Crespin v The Queen - [2016] VSCA 224

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0164

KITCHENER CRESPIN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, OSBORN and FERGUSON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 September 2016
DATE OF JUDGMENT:	16 September 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 224

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CRIMINAL LAW – Appeal – Interlocutory Appeal – Refusal of trial judge to certify – Application for review of refusal to certify – Application made out of time – Whether discretion of Court of Appeal to extend time should be exercised – Reasons for late application – Application hopeless – Time not extended – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J F Desmond	–
For the Respondent	Mr D P Holding	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA:
OSBORN JA:
FERGUSON JA:

The applicant is facing six charges of criminal damage to property before the County Court at Melbourne. The offences allegedly occurred on a series of dates in January 2013.

The applicant is a builder by occupation and the prosecution case is that he went to a building site on a series of occasions after falling into dispute with the owners and wilfully damaged different parts of a partially constructed building.

The case is founded upon a combination of circumstantial evidence which together gives rise to a strong prima facie case.

The defence response initially filed in the County Court indicated that the applicant proposed to deny that he caused the damage and then to contend that, if he did cause the damage, he lacked the necessary mens rea for the offences or had a lawful justification for doing what he did. Subsequently, counsel for the applicant has indicated that it is not now disputed that the applicant caused the damage forming the basis of the charges.

At the committal stage (5 August 2013), the applicant was represented by Mr Dunn QC and Mr Dann (now also a senior counsel).

Initially he faced three charges but, after pleading guilty to one rolled up charge, the two further charges were withdrawn.

The applicant entered a plea of guilty apparently in the expectation, or at least the hope, that this might lead to the matter proceeding summarily in the Magistrates’ Court. The Magistrate did not accede to an adjournment intended to facilitate this course by enabling a further investigation of quantum.

When the matter came on for directions before Judge Meredith in the County Court, the applicant pleaded not guilty to the six charges relating to the disaggregated elements of the conduct which had formed the basis of the initial charge to which he pleaded.[1]
[1]The committal transcript records:
HER HONOUR: Very well, thank you. Mr Crespin, what I’m now required to do is give you the formal caution in relation to this matter. You may plead guilty or not guilty. If you plead guilty to all of the charges or some of the charges today or at any time before or during your trial, a sentencing judge…

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 Crespin v The Queen

Details

AGLC: Crespin v The Queen [2016] VSCA 224
Case: [2016] VSCA 224
Decision Date: 16 September 2016

CaseChat Overview and Summary

The appellant, Crespin, sought an appeal against the decision of a trial judge to refuse to certify a case for appeal to the Court of Appeal. Crespin applied for a review of the trial judge's refusal to certify out of time, and the application was dismissed by the primary judge. Crespin then applied to the Court of Appeal for an extension of time to appeal the primary judge's decision. The central issue before the Court of Appeal was whether it should exercise its discretion to extend the time for Crespin to appeal the primary judge's decision. The court considered the reasons for the late application and concluded that the application was hopeless. The Court of Appeal held that it would not exercise its discretion to extend the time for Crespin to appeal the primary judge's decision. The court found that the reasons for the late application were insufficient to warrant an extension of time. The court also found that the application was hopeless, as it was unlikely to succeed on the merits. The Court of Appeal refused Crespin's application for an extension of time to appeal the primary judge's decision.

Orders