Dalziell v Booth

[2015] ACTSC 86

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Dalziell v Booth

Citation:

[2015] ACTSC 86

Hearing Date:

7 April 2015

DecisionDate:

7 April 2015

Before:

Burns J

Decision:

The application for leave to appeal out of time is dismissed.

Category:

Interlocutory application

Catchwords:

CRIMINAL LAW – Particular Offences – drug offences – possession of a prohibited substance, namely cannabis – conviction recorded in the Magistrates Court – imposition of $50 fine in the Magistrates Court.

APPEAL – Appeals From Magistrates – application for leave to appeal out of time – no appearance by the appellant without explanation – low prospects of success on appeal – application dismissed.

Cases Cited:

Drugs of Dependence Act 1989 (ACT) s 171 (1)

Parties:

Thomas Dalziell (Appellant)

Stephen Alan Booth (Respondent)

Representation:

Counsel

No appearance (Appellant)

Ms E Beljic (Respondent)

Solicitors

No appearance (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 24 of 2015

Decision under appeal: 

Court/Tribunal:             ACT Magistrates Court

Before:  Magistrate Boss

Date of Decision:         6 February 2015

Case Title:  Booth v Dalziell

Court File Number:      CC14/915

Burns J:

1. This is an application for leave to appeal out of time by Thomas Dalziell. On 6 February this year, the applicant was convicted in the Magistrates Court of one offence contrary to s 171 (1) (a) of the Drugs of Dependence Act 1989 (ACT) of possession of a prohibited substance, namely cannabis, on 15 January 2014. That conviction was based upon a plea of guilty entered by the applicant. On that date, the Magistrate found the offence proved, recorded a conviction and fined the applicant $50.00.

1. On or about 30 March this year, the applicant filed an application for leave to appeal out of time.  That application was apparently filed by the applicant in person and referred to the matter being listed before the court today at 9.30 am.  It is now 9.45 am and there has been no appearance by the applicant.  I note that there is no explanation before me at the present time for the applicant failing to appear to pursue the present application. 

1. The applicant filed an affidavit sworn by himself on 30 March 2015 in support of the application.  In that affidavit he asserts that he was unaware of his right to appeal from the decision of the Magistrate of 6 February 2015 and lodged the application for leave to appeal as soon as he became aware of the fact that an appeal was available. 

1. I note that the draft notice of appeal refers to the applicant potentially seeking to put further evidence before the Court, including affidavits, although none of those affidavits or any other material which the applicant may have been referring to in that part of the draft notice of appeal has been annexed to his affidavit.  On the face of it, the appeal appears to be hopeless. 

1. The Statement of Facts, which was apparently placed before the Magistrate, reveals that the applicant was observed by police to be under the influence of an intoxicating substance and indeed appeared to be well under the influence of such substances.  He behaved in a belligerent and aggressive manner towards the police, such that ultimately he had to be arrested and handcuffed.  He was found to have 8.6 grams of cannabis on him. 

1. I note that the applicant has a very significant criminal history, although it appears that there is no previous conviction with respect to possession or use of drugs; however, he has numerous convictions for serious criminal offending and in recent times has been convicted of offences of driving a motor vehicle with alcohol in his blood or breath, damaging property, and breaching a good behaviour order which was part of a suspended sentence.

1. In my opinion, on the material which is currently before me, the appeal is hopeless.  There being no appearance by the applicant to pursue his application for leave to appeal out of time, the appropriate course is to dismiss the application.

I certify that the preceding seven [7] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: