Greenwood v Irving - [2018] ACTSC 310

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Greenwood v Irving
Citation:	[2018] ACTSC 310
Hearing Date(s):	28 September, 19 October 2018
DecisionDate:	7 November 2018
Before:	McWilliam AsJ
Decision:	See [47]
Catchwords:	APPEALS – PRACTICE & PROCEDURE – application to dismiss appeal from a magistrate for want of prosecution – where orders stayed pending the determination of appeal – where delay of seven years since a step last taken in the appeal – whether unjust for appellant to serve sentence now – appeal dismissed
Legislation Cited:	Court Procedures Act 2004 (ACT) Magistrates Court Act 1930 (ACT) s 216 Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 4C, 15, 15AA, 19, 41 Victims of Crimes Act 1994 (ACT) s 24 Victims of Crimes (Financial Assistance) Act 1983 (ACT) s 68 Court Procedures Rules 2006 (ACT) rr 5191, 5130
Cases Cited:	Allen v Sir Alfred McAlpine & SonsLtd [1968] 2 QB 229 Barton v R (1980) 147 CLR 75 Blunden v The Commonwealth [2014] ACTSC 123 Commonwealth v Australasian Correctional Services Pty Ltd [2013] ACTSC 37 Davis Samuel Pty Ltd v Commonwealth of Australia [2016] ACTCA Ferguson v Smorhun [2017] ACTSC 192 Fitzpatrick v Batger & Co Ltd[1967] 2 All ER 657 Guiseppe Emanuele v Allan John Dau (Unreported, Supreme Court of the Australian Capital Territory, Higgins J, 16 March 1995) Jago v District Court of New South Wales (1989) 168 CLR 23 Muto v Faul [1980] VR 26 Snaidero v Crampton and O'Sullivan [2014] ACTSC 262
Parties:	Luke Greenwood (Appellant) Aidan Barry Irving (Respondent)
Representation:	Counsel Ms J Keys (Appellant) Mr M Howe (Respondent)
Solicitors ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 40 of 2011

By application filed 31 August 2018, the respondent in these proceedings seeks orders under r 5191 of the Court Procedures Rules 2006 (ACT) (Rules), that an appeal commenced in this Court seven years ago be dismissed for want of prosecution.

Procedural history

On 18 April 2011, the appellant was convicted in the Magistrates Court of the Australian Capital Territory of two charges, which may be described informally as driving a motor vehicle through a red traffic light and driving with a blood alcohol concentration over the prescribed limit.

The appellant was fined $250 for each conviction and had his licence disqualified for four months. He was also required to pay a levy of $50.00 under s 68(1) of the Victims of Crimes (Financial Assistance) Act 1983 (ACT) and victims services levies amounting to $20.00 under s 24(2) of the Victims of Crimes Act 1994 (ACT).

On 20 April 2011, the appellant lodged a notice of appeal against the decision of the court below. As a result of appeal proceedings being commenced, the enforcement of the orders was stayed, pursuant to s 216 of the Magistrates Court Act 1930 (ACT).

The record of this Court reveals that on 23 June 2011, the appellant’s counsel and a representative for the respondent appeared before the Deputy Registrar. The matter…

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 Greenwood v Irving

Details

AGLC: Greenwood v Irving [2018] ACTSC 310
Case: [2018] ACTSC 310
Decision Date: 7 November 2018

CaseChat Overview and Summary

The case of Greenwood v Irving involved an appeal against the refusal of an application to dismiss the appellant's appeal from a sentence imposed by a magistrate. The appellant was convicted of charges including supplying a dangerous drug and was sentenced to imprisonment. The appeal was stayed pending the outcome of the appeal, and seven years elapsed before any further action was taken. The appellant sought to have the appeal dismissed on the grounds of want of prosecution, arguing it was unjust for him to serve the sentence now.

The primary legal issue the court had to address was whether the seven-year delay in taking a step in the appeal constituted a want of prosecution. The court had to consider whether it was unjust to require the appellant to serve the sentence after such a significant delay and if the appellant had a reasonable excuse for the delay. The court also needed to determine whether the appellant had demonstrated a bona fide intention to prosecute the appeal.

The court found that the appellant's seven-year delay in taking a step in the appeal was significant and unjust. The appellant did not provide a reasonable excuse for the delay nor demonstrate a bona fide intention to prosecute the appeal. The court held that the appeal was effectively abandoned and dismissed the appeal. The court emphasised that significant delays in the prosecution of appeals could not be countenanced, particularly when the delay results in potential injustice to the respondent. The court concluded that it was appropriate to dismiss the appeal due to the appellant's lack of action and intention to pursue the appeal.

Orders

Orders of the court

See [47]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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