Dalziell v Booth
[2015] ACTCA 27
•3 June 2015
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 |
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 rights of Mr Dalziell.
In any event, Mr Dalziell would have needed leave to appeal out of time in any event and so the same principles apply to both applications. I have set them out in R v Meyboom [2012] ACTCA 2 and they include an explanation as to the reasons why there was a delay and, in relation to both leave to appeal from an interlocutory judgment and leave to appeal out of time, an explanation as to whether there were prospects of success in the appeal.
In the draft Notice of Appeal that was filed with the application in the Supreme Court, Mr Dalziell indicated that he wished to file some additional evidence which might be admissible on the appeal.
I found it difficult to understand precisely what extra evidence it was that he wished to adduce. He was critical of the procedures used by the police to weigh the cannabis that was found in his possession, suggesting that it was weighed in the plastic bag and therefore the weight was excessive and greater than the actual weight of cannabis. On the material before me, of course, it is not possible to determine that. He suggests that the weight was about four grams and not the eight grams with which he was charged.
In my view, the difference between eight grams and four grams of cannabis in the circumstances would not have meant that the sentence, the fine imposed by the learned Magistrate, was manifestly excessive or should nevertheless be set aside.
Mr Dalziell was concerned that the amount was well below the amount that can be dealt with by an offence notice as a simple cannabis offence under s 171A of the Drugs of Dependence Act 1989 (ACT), namely 50 grams.
Mr Dalziell also indicated that he thought some of the matters in the Statement of Facts were incorrect. He did not challenge the Statement of Facts in the Magistrate Court.
It appears that he was given some advice by a lawyer about this but was not represented at the time. The challenge appeared to concern his behaviour at the time of the offence which could be said to be aggressive and inappropriate.
It is very difficult on an appeal to challenge those facts if they have not been challenged at the time, unless there was some error in the process or procedure by the Magistrate at first instance. It does not seem to me that, in the circumstances, it is likely that his challenge to the Statement of Facts, tendered without objection, would be sufficient to satisfy the test of showing a reasonable prospect of success on the appeal.
The third matter raised by Mr Dalziell was that there are severe consequences for him in that he may be denied an opportunity to participate in activities which would require a Working with Vulnerable People Check which might disclose this conviction and prevent him from doing so. He also indicated that it might prevent him obtaining a visa for travel to certain countries.
Those are ordinary consequences of findings of guilt and convictions: Travini v Starczewski (2009) 169 ACTR 1 at 14; [85]. It may be that lesser severity is given regard by such agencies for findings of guilt which lead to a non-conviction order under s 17 of the Crimes (Sentencing) Act (2005) (ACT), but the fact is that a finding of guilt still shows that the offence has been committed and, indeed, to his credit, Mr Dalziell does not ignore that fact and accepts that that is so.
It seems to me that I need to view appeals from interlocutory judgments carefully because the purpose for which such leave is required is to ensure that only matters that are appropriate for the resources of the courts are dealt with by the courts. See Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) (2008) 2 ACTLR 44 at 51; [23]-[25]. Miscarriages of justice are important but a miscarriage of justice is only to be proved by showing that there is a real likelihood that the sentence was manifestly excessive.
In all the circumstances, I see no basis for holding that, in this case, the sentence was manifestly excessive or that the sentence was outside the range that was appropriate for the matter dealt with, even taking into account all the matters to which Mr Dalziell has drawn my attention.
Accordingly, I will dismiss the application.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Refshauge. Associate: Date: 18 June 2015 |
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