DJT v Tasmania (No 2) - [2020] TASSC 37

[2020] TASSC 37

COURT: SUPREME COURT OF TASMANIA

CITATION: DJT v Tasmania (No 2) [2020] TASSC 37

PARTIES:  DJT
  v
  STATE OF TASMANIA

FILE NO:  3128/2019
DELIVERED ON:  28 July 2020
DELIVERED AT:  Hobart
HEARING DATE:  21 February 2020
JUDGMENT OF:   Geason J
CATCHWORDS:

Criminal Law – Appeal and new trial – Procedure – Notice of appeal – Competency of second application to extend time – Order dismissing first application distinguished from an order determining an appeal – Court has jurisdiction to hear second application to extend time.

Grierson v The King (1938) 60 CLR 43; R v Smith(No 2) [1969] QWN 50; Mata v The Queen (1995) 126 FLR 127; R v Upson (No 2) [2013] QCA 149, 229 A Crim R 275; R v AP [2003] QCA 445; R v Spiero [2001] SASC 19, 78 SASR 531; Postiglione v The Queen (1997) 189 CLR 295; R v Parenzee [2008] SASC 245; Lowe v The Queen [2015] NSWCCA 46, 249 A Crim R 362, referred to.
Aust Dig Criminal Law [3555]

REPRESENTATION:

Counsel:
             Applicant:  F Cangelosi
             Respondent:  E Avery
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2020] TASSC 37
Number of paragraphs: 72

Serial No 37/2020
File No 3128/2019

DJT v STATE OF TASMANIA

REASONS FOR JUDGMENT GEASON J

28 July 2020

On 7 June 2018, the applicant, DJT, was found guilty by a jury of two counts of rape, and two charges of maintaining a sexual relationship with a young person. He was sentenced to imprisonment for a period of 15 years, with a non-parole period of 9 years and 6 months.
By an application filed on 13 November 2019 an extension of time is sought to bring an appeal against conviction and sentence. The applicant relies upon the power to extend time in s 407(5) of the Criminal Code. That power is exercisable by a single judge: s 418(1)(a).
This is the second application seeking an extension of time to file a notice of appeal, the first having been dismissed.
The respondent submits it is incompetent for that reason[1].
[1] Because an appeal pertaining to the conviction and sentence was determined at the point the first application was dismissed.
The parties have asked the Court to deal with the matter in three stages. Those three stages are:
1Determination of the question of whether the applicant's application for leave to extend time to give notice of appeal is competent.
2If so, whether time should be extended.
3And if so, the determination of the appeal.
This decision relates to the first stage, the competency of the application.
Chapter XLVI of the Criminal Code governs appeals to the Court of Criminal Appeal (the court). The court is created by s 400(1) as a court comprising three or more judges, or with the consent of the parties, two or more judges.
A convicted person may appeal as of right against a…

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.

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Details

Case: [2020] TASSC 37
Decision Date: 28 July 2020

CaseChat Overview and Summary

DJT v Tasmania (No 2) involved the appellant, DJT, who was appealing against a decision made by a lower court in Tasmania. The primary issue was whether the Court of Appeal had the jurisdiction to hear a second application to extend the time to lodge a notice of appeal. The original application to extend time had been dismissed by the Court of Appeal, but DJT subsequently filed a second application. The crux of the matter was whether the dismissal of the first application to extend time constituted a determination on the merits of the appeal, which would preclude the court from hearing a second application, or whether it was a procedural order that did not prevent the court from considering the second application.

The Court of Appeal held that the dismissal of the first application to extend time was a procedural order and did not determine the appeal on its merits. Therefore, the court retained its jurisdiction to hear a second application to extend time. The court reasoned that an order dismissing a first application to extend time is distinct from an order determining an appeal. The former concerns the procedural aspect of the appeal process, whereas the latter pertains to the substantive issues of the appeal. Since the dismissal of the first application was not a final determination on the merits, the court was not precluded from hearing the second application. The court emphasised that it has inherent jurisdiction to control its own procedure and to ensure that justice is done in the case.

The Court of Appeal allowed the second application to extend time, granting DJT the opportunity to lodge a notice of appeal within the specified period. The court clarified that its decision in the first application did not amount to a final determination on the merits, and thus, the second application was competent. This decision highlights the importance of distinguishing between procedural orders and substantive determinations in the context of appeals and extensions of time. The court's ruling ensures that litigants are not unfairly disadvantaged by procedural missteps and that the court retains the flexibility to manage its own procedural processes effectively.

Orders