Finch v The Queen (No 2) - [2016] NSWCCA 153

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Finch v R (No 2) [2016] NSWCCA 153
Hearing dates: On the papers
Decision date: 04 August 2016
Before: Payne JA; McCallum J; Davies J
Decision:
Leave to add a Proposed Ground 11 to the notice of appeal alleging incompetence of defence counsel at the trial is refused.

Catchwords: PRACTICE AND PROCEDURE – criminal appeal – whether leave should be granted to add a further ground of appeal
Legislation Cited: Criminal Appeal Act 1912 (NSW) s 5
Criminal Appeal Rules (NSW) r 25A
Drug Misuse and Trafficking Act 1985 (NSW) s 4
Cases Cited: Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312
Alkhair v R [2016] NSWCCA 4
Finch v R [2016] NSWCCA 133
R v Birks (1990) 19 NSWLR 677
Category: Procedural and other rulings
Parties: Appellant: Stephen John Finch
Respondent: Regina
Representation:
Counsel:
Appellant: Self represented
Crown: V Lydiard
Solicitors:
Appellant: Self represented
Crown: Solicitor for Public Prosecutions

File Number(s): 2010/291599
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

11 February 2013

Before:

Berman SC DCJ

File Number(s):

2010/291599

Judgment

THE COURT: On 13 July 2016 the principal judgment was delivered by the Court in this appeal: Finch v R [2016] NSWCCA 133. In order to understand what follows, this judgment should be read together with the principal judgment.
The applicant was self-represented at the hearing of the appeal. During the hearing he sought leave to raise a further ground of appeal concerning the alleged incompetence of his counsel at trial, which was referred to in the principal judgment as “Proposed Ground 11”.
By Proposed Ground 11 the appellant sought to contend that defence counsel at the trial was incompetent in two respects:

he was often late; and

he “didn’t seem to be aware about the laws concerning LSD”, which the Court concluded meant that he did not object to evidence concerning the method of consumption of cardboard LSD or make the submission concerning liquid LSD referred to in addressing Ground 3 on the Notice of Appeal.

The Court reserved its decision on Mr Finch’s application to add proposed Ground 11 at the hearing of the appeal and indicated it would give the parties an opportunity to address the issue in writing after delivery of the principal judgment.
On 13 July 2016, in respect of Proposed Ground 11 the Court made the following order:

(4) Within 14 days the parties exchange with one another and file written submissions of no greater length than 10 pages each with the Registrar of the Court of Criminal Appeal on the subject of whether:
(a) having regard to these reasons, leave should be granted to amend the notice of appeal to include Proposed Ground 11; and
(b) if leave under paragraph 4(a) of these orders were granted, what orders the Court should make and whether it would be necessary or desirable to receive any further evidence or…

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 Finch v The Queen (No 2)

Details

AGLC: Finch v The Queen (No 2) [2016] NSWCCA 153
Case: [2016] NSWCCA 153
Decision Date: 04 August 2016

CaseChat Overview and Summary

Finch, the appellant, was convicted of drug-related offences and sentenced to imprisonment. The appellant sought to appeal his conviction and sentence, but the initial application for leave to appeal was dismissed. The appellant subsequently sought leave to add a further ground of appeal, which was the issue before the court. The legal issues that the court was required to decide were whether the additional ground of appeal related to a question of law of general public importance and whether leave should be granted to add the further ground of appeal.

The court held that the additional ground of appeal related to a question of law of general public importance, as it concerned the interpretation of a statutory provision that was of broader significance. The court also found that leave should be granted to add the further ground of appeal, as the appellant had demonstrated that there was a reasonable prospect that the appeal would succeed on the additional ground of appeal. The court emphasised the importance of ensuring that appeals are determined on their merits and that the interests of justice are served by allowing appeals that have a reasonable prospect of success.

The court ordered that leave be granted to add the further ground of appeal and that the appeal be heard before a full bench of the court. The court also ordered that the matter be listed for hearing at the earliest possible opportunity, given the urgency of the issues raised by the appeal. The court noted that the appeal raised important questions of law that were of general public importance and that it was in the interests of justice to allow the appeal to proceed.

Orders