Keen v The Queen - [2000] FCA 940

FEDERAL COURT OF AUSTRALIA
Keen v The Queen [2000] FCA 940
CRIMINAL LAW – appeal – application for extension of time in which to appeal against severity of sentences – date of commencement of sentence – delay due to misunderstanding as to commencement of sentence and incarceration – extension granted.
CRIMINAL LAW – appeal – effect of s 451(1) and 441A of Crimes Act 1900 (ACT) – effect of date of commencement of sentence – need for back-dating of sentence or acknowledgement that time spent in custody in relation to the offence has been taken into account.
Crimes Act 1900 (ACT), s 429, s 441A, s 451(1)
PHILLIP JOHN KEEN v THE QUEEN
A 81 OF 1999
MILES, MADGWICK and WEINBERG JJ
CANBERRA
12 JULY 2000

IN THE FEDERAL COURT OF AUSTRALIA

CANBERRA DISTRICT REGISTRY

A 81 OF 1999

BETWEEN:

PHILLIP JOHN KEEN
Appellant

AND:

THE QUEEN
Respondent

JUDGES:

MILES, MADGWICK and WEINBERG JJ

DATE OF ORDER:

12 JULY 2000

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:
1.The application for extension of time be granted.
2.The hearing of the application be treated as the hearing of the appeal.
3.The appeal be allowed.
4.The judgment of the Supreme Court be set aside.
5.The sentence in the Magistrates Court be varied to the extent that it commence on 27 January 1999.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

CANBERRA DISTRICT REGISTRY

A 81 OF 1999

BETWEEN:

PHILLIP JOHN KEEN
Appellant

AND:

THE QUEEN
Respondent

JUDGES:

MILES, MADGWICK and WEINBERG JJ

DATE:

12 JULY 2000

PLACE:

CANBERRA

REASONS FOR JUDGMENT
THE COURT:

On 11 May 2000 the Court granted an extension of time in which to appeal against a judgment of the Supreme Court of the Australian Capital Territory on 6 September 1999 dismissing an appeal against the severity of sentences imposed on the appellant by the Australian Capital Territory Magistrates Court on 14 May 1999. The Court also allowed the appeal to the extent that the sentence imposed on a charge of unlawfully taking and using a motor vehicle was ordered to commence on 27 January 1999.
At the time of the hearing of the application and the appeal, the applicant was serving the sentences imposed upon him. He had previously informed the District Registrar indicating that he did not wish to be present for the hearing of the application and that he was content for the Court to consider the application on the material before it.
The first application for an extension of time is dated 11 October 1999. The second application for an extension of time is dated 20 October 1999 and is supported by affidavits sworn 20 October and 3 December 1999. The major reason given for the applicant’s failure to lodge an appeal within time was that he was in prison at the Goulburn Correctional Centre following the sentences and that, despite efforts on his part, the District Registry did not accept his…

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 Keen v The Queen

Details

AGLC: Keen v The Queen [2000] FCA 940
Case: [2000] FCA 940
Decision Date: 12 JULY 2000

CaseChat Overview and Summary

The case of Keen v The Queen involved an appeal against a decision of the Supreme Court that had affirmed a conviction and sentence imposed by the Magistrates Court. The legal dispute centred on the timing and procedural correctness of the appeal process, specifically whether the appellant, Keen, had the right to extend the time limit for lodging his appeal beyond the statutory deadline. The appeal was heard in the higher appellate court where the issues of procedural fairness, statutory interpretation, and the inherent jurisdiction of the court to manage its own processes were addressed.

The primary legal issues before the court were whether the appellant's application for an extension of time to lodge his appeal was valid and whether the court had the discretion to allow such an extension under the relevant legislation. The court also had to consider whether the appeal should proceed on its merits despite the procedural delay and whether the sentence imposed by the Magistrates Court was appropriate in the circumstances.

The court found that the appellant's application for an extension of time was made within a reasonable period after the expiration of the statutory deadline and that the appellant had acted with due diligence. The court emphasised the importance of procedural fairness and the need to balance the statutory requirements with the equitable treatment of litigants. The court held that it had the inherent jurisdiction to grant an extension of time in appropriate circumstances, and in this case, the appellant's application was meritorious. Consequently, the court allowed the appeal, set aside the judgment of the Supreme Court, and varied the sentence of the Magistrates Court to commence on the specified date.

Orders

Orders of the court

1. The application for extension of time be granted.

2. The hearing of the application be treated as the hearing of the appeal.

3. The appeal be allowed.

4. The judgment of the Supreme Court be set aside.

5. The sentence in the Magistrates Court be varied to the extent that it commence on 27 January 1999.

Note:

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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IN THE FEDERAL COURT OF AUSTRALIA
CANBERRA DISTRICT REGISTRY	A 81 OF 1999

BETWEEN:	PHILLIP JOHN KEEN Appellant
AND:	THE QUEEN Respondent
JUDGES:		MILES, MADGWICK and WEINBERG JJ
DATE OF ORDER:		12 JULY 2000
WHERE MADE:		CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
CANBERRA DISTRICT REGISTRY	A 81 OF 1999

JUDGES:	MILES, MADGWICK and WEINBERG JJ
DATE:	12 JULY 2000
PLACE:	CANBERRA