Davidson v The Queen - [2012] ACTCA 1

JAMIE DOUGLAS DAVIDSON v THE QUEEN
[2012] ACTCA 1 (31 January 2012)

APPLICATION – seeking leave to appeal out of time against convictions imposed in the Magistrates Court – no acceptable reason for delay – application refused
APPLICATION – seeking leave to appeal out of time against orders from a single judge of the Supreme Court – no demonstrable error argued – application refused

Evidence Act1995 (Cth), ss 38, 66
Magistrates Court Act 1930 (ACT), ss 208, 209
Supreme Court Act 1933 (ACT), s 37E

Court Procedure Rules 2006, rr 5171, 5174

Attorney-General (NSW) v Spautz [2001] NSWSC 66
Giannarelli v Wraith (1988) 165 CLR 543
Matta v The Queen (1995) 126 FLR 127
R v Davis [2003] VSCA 173
R v O’Keefe [1979] VR 1
R v Tait [1999] 2 Qd R 667

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 52 – 2011
No. SCA 53 of 2011

Judge: Burns J
Court of Appeal of the ACT

Date: 31 January 2012

IN THE SUPREME COURT OF THE     )          No. ACTCA 52 – 2011
  )          No. SCA 53 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JAMIE DOUGLAS DAVIDSON
Applicant

AND: THE QUEEN
Respondent

ORDER

Judge:  Burns J
Date:  31 January 2012
Place:  Canberra

THE COURT ORDERS THAT:

The application for leave to appeal out of time against the convictions imposed in the Magistrates Court on 26 May 2011 is refused.

The application for leave to appeal out of time from the orders of Refshauge J of 20 July 2011 is refused.

The applicant has made an application to the Court of Appeal for leave to appeal out of time against convictions and sentences. On 26 May 2011 the applicant was convicted in the ACT Magistrates Court after a contested hearing of one charge of assault occasioning actual bodily harm and one charge of common assault. I understand the complainant with respect to those charges to be the applicant’s de facto partner. He was sentenced to 12 months imprisonment on the charge of assault occasioning actual bodily harm and six months imprisonment on the charge of common assault, the sentences to be served consecutively but with the sentence to be suspended after 12 months and the applicant to be released subject to his compliance with a good behaviour order.

The applicant appealed against both his convictions and sentences. However, before his appeal came on for hearing his then solicitor, Mr Andrew Fraser, filed a notice discontinuing the applicant’s appeal against his convictions. The appeal continued as appeals against sentence only and was heard by Refshauge J on 20 July 2011. His Honour dismissed the appeals and confirmed the sentences imposed by the learned Magistrate. The applicant submits that his appeal to the Supreme Court against the convictions imposed in the Magistrates Court was discontinued by his legal representatives without his instructions. The applicant further…

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 Davidson v The Queen

Details

AGLC: Davidson v The Queen [2012] ACTCA 1
Case: [2012] ACTCA 1
Decision Date: January 31, 2012

CaseChat Overview and Summary

Burns J of the Supreme Court of Queensland considered an application for leave to appeal out of time against convictions imposed in the Magistrates Court. The applicant also sought leave to appeal out of time against orders made by a single judge of the Supreme Court.

The primary legal issue before the Court was whether there were acceptable reasons for the significant delay in filing the applications for leave to appeal. A further issue, in relation to the appeal against the single judge's orders, was whether any demonstrable error had been identified.

Burns J refused the application for leave to appeal out of time against the Magistrates Court convictions, finding no acceptable reason for the delay. Similarly, the application for leave to appeal out of time against the single judge's orders was refused, as no demonstrable error was argued. The Court therefore made no orders granting leave to appeal.

Orders

Orders of the court

The application for leave to appeal out of time against the convictions imposed in the Magistrates Court on 26 May 2011 is refused.

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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