
Case References:	Chowdhury v Kenny [2010] WASC 348 Wheeler v The Queen [2010] WASCA 2

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CHOWDHURY -v- KENNY [2011] WASCA 181 CORAM : BUSS JA HEARD : 19 AUGUST 2011 DELIVERED : 19 AUGUST 2011 FILE NO/S : CACR 239 of 2010 BETWEEN : MOHAMMAD CHOWDHURY

Appellant

AND

SAMANTHA MARGARET KENNY
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : JENKINS J

Citation : CHOWDHURY -v- KENNY [2010] WASC 348

File No : SJA 1087 of 2010

Catchwords:

Criminal law - Applications in appeal - Application for urgent appeal order - Application for leave to adduce additional material - Turns on own facts

(Page 2)

Legislation:

Nil

Result:

Application for urgent appeal order dismissed

Application for leave to adduce additional material referred to the hearing of the application for an extension of time for leave to appeal

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : Ms S Linton

Solicitors:

Appellant : In person
Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Chowdhury v Kenny [2010] WASC 348
Wheeler v The Queen [2010] WASCA 2


(Page 3)

1 BUSS JA: On 30 April 2010, the appellant was convicted in the Magistrates Court at Armadale, on his plea of guilty, on a charge which alleged that on 30 November 2009, at Kelmscott, he unlawfully wounded the complainant.

2 He was sentenced to an intensive supervision order for a period of 12 months with supervision and programme requirements.

3 The appellant then made application to the Supreme Court for leave to appeal against conviction and sentence.

4 On 11 November 2010, Jenkins J dismissed the application. She published written reasons for decision. See Chowdhury v Kenny [2010] WASC 348.

5 On 14 December 2010, the appellant filed an appeal notice in this court. He needs an extension of time to apply for leave to appeal. He has amended the appeal notice twice.

6 The appellant has now made application in the appeal for an urgent appeal order. He has also made application in the appeal for leave to adduce additional material. These applications are before me today. They are supported by the appellant's affidavits sworn 16 August 2011.

7 I have read and considered the reasons for decision of Jenkins J, the appellant's case filed 28 July 2011, the applications before me today and the appellant's affidavits sworn 16 August 2011. I also have the benefit of the appellant's oral submissions.

8 The factors that are relevant in deciding whether to make an urgent appeal order were referred to by Wheeler JA in Wheeler v The Queen [2010] WASCA 2. It is unnecessary to repeat them.

9 I am satisfied that no proper basis exists for making an urgent appeal order. My reasons are as follows. First, I am not persuaded that the apparent merits of the grounds of appeal, as revealed in the material before me, are sufficient to justify making the order. Secondly, the appellant is not in custody, and he has completed the non-custodial sentence imposed by the magistrate. Thirdly, in the ordinary course, the appellant's substantive applications are likely to be listed in or about November 2011. Fourthly, the prejudice the appellant is allegedly suffering as a result of the conviction does not, in my view, justify expedition.

(Page 4)

10 The application for an urgent appeal order will therefore be dismissed.

11 The application for leave to adduce additional material will be referred to the substantive hearing.

12 The orders I make today are these:

1. The application for an urgent appeal order is dismissed.

2. The application for leave to adduce additional material is referred to the hearing of the application for an extension of time for leave to appeal.