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Hopkins v The Queen

Hopkins v The Queen

Case [2015] VSCA 174 19 June 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0244
DAVID WARWICK HOPKINS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 June 2015
DATE OF JUDGMENT:	19 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 174

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ELECTION TO HAVE APPLICATION FOR EXTENSION OF TIME FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY THE COURT OF APPEAL

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CRIMINAL LAW – Application for extension of time for leave to appeal against sentence – Murder – Sentence of life imprisonment with 30 years’ non-parole period – Whether head sentence or non-parole period manifestly excessive – Long delay in seeking extension of time – Whether proposed appeal would probably succeed – Application refused – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr M Fitzgerald	Marich Legal Pty Ltd
For the Crown	Mr B F Kissane QC	Ms V Anscombe, Solicitor for Public Prosecutions

ASHLEY JA:

Redlich JA will deliver the judgment of the Court.

REDLICH JA:

Following a plea of guilty, on 19 October 2011 the applicant was sentenced to life imprisonment with a non-parole period of 30 years for the murder of Nicole Millar.[1]
[1]R v Hopkins [2011] VSC 517 (‘Reasons’).

It was not until 17 November 2014 that the applicant applied for an extension of time in which to file a Notice of Appeal against both his conviction and sentence.

The application for an extension of time was refused by Deputy Registrar Tedhams on 16 December 2014.

On 7 January 2015, the applicant filed a notice of election to renew that application.

On 5 June 2015, the applicant abandoned his application for an extension of time in which to seek leave to appeal against conviction. Therefore, what is before the Court is only the renewal of his application for an extension of time within which to seek leave to appeal against sentence.

The applicant was in a de facto relationship with Nicole Millar from 2008. The two of them were heavy users of illicit drugs and there was a history of violence and anger directed at Ms Millar by the applicant. His abusive behaviour was observed on several occasions by both the family and co‑workers of Ms Millar, in particular in the weeks preceding her death.

On the morning of 1 June 2010, the two drove Ms Millar’s son, Kane, who lived with them, to school. CCTV footage then recorded the car driving into the car park of a Woolworths supermarket in Bayswater, where it remained for approximately four and a half minutes. It was next recorded reversing and driving into the adjoining service station, where it stopped in front of the petrol pump. The applicant got out of the car and began refuelling it.

The pump was on the passenger side of the car and Ms Millar remained seated on the driver’s side.

Shortly after beginning to fuel the car, the applicant removed the nozzle of the handpiece from the filling point, opened the…

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 Hopkins v The Queen

Details

AGLC: Hopkins v The Queen [2015] VSCA 174
Case: [2015] VSCA 174
Decision Date: 19 June 2015

CaseChat Overview and Summary

The case of Hopkins v The Queen involved the appellant, who had been convicted of murder and sentenced to life imprisonment with a non-parole period of 30 years. The appellant applied for an extension of time to seek leave to appeal against his sentence, arguing that both the head sentence of life imprisonment and the non-parole period were manifestly excessive. The application was made over a year after the time limit for seeking such leave had expired, and the appellant contended that the delay did not prejudice the respondent. The High Court of Australia was tasked with deciding whether the application should be granted, considering the delay, the likelihood of success of the proposed appeal, and whether there was any point of principle involved.

The legal issues before the court were whether the delay in seeking an extension of time was justified, whether the proposed appeal had a reasonable prospect of success, and whether there was any point of principle that warranted the court granting the extension. The court considered the lengthy delay in seeking the extension of time and the appellant's contention that the delay did not prejudice the respondent. The court also assessed the merits of the proposed appeal, considering whether the sentence was manifestly excessive, and whether there was any point of principle that would warrant the grant of leave to appeal.

The court found that the application for an extension of time should be refused. It held that the delay in seeking the extension of time was significant and not adequately justified. The court also found that the proposed appeal did not have a reasonable prospect of success, as the sentence imposed was not manifestly excessive. Furthermore, the court concluded that there was no point of principle that would warrant the grant of leave to appeal. The court emphasised the importance of adhering to the time limits for seeking leave to appeal and the need for applicants to demonstrate good reason for any delay in making such an application.

The final orders of the court were to refuse the application for an extension of time for leave to appeal against sentence. The court held that the appellant's application did not meet the criteria for an extension of time, and that the proposed appeal did not have a reasonable prospect of success. The court also found that there was no point of principle that would warrant the grant of leave to appeal, and that the delay in seeking the extension of time was not adequately justified.

Orders