Kember v The Queen (No 2)
[2022] ACTCA 67
•7 December 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Kember v The Queen (No 2) |
Citation: | [2022] ACTCA 67 |
Hearing Date: | 7 December 2022 |
DecisionDate: | 7 December 2022 |
Before: | Mossop J |
Decision: | See [12] |
Catchwords: | APPEAL – APPLICATION IN PROCEEDING – Application to adduce further evidence – application for leave to appeal out of time against conviction – where appellant pleaded guilty to offences – matter to be put on proper procedural foundation – applications to be determined by the Court of Appeal |
Cases Cited: | Kember v The Queen [2022] ACTCA 51 R v Kember [2022] ACTSC 153 |
Parties: | Rhys Kember ( Appellant) The Queen ( Respondent) |
Representation: | Counsel Self-represented ( Appellant) J Nottle ( Respondent) |
| Solicitors Self-represented ( Appellant) Commonwealth Director of Public Prosecutions ( Respondent) | |
File Number: | ACTCA 38 of 2022 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: McCallum CJ Date of Decision: 27 June 2022 Case Title: R v Kember Citation: [2022] ACTSC 153 |
MOSSOP J:
Introduction
The appellant pleaded guilty to six federal offences which can be described as child pornography offences. He was sentenced in the Supreme Court by McCallum CJ to a total term of imprisonment of three years, which was to be suspended after having served eight months: R v Kember [2022] ACTSC 153. The sentence commenced on 25 June 2022 and will end on 24 June 2025. The eight months of full-time detention ends on 24 February 2023. The appeal as it currently stands asserts that the sentence imposed was manifestly excessive. An application for bail pending appeal was made but I refused that application on 6 October 2022, principally because the grounds of appeal had very poor prospects of success: Kember v The Queen [2022] ACTCA 51.
By application in proceeding lodged 24 November 2022, Mr Kember seeks the following orders:
1.Adduce fresh evidence.
2.Amend appeal to sentence & conviction.
3.Grounds for appeal:
· manifest excess;
· fresh evidence; and
· error of law.
The affidavit in support provides as follows:
1.I have fresh evidence. My dad’s Alzheimer’s has gotten worse. He has lost his accommodation. I am his only family connection and this is at risk. This is more significant than at sentence.
2.My partner is from overseas on a covid visa and her mental health has suffered since sentence due to no support, the worsening situation in Russia for her family due to the war, again with no support & AMC prison PC issues with excessive delays in communication amplify the suffering as she cannot even talk with me for support.
3.Under current convictions my partner has discovered that we will not be allowed to be married & reside in Australia due to partner visa/PR conditions, also I would not be able to live and marry in another country due to convictions, this will be extra curial punishment.
4.I have no record and I believe I have a reasonable argument to appeal sentence/conviction based on fresh evidence and very low range of my charges.
5.I have fresh evidence to show timestamps of social media communications that prove I could not have communicated during charged dates and that I had blocked victims accounts multiple times which this information only became available after sentence.
Annexed to the affidavit is a medical certificate dated 10 October 2022 relating to the offender’s partner and what appears to be an application form for the National Disability Insurance Scheme (NDIS) relating to the offender’s father.
There is a further application in proceeding filed 1 December 2022 seeking “leave to appeal conviction.” The intention of this application appears to be that it is an application for leave to appeal out of time. The grounds of the application are:
1.Fresh evidence is pertinent to my matter/appeal.
2.Error of law/fact.
3.Miscarriage of justice.
That application is supported by an affidavit affirmed on 30 November 2022, which provides as follows:
1.I have fresh evidence to show timestamps of social media communications that prove I could not have communicated during the charged dates and that I had blocked victims accounts multiple times. This information has only become available after sentence.
2.A miscarriage of justice would occur on the ground that the conviction is unreasonable or cannot be supported having regard to the evidence.
3.Question of law – change in legislation and definitions that are related to my charges.
The appellant is unrepresented. At the hearing of these applications he sought to rely upon additional documents in four categories:
(a)a printout from the Instagram social media site with some references to blocked accounts;
(b)additional documentation relating to the offender’s father and his applications under the NDIS;
(c)the transcript of sentencing proceedings; and
(d)a number of cases printed out from
The material provided in the first category was inadequate to explain how the identification of certain users as being blocked, and the dates when that is shown to have occurred, relates to the allegations against him and the proposed ground of appeal asserting a miscarriage of justice arising from those communications.
The application to permit him to appeal his conviction faces the obvious hurdle that he pleaded guilty to the offences. It is conceivable that he may be able to persuade the Court of Appeal that his conviction amounted to a miscarriage of justice, notwithstanding the plea of guilty. As I have indicated, the evidence put forward at the moment does not provide a clear indication of the argument that would ultimately be put.
Ground 2 set out in the affidavit of 30 November 2022 is obviously hopeless. An unreasonable verdict ground is not available as a ground of appeal in circumstances where there has been a guilty plea. The articulation for the first and third grounds in the affidavit dated 30 November 2022 is inadequate to allow any proper assessment of his prospects. However, I do not accept the submission put on behalf of the respondent that I should deal with the matter to finality now and refuse the extension of time in which to appeal his conviction. Rather, in my view, the appropriate course is to put the matter on a proper procedural foundation and then leave the determination of the applications to the Court of Appeal. That can be done by requiring the whole of the of the evidence said to be “fresh evidence” in ground 1 to be put on so that the nature of that material can be properly assessed.
The question of law identified in ground 3 will be a matter of submissions, but in order that the respondent have an opportunity to consider the legal position, an outline of submissions that would be put in support of that ground should be required to be served on the respondent. Once that is done, the two applications are matters that can be addressed by the court that ultimately hears the appeal.
The orders of the Court are:
1.The applicant must within 14 days file and serve an affidavit annexing the evidence referred to in paragraph 1 of the affidavit of Rhys Kember affirmed 30 November 2022.
2.The applicant must within 14 days file and serve an outline of submissions limited to not more than five pages that would be made if leave was granted to raise the question of law referred to in paragraph 3 of the affidavit of Rhys Kember affirmed 30 November 2022.
3.The application in proceeding filed 24 November 2022 and the application in proceeding filed 1 December 2022 are stood over to the hearing of the appeal.
Note: The making of these orders and the subsequent filing of material in accordance with these orders should not prevent the settlement of the appeal index or the listing of the matter for hearing.
| I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 23 December 2022 |
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