Kember v The Queen (No 2) - [2022] ACTCA 67

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…

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 Kember v The Queen (No 2)

Details

AGLC: Kember v The Queen (No 2) [2022] ACTCA 67
Case: [2022] ACTCA 67
Decision Date: 7 December 2022

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an application by the appellant, Kember, for leave to appeal out of time against his conviction. The appellant had previously pleaded guilty to certain offences.

The primary legal issues before the Court were whether to grant leave to appeal out of time and whether to permit the adduction of further evidence on the appeal. The Court also had to determine the proper procedural foundation for these applications.

Mossop J reasoned that the applications to adduce further evidence and for leave to appeal out of time were matters for the Court of Appeal to determine. The Court's role was to ensure the applications were placed on a proper procedural footing before considering their merits.

The Court of Appeal ordered that the applications be determined by the Court.

Orders

Orders of the court

See [12]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.