Keenan v The Queen - [2020] VSCA 105

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0019

DAVID KEENAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 April 2020
DATE OF JUDGMENT:	5 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 105
JUDGMENT APPEALED FROM:	[2020] VCC 1462 (Judge Cannon)

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CRIMINAL LAW – Appeal – Application for extension of time to make application for leave to appeal against conviction – Applicant entered plea of guilty to offence of stalking under s 21A of Crimes Act 1958 and subsequently disputed facts in prosecution summary – Whether substantial miscarriage of justice because indictment invalid on basis it was not filed within time stipulated in s 163 of Criminal Procedure Act 2009; insufficient evidence to support a finding of guilt; abuse of process by prosecution (allegation of tainted evidence); or combination of those factors – No arguable grounds advanced – Application for extension of time refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent:	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA

NIALL JA:

The applicant seeks an extension of time in which to bring an application for leave to appeal against his conviction for a single charge of stalking. The conviction was entered on his plea of guilty. In order to succeed in any appeal against his conviction, the applicant needs to come within the principles that guide the Court where it is sought to set aside a conviction following a plea of guilty.[1]
[1]Gurappaji v The Queen [2018] VSCA 187.

For the reasons that follow, the applicant has no prospect of meeting that threshold. He must be held to his plea and there is no utility in giving him an extension of time to commence an application for leave to appeal.

The offence provision: stalking

It is convenient, at the outset, to observe the elements of the offence established by s 21A of the Crimes Act1958 (‘Crimes Act’). Section 21A(1) provides that a person must not stalk another person. Section 21A(2) provides that a person (the offender) stalks another person if the offender engages in a course of conduct which includes one or more of the forms of conduct specified in paragraphs (a) to (g), with the intention of causing physical or mental harm to the victim, including self-harm, or of arousing apprehension or fear in the victim for his or her own safety or that of any other person. The specified conduct includes contacting the victim by telephone or text message.[2]
[2]Crimes Act s 21A(2)(b).

The mental element is further amplified by s 21A(3), which provides that the offender also has the necessary intention to cause harm, if (a) the offender knows that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear;[3] or (b) the offender in all the particular circumstances ought to have understood that engaging…

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 Keenan v The Queen

Details

AGLC: David Keenan v The Queen [2020] VSCA 105
Case: [2020] VSCA 105
Decision Date: 5 May 2020

CaseChat Overview and Summary

Keenan was convicted of stalking and appealed against his conviction. The appeal hinged on the validity of the indictment and the sufficiency of the evidence, as well as allegations of an abuse of process by the prosecution. The court was asked to determine whether there were arguable grounds for the appeal based on these issues.

The applicant argued that the indictment was invalid because it was not filed within the stipulated time under section 163 of the Criminal Procedure Act 2009, and that there was insufficient evidence to support the conviction. Additionally, the applicant claimed that the prosecution had abused the process by presenting tainted evidence. The court had to assess whether these grounds were arguable and warranted an extension of time to apply for leave to appeal.

The court found that the applicant had not advanced any arguable grounds for the appeal. The applicant had entered a plea of guilty, which precluded him from challenging the validity of the indictment or the sufficiency of the evidence. The court also noted that the applicant had not provided any evidence to support the allegation of tainted evidence. Therefore, the application for an extension of time was refused.

The court's decision was based on the applicant's failure to demonstrate arguable grounds for the appeal. The court found that the applicant's claims were not supported by any evidence or legal argument. The applicant's plea of guilty further weakened his position, as it precluded him from challenging the validity of the indictment or the sufficiency of the evidence. Consequently, the application for an extension of time was denied, and the applicant's appeal against his conviction was dismissed.

Orders