DS v Benjamin Athol Palmer

[2011] ACTSC 161

DS v BENJAMIN ATHOL PALMER & ANOR
[2011] ACTSC 161 (15 September 2011)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 38 of 2011

Judge:             Higgins CJ
Supreme Court of the ACT

Date:              15 September 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCA 38 of 2011
AUSTRALIAN CAPITAL TERRITORY           )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DS

Appellant

AND:BENJAMIN ATHOL PALMER and RAITH ALISTAIR PEARSON

Respondents

ORDER

Judge:  Higgins CJ
Date:  15 September 2011
Place:  Canberra

THE COURT ORDERS THAT:

1. The sentences imposed by her Honour should be backdated to 25 August 2010, and the appeal be upheld to that extent.

1. I have already indicated that the way in which this matter came before the Magistrates Court was wholly unsatisfactory.  There was an inexplicable delay in bringing proceedings, which ought to have been commenced on 25 August 2010, and come to court shortly after that, if not the same day.  They did not.  As a result, other matters were dealt with and, in effect, this matter was left to be brought on towards the conclusion of the sentence imposed for those matters. 

1. That to my mind is quite wrong, and in fact it is oppressive and of itself deserves condemnation, both in terms of the delay itself, but also in the effect of it.  It is hard to imagine that effect could not have been foreseen and intended. 

1. In those circumstances, the prosecution seemed to have wanted the matter to be dealt with separately, quite divorced from the other matters, without taking into account whether they should be so dealt with.  The sentences imposed by her Honour Magistrate Fryar should therefore be backdated to 25 August 2010, and the appeal is upheld to that extent.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date:    4 November 2011

Counsel for the Appellant:  Mr M Toole
Solicitor for the Appellant: Legal Aid ACT
Counsel for the Respondent:  Ms S Tasneem
Solicitor for the Respondent:  Director of Public Prosecutions for the ACT
Date of hearing:  15 September 2011
Date of judgment:  15 September 2011