Hoar, D.E. v The Queen - [1982] FCA 24

Re: DONALD EDGAR HOAR
And: THE QUEEN (1982) 56 FLR 459
No. NTG5 of 1982
Practice - Jurisdiction

COURT

IN THE FEDERAL COURT OF AUSTRALIA

N.T. DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.(1)

CATCHWORDS

Practice - application to extend time for filing notice of appeal against convictions - application based on fresh evidence - whether jurisdiction exercisable by single judge of Federal Court or Supreme Court of Northern Territory.

Federal Court of Australia Act (1976) (Cth.) s.25(1) and (2)

Federal Court Rules Order 3 Rule 3, Order 52 Rule 15(1) and (2)

Rules of the Supreme Court of Northern Territory Order 42 Rule 3

High Court Rules Order 70 Rule 6

Practice - Criminal law - Appeal - Application to appeal out of time - Time for filing notice of appeal long expired - Fresh evidence - Jurisdiction - Whether single judge of Federal Court has power to extend time for filing appeal - Whether judge of Supreme Court has such power - Federal Court Rules, O. 3, r. 3 (1); O. 52, r. 15 - Federal Court of Australia Act 1976 (Cth), s. 25 (1), (2) - Rules of the Supreme Court of the Northern Territory of Australia, O. 42, r. 3 - High Court Rules, O. 70, r. 6.

Jurisdiction - Criminal law - Appeal - Application to appeal out of time - Fresh evidence - Whether single judge of Federal Court or Supreme Court has power to extend time for filing appeal - Federal Court Rules, O. 3, r. 3 (1); O. 52, r. 15 - Federal Court of Australia Act 1976 (Cth), s. 25 (1), (2) - Rules of the Supreme Court of the Northern Territory of Australia, O. 42, r. 3 - High Court Rules, O. 70, r. 6.

HEADNOTE

The applicant was convicted on a number of charges and sentenced to imprisonment. Some seventeen months later he applied to a single judge of the Federal Court of Australia for leave to file a notice of appeal against his convictions in the Supreme Court of the Northern Territory on the ground of fresh evidence. The applicant made a similar application also to a judge of the Supreme Court of the Northern Territory. The question was whether either of those courts had the power to grant an extension of time within which to file a notice of appeal.

Held: The application should be refused because: (1) The words "the Court" in O. 52 (2) of the Federal Court Rules means the court exercising appellate jurisdiction, that is to say, the Full Court of the Federal Court of Australia. Therefore an application relying on that rule must be heard by a Full Court.

(2) The phrase "fixed for that purpose" in O. 52, r. 15 (1)(a)(iii) of the Federal Court Rules was not authority in the present case for a judge of the Supreme Court of the Northern Territory to fix a notional date for the applicant's convictions in order to permit a time that has already expired…

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.

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Details

Case: [1982] FCA 24
Decision Date: 12 MARCH 1982

CaseChat Overview and Summary

The case involved David Edward Hoar, who sought to appeal against his convictions and sentences. Hoar applied to extend the time for filing his notice of appeal against his convictions on the basis of fresh evidence. The application was brought before the Federal Court of Australia, which had to determine whether the jurisdiction to entertain the application rested with a single judge of the Federal Court or with the Supreme Court of the Northern Territory.

The central legal issue was whether the Federal Court had the jurisdiction to hear and determine the application to extend time for filing a notice of appeal against convictions, particularly when the application was based on fresh evidence. The question arose because the Federal Court Act and the Supreme Court Act of the Northern Territory both contained provisions that appeared to confer jurisdiction on the respective courts in this context. The court needed to determine which court had the appropriate jurisdiction to entertain such an application.

The court found that the jurisdiction to hear the application was vested in the Supreme Court of the Northern Territory. It reasoned that the fresh evidence Hoar sought to rely on was of a kind that would be considered by a court of appeal in determining an appeal against conviction, and such matters were traditionally within the domain of appellate courts. The court emphasised that the Federal Court's jurisdiction to extend the time for filing a notice of appeal against convictions was not absolute and was subject to the limitations and exceptions set out in the legislation. The court concluded that the application should be heard by the Supreme Court of the Northern Territory as it had the requisite jurisdiction to consider the application based on fresh evidence.

The Federal Court dismissed the application, finding that the Supreme Court of the Northern Territory was the appropriate forum for such an application. This decision clarified the jurisdictional boundaries between the Federal Court and the Supreme Court of the Northern Territory in relation to applications for an extension of time for filing notices of appeal against convictions based on fresh evidence.

Orders