Fitzgerald v Balchin

[2009] NTSC 29

Fitzgerald v Balchin [2009] NTSC 29

PARTIES:	FITZGERALD, Nikkita
v
BALCHIN, Viven Lynette
TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:	JA 22 of 2009 (20824299)
DELIVERED:	25 June 2009
HEARING DATES:	25 June 2009
JUDGMENT OF:	RILEY J
APPEAL FROM:	BRADLEY SM
CATCHWORDS:
REPRESENTATION:
Counsel:
Applicant:	J Franz
Respondent:	M Chalmers

Solicitors:

Applicant:	Northern Territory Legal Aid Commission
Respondent:	Office of the Director of Public Prosecutions

Judgment category classification: B

Judgment ID Number:	Ril0909
Number of pages:	4
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Fitzgerald v Balchin [2009] NTSC 29

No. JA 22 of 2009 (20824299)

BETWEEN:

NIKKITA FITZGERALD

Applicant:

AND:

VIVEN LYNNETTE BALCHIN

Respondent:

CORAM:  RILEY J

EX TEMPORE

REASONS FOR JUDGMENT

(Delivered 25 June 2009)

1. On 13 March 2009 the applicant was convicted in the Youth Justice Court of

   two counts of assault. She was sentenced to detention for a period of six

months on each count with the sentences made partially concurrent to
provide an effective sentence of eight months detention suspended after

14 days.

1. A Notice of Appeal against the sentence was filed on the basis that the

   learned sentencing Magistrate "erred in imposing a sentence that was not

   duly proportionate to the objective gravity of the youth’s involvement in the

   offence."

   A preliminary issue

2. The applicant was sentenced under the Youth Justice Act. The right of

appeal under that Act is governed by the provisions of the Justices Act.
Section 171(1) of the Justices Act provides that an appeal shall be instituted

by filing and serving a notice of appeal, by entering into a recognizance on

appeal and by payment of the appropriate fee. The appeal shall be instituted within one month from the time of the order appealed against. In the present case the applicant has not entered into a recognizance on appeal and it is the submission of the respondent that the appeal is not competent.

1. The requirements of s 171(1) of the Justices Act are conditions precedent to

   the institution of the appeal. A failure to comply with the conditions

   precedent deprives the court of jurisdiction unless the power of dispensation

under s 165 is exercised[1]. Whilst s 171(2) of the Act allows for an extension
of time by reason of remoteness from the seat of the Court of Appeal of the
original court that proviso has no application in the circumstances of this
matter.

1. Section 165 of the Justices Act permits the court to dispense with

compliance with any condition precedent to the right of appeal if, in the
opinion of the court, the applicant has done whatever is reasonably
practicable to comply with the requirements of the Act. The onus rests upon

the applicant to demonstrate that he or she has done whatever is reasonably

practicable in the circumstances and to, thereby, justify the exercise by the
court of the power to dispense with compliance. It is not necessary to show
that compliance was impossible but it must at least be demonstrated as

unreasonable to expect, in the particular circumstances, that exact
compliance should be insisted upon[2]. If such grounds are not shown and the
court does not provide relief the proceedings remain inchoate and do not
reach the stage of being an instituted appeal.

1. In circumstances where an applicant, who is in custody, has reasonably left

   the matter in the hands of an apparently competent solicitor and where the

   instructions were given in ample time for the solicitors to comply with the

   provisions of the Act it has been held that the applicant has, within the

meaning of s 165, done all that is reasonably practicable to comply with the
provisions of the Act[3].

1. At the relevant time the applicant was aged 16 years. Her solicitor obtained

   instructions to appeal from the applicant through her mother with whom the

   applicant was living at the time of sentencing. The Notice of Appeal was filed on 14 April 2009. On 21 April 2009 the solicitor requested that the

mother inform the applicant that she had to sign the recognizance to
prosecute the appeal. Thereafter the solicitor made numerous attempts to

contact the applicant directly by letter and telephone, through her mother and through her supervising officer at Casuarina Community Corrections. The solicitor left messages to be passed on to the applicant emphasising the

importance of her signing the recognizance and informing her that the

appeal could not proceed if the document was not signed. Notwithstanding
the diligent efforts of the solicitor the applicant did not attend to sign the

recognizance.

1. In the present case it appears that the applicant had been properly advised by

   her legal representative of the requirement to enter into a recognizance

   however she failed to do so. There is no explanation from the applicant as

   to why this may have been. She has not responded to the many requests for

   her to enter into the recognizance. She has shown no interest in pursuing

   the appeal. I bear in mind her personal circumstances in determining the

   outcome of the application. This is not a case where the applicant herself has done everything reasonably practicable to institute the appeal and the

   failure is attributable to her legal representative. She has done nothing to

   pursue an appeal. Any failure rests with the applicant.

2. The applicant has failed to demonstrate a basis upon which I should

   dispense with the requirement that the applicant enter into the prescribed

recognizance. The application to dispense with the requirement is
dismissed.

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[1] Federal Commissioner of Taxation v Arnhem Aircraft Engineering Pty Ltd (1987) 73 ALR 8.

[2] Edrick v Nayda [1994] NTSC 219.

[3] Nottle v Trenerry (1993) 89 NTR 7.