Dalziell v Booth - [2015] ACTCA 27

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Dalziell v Booth
Citation:	[2015] ACTCA 27
Hearing Date(s):	3 June 2015
DecisionDate:	3 June 2015
Before:	Refshauge ACJ
Decision:	The application is dismissed.
Category:	Principal Judgment
Catchwords:	APPEAL – Application for leave to appeal – Application for leave to appeal out of time – Reasonable prospects of success in the appeal – Sentence not manifestly excessive – Sentence not outside the appropriate range
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), s 17 Drugs of Dependence Act 1989 (ACT), s 171(1)(a)
Cases Cited:	Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) (2008) 2 ACTLR 44 Dalziell v Booth [2015] ACTSC 86 R v Meyboom [2012] ACTCA 2 Travini v Starczewski (2009) 169 ACTR 1
Parties:	Thomas Dalziell (Appellant) Stephen Alan Booth (Respondent)
Representation:	Counsel Mr T Dalziell (in person) (Appellant) Mr M Reardon (Respondent)
Solicitors Mr T Dalziell (in person) (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number(s):	ACTCA 22 of 2015

Decision under appeal:

Court/Tribunal: ACT Supreme Court

Before: Burns J

Date of Decision: 7 April 2015

Case Title: Dalziell v Booth

Citation: [2015] ACTSC 86

REFSHAUGE J:

This is an application for leave to appeal from a decision of Burns J on 7 April 2015 in Dalziell v Booth [2015] ACTSC 86 in which his Honour dismissed an application for leave to appeal out of time. In an unfortunate set of circumstances, Mr Dalziell did not appear on 7 April 2015 when his application for leave to appeal was listed before the Court and his Honour dismissed the application.

Mr Dalziell had been charged with one offence of possession of a prohibited substance, namely cannabis, on 15 January 2014. That was an offence under s 171(1)(a) of the Drugs of Dependence Act 1989 (ACT). He was convicted on a plea of guilty that he entered and was fined $50.

His application for leave to appeal sought the setting aside of the conviction and the entry of a non-conviction order instead, that is, an order under s 17 of the Crimes (Sentencing) Act 2005 (ACT).

When Mr Dalziell obtained the sealed application for leave to appeal from the court registry, he was told to serve a copy on the Director of Public Prosecutions. Unfortunately, when serving it, he left both copies and did not make a note of the day, namely 7 April 2015, when his application was to be heard.

He failed to attend and only found out after that date by a series of letters, which were originally misdelivered, that the date had passed and that he had been not present and, as a consequence, the appeal had been dismissed.

His application now is for leave to appeal to the Court of Appeal on the basis that the decision by Burns J was an interlocutory judgment. I have some concern about whether it was an interlocutory judgment or not because the decision of Burns J would have terminated the…

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 Dalziell v Booth

Details

AGLC: Dalziell v Booth [2015] ACTCA 27
Case: [2015] ACTCA 27
Decision Date: 3 June 2015

CaseChat Overview and Summary

Dalziell (the applicant) sought leave to appeal against a sentence imposed by the District Court. Booth (the respondent) was the Crown. The application was heard by Refshauge ACJ in the Supreme Court of the Australian Capital Territory.

The primary legal issue before the Court was whether the applicant had demonstrated reasonable prospects of success in an appeal against the sentence. This required the Court to consider whether the sentence imposed was manifestly excessive or outside the appropriate range for the offence committed.

Refshauge ACJ considered the grounds of appeal and the material before the Court. His Honour concluded that the sentence imposed was not manifestly excessive and fell within the appropriate range. Consequently, the applicant had not demonstrated reasonable prospects of success in the proposed appeal.

The application for leave to appeal was therefore dismissed.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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