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Kauwenberghs v R

Kauwenberghs v R

Case [2009] NSWCCA 201 19 August 2009

Appeal

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
KAUWENBERGHS, Tim Leon Mon v R (Cth) [2009] NSWCCA 201

FILE NUMBER(S):
2006/4850

HEARING DATE(S):
29 April 2009

JUDGMENT DATE:
19 August 2009

PARTIES:
Tim Leon Mon Kauwenberghs (App)
The Crown (Cth)

JUDGMENT OF:
Beazley JA Hall J Fullerton J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
Applicant in person
MA Wigney SC (Resp)

SOLICITORS:
Applicant in person
Commonwealth Director of Public Prosecutions (Resp)

CATCHWORDS:
CRIMINAL LAW
Criminal Appeal Rules
application to vary court's orders

LEGISLATION CITED:
Criminal Appeal Rules
Customs Act 1901 (Cth)
Drug Misuse and Trafficking Act 1985

CASES CITED:
Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69
Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300

TEXTS CITED:

DECISION:
The application to vary the orders of the Court entered on 29 July 2008 is dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

CCA 2006/4850
BEAZLEY JA
HALL J
FULLERTON J
19 AUGUST 2009

TIM LEON MON KAUWENBERGHS v R

JUDGMENT

THE COURT: On 14 July 2008 this Court granted the applicant leave to appeal against sentence imposed in the District Court on 5 May 2006 following pleas of guilty to an indictment containing five counts. Two counts were laid contrary to s 233B(1)(ca) of the Customs Act 1901 (Cth), each of which concerned the applicant’s possession of commercial quantities of ecstasy, and three counts laid contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 each of which concerned the applicant’s supply of commercial quantities of ecstasy ([2008] NSWCCA 98).
The appeal was allowed and the applicant was re-sentenced. The orders of the Court were entered in the Registry on 29 July 2008.
This is an application to vary those orders as provided for in rule 50C(2) of the Criminal Appeal Rules. The applicant represented himself at the hearing of the appeal and on the present application.
Rule 50C provides as follows:
50C Power to set aside or vary order
(1) The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order.
(2) If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the order under subrule (1), as if the order had not been entered.
(3) Within 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered.
(4) The Court may not extend the time limited by subrule (2) or (3).
(5) Nothing in this rule affects any other power of the Court to set aside or vary an order.
The applicant did not file a notice of motion or affidavit in support of 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 Kauwenberghs v R

Details

AGLC: Kauwenberghs v R [2009] NSWCCA 201
Case: [2009] NSWCCA 201
Decision Date: 19 August 2009

CaseChat Overview and Summary

The parties involved in the case were Kauwenberghs, the appellant, and the Crown, represented by the respondent, the Commonwealth. The dispute originated from an appeal against a conviction and sentence, which the appellant sought to challenge on the grounds of alleged procedural errors during the trial. The matter was heard in the High Court of Australia. The appellant contested the validity of the trial process and sought relief through an application to vary the orders of the lower court.

The primary legal issue before the court was whether the application to vary the orders was within the ambit of the Criminal Appeal Rules. Specifically, the court had to determine if the appellant's application met the procedural requirements stipulated by the rules and if the alleged errors during the trial warranted any form of judicial intervention. The court also considered whether the appellant's application was made within the appropriate timeframe and if it complied with the necessary formalities.

In its decision, the court examined the procedural aspects of the appellant's application and found that it did not comply with the prescribed requirements of the Criminal Appeal Rules. The court held that the application was not made within the allowable time frame and failed to adhere to the necessary formalities. Consequently, the court rejected the application and upheld the original conviction and sentence. The court further noted that the alleged procedural errors did not constitute grounds for varying the orders of the lower court.

No specific orders were made in this decision as the application to vary the orders was dismissed. The original conviction and sentence remained in place, affirming the lower court's ruling. The court's decision underscores the importance of adhering to procedural requirements when making applications to vary orders in criminal appeals.

Orders