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Etchell v R

Etchell v R

Case [2010] NSWCCA 262 15 November 2010

Appeal

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Criminal Law

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Reported Decision: 205 A Crim R 138

New South Wales

Court of Criminal Appeal

CITATION: ETCHELL v R [2010] NSWCCA 262

HEARING DATE(S): 22 September 2010

JUDGMENT DATE:
15 November 2010

JUDGMENT OF: Campbell JA at 1; Latham J at 57; Price J at 58

DECISION: Application for extension of time dismissed.

CATCHWORDS: APPEAL – practice and procedure – extension for time to appeal – CRIMINAL LAW – appeal – procedure – notices of appeal – time for appeal and extension thereof – principles relevant to courts decision whether or not to grant extension of time – considerations include reason for delay, proposed grounds of appeal and finality of judicial decisions – whether miscarriage of justice in fixing balance of term less than one-third of non-parole period – whether miscarriage of justice in judge’s misdescription of victim of offence – application for extension of time dismissed

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Appeal Rules
Interpretation Act 1987

CATEGORY: Principal judgment

CASES CITED: Arja v R [2010] NSWCCA 190
Edwards v R [2009] NSWCCA 199
Jackson v R [2010] NSWCCA 162
McCall v R [2010] NSWCCA 174
R v Gregory [2002] NSWCCA 199
R v Ramsden (1972) Cr. L. Rev. 547
R v Unger [1977] 2 NSWLR 990
Wakefield v R [2010] NSWCCA 12

PARTIES: John Nicholas Etchell (Applicant)
Regina (Crown)

FILE NUMBER(S): CCA 2007/3042

COUNSEL: A Francis (Applicant)
P G Ingram (Crown)

SOLICITORS: Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/61/0024

LOWER COURT JUDICIAL OFFICER: Woods AJ

LOWER COURT DATE OF DECISION: 12 June 2007

2007/3042

CAMPBELL JA
LATHAM J
PRICE J
15 NOVEMBER 2010

John Nicholas ETCHELL v The Queen

Judgment

1 CAMPBELL JA: This is an application for extension of time in which to seek leave to appeal against sentence. For the purpose of the hearing, both the Applicant and the Crown have presented those arguments they would wish to present if the extension of time were granted.

2 The Applicant was sentenced in the District Court at Orange on 12 June 2007 after pleading guilty to six counts:

“1 On or about 12 July 2006 at Dubbo, in the State of New South Wales, he did break and enter a store, namely Astley’s Plumbing and Hardware, the property Stuart Ross Astley at Cobbora Road, with intent to commit a serious indictable offence inside those premises, namely larceny.

2 On or about 19 July 2006 at Dubbo, in the State of New South Wales, he did break and enter a dwelling house at Village Life Retirement Home, Wheeler’s Lane, and did commit a serious indictable offence therein, and namely did steal a wallet and an Australian Credit Union Credit card the property of Gavin Wayne Rogers.

3 On or about 10 August 2006 at Wellington, in the State of New South Wales, did break and enter a dwelling house, at 150 Percy Street, and did commit 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.

Continue reading Etchell v R

Details

AGLC: Etchell v R [2010] NSWCCA 262
Case: [2010] NSWCCA 262
Decision Date: 15 November 2010

CaseChat Overview and Summary

In the case of Etchell v R, the appellant, Etchell, sought an extension of time to appeal his conviction and sentence. The matter was heard in the High Court of Australia. The primary dispute centred on whether the court should grant an extension beyond the statutory time limit for lodging a notice of appeal, which had expired. Etchell argued that the delay was due to his legal representation's oversight and that he had meritorious grounds for appeal, including a potential miscarriage of justice in the sentencing and an error in the description of the victim.

The court was required to determine the appropriate principles and considerations for deciding whether to grant an extension of time for lodging a notice of appeal. This included examining the reason for the delay, the proposed grounds of appeal, and the importance of the finality of judicial decisions. The court also needed to assess whether a miscarriage of justice had occurred in the sentencing, and whether the judge's misdescription of the victim constituted grounds for an extension.

The court found that the principles guiding the decision to grant an extension of time were well established. It considered the reason for the delay, the prospects of success of the appeal, and the importance of finality in judicial decisions. The court held that the reasons provided for the delay were not sufficient to warrant an extension, and that the proposed grounds of appeal did not demonstrate a miscarriage of justice. The court also noted that while the misdescription of the victim was an error, it did not impact the outcome of the case. The application for an extension of time was dismissed, and the appeal was not allowed.

Orders