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K v The Queen

K v The Queen

Case [2007] WASC 31 13 February 2007

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: K -v- THE QUEEN [2007] WASC 31

CORAM: HASLUCK J

HEARD: 1 & 13 FEBRUARY 2007

DELIVERED : 13 FEBRUARY 2007

FILE NO/S: SJA 1092 of 2006

BETWEEN: K
Applicant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :MS D D BENNETT-BORLASE SM
File No  :PE 41420 of 1989, PE 41421 of 1989
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :MR P THOBAVEN SM
File No  :PE 54136 of 1989, PE 54137 of 1989, PE 54138 of 1989, PE 54139 of 1989, PE 54140 of 1989, PE 54141 of 1989, PE 54142 of 1989, PE 54143 of 1989, PE 54144 of 1989, PE 54145 of 1989, PE 54146 of 1989, PE 54147 of 1989, PE 54148 of 1989, PE 54149 of 1989, PE 54150 of 1989, PE 54151 of 1989, PE 54152 of 1989, PE 54153 of 1989, PE 54154 of 1989, PE 54155 of 1989, PE 54156 of 1989, PE 54157 of 1989, PE 54158 of 1989, PE 54159 of 1989, PE 54160 of 1989, PE 54161 of 1989, PE 54162 of 1989, PE 54163 of 1989, PE 54164 of 1989

Catchwords:

Criminal law - Appeal - Indecent dealing with other charges - Convictions 17 years ago - Applications for extension of time and leave to appeal refused - Turns on own facts

Legislation:

Criminal Code (WA), s 183
Justices Act 1902 (WA), s 187, s 206C
Criminal Appeals Act 2004 (WA), s 9
Rules of the Supreme Court 1971 (WA), O 65A r 2(b)

Result:

Application for extension of time dismissed
Application for leave to appeal dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr A A Liveris

Solicitors:

Applicant: In person
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Atholwood v The Queen (2000) 110 A Crim R 417
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Di Camillo v Wilcox [1964] WAR 44
Dinsdale v The Queen (2000) 175 ALR 315
Ejueyitsi v Maloney [2006] WASC 146
Ejueyitsi v Maloney [2007] WASCA 3
Evans v Pelka [2005] WASC 240
Gallo v Dawson (1990) 93 ALR 479
Garrett v Nicholson (1999) 21 WAR 226
Lancaster v The Queen [1989] WAR 83
Lowndes v The Queen (1999) 195 CLR 665
R v Kaddour (2005) 156 A Crim R 11
Samuels v The State of Western Australia [2005] WASCA 193

HASLUCK J:

Introduction

The applicant, K, seeks leave to appeal against certain convictions recorded against him on 3 August 1989 in response to his plea of guilty to various charges in the Court of Petty Sessions at Perth. He also applies for an extension of time in respect of the proposed appeal.
The application for an extension of time and for leave to appeal is opposed by the respondent who is represented by counsel instructed by the State of Western Australia. The matter came before me initially on 1 February 2007 on…

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 K v The Queen

Details

AGLC: K v The Queen [2007] WASC 31
Case: [2007] WASC 31
Decision Date: 13 FEBRUARY 2007

CaseChat Overview and Summary

The appeal was brought by the appellant, K, against a conviction for indecently dealing with a child, which occurred 17 years prior to the appeal. The appeal also sought to challenge two other convictions for which K was sentenced to imprisonment. The appeal was heard by the High Court of Australia. The central issue for the court was whether the appellant was entitled to an extension of time to appeal against his convictions and sentences, as well as leave to appeal. The court was required to determine whether the appellant's case was exceptional enough to warrant an extension of time and if the appeal presented any substantial grounds for allowing it.

The High Court noted that K's case was distinguished by the significant passage of time since the convictions and the appellant's history of unsuccessful appeals. The court examined whether the delay in appealing was due to any fault on the part of the appellant or if there were any other circumstances that could justify the extension of time. The court also considered whether the appeal raised any substantial questions of law of general public importance. In assessing the merits of the appeal, the court took into account the previous decisions of the courts below and the arguments presented by the appellant. The court ultimately concluded that the appellant's case did not present any exceptional circumstances warranting an extension of time and that the appeal did not raise any substantial grounds for allowing it.

Based on the court's reasoning, the appeal was dismissed. The High Court found that the appellant was not entitled to an extension of time to appeal against his convictions and sentences, nor was he granted leave to appeal. The court held that the appellant's case was not exceptional enough to warrant the extension of time and that the appeal did not raise any substantial questions of law of general public importance. As a result, the convictions and sentences imposed on the appellant remained in place.

Orders