Kennedy v Bob

[2001] NTSC 36

Kennedy v Bob [2001] NTSC 36

PARTIES:GRANT KENNEDY

v

ANDREW BOB

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO:JA46 of 2001  (20013088)

DELIVERED:  18 May 2001

HEARING DATES:  27 April and 15 May 2001

JUDGMENT OF:  THOMAS J

CATCHWORDS:

CRIMINAL LAW – PROCEDURE
Application for extension of time to file notice of appeal – application granted
Justices Act 1928 (NT), s 165 and s 171(2)

CRIMINAL LAW – APPEAL
Appeal from Court of Summary Jurisdiction – appeal against conviction – respondent not the person who committed the offences – quash conviction

Traffic Act 1987 (NT); s 19(2), s 33(1)(a) and s 34(1)
Justices Act 1928 (NT) s 177(2)(c) and (d)

REPRESENTATION:

Counsel:

Appellant:N Rogers

Respondent:  J Condon

Solicitors:

Appellant:Office of the Director of Public Prosecutions

Respondent:  Central Australian Aboriginal Legal Aid Service

Judgment category classification:        C

Judgment ID Number:  tho200115

Number of pages:  5

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Kennedy v Bob [2001] NTSC 36
No. JA46/2001  (20013088)

BETWEEN:

GRANT KENNEDY

Appellant

AND:

ANDREW BOB

Respondent

CORAM:    THOMAS J

REASONS FOR JUDGMENT

(Delivered 18 May 2001)

1. This is an appeal brought by the Crown in respect of the following sentences imposed by the learned stipendiary magistrate in the Tennant Creek Court of Summary Jurisdiction on 6 February 2001.

2. On that date the learned stipendiary magistrate convicted and sentenced the respondent of the following offences committed on 29 July 2000.

   · One count of Drive CAB 80mg/100ml – under 150mg contrary to s 19(2) of the Traffic Act 1987 (NT) and sentenced to 120 hours community service.

   · One count of Drive Unregistered Motor Vehicle contrary to s 33(1)(a) of the Traffic Act and one count of Drive Uninsured Motor Vehicle sentenced to an aggregate fine of $1000.

   The respondent was also disqualified from driving for a period of two years from 2 July 2000.

3. The ground of appeal is:

   1.That the learned stipendiary magistrate erred in convicting the respondent of the three offences because the respondent was not the person who committed the three offences on 29 July 2000.

1. The appellant also sought an order for an extension of time to file the notice of appeal pursuant to s 165 of the Justices Act 1928 (NT).

1. The appeal argued by Dr Rogers on behalf of the Crown was not opposed by Ms Condon, counsel for the respondent, nor was there any opposition to the application for an extension of time to file the appeal.

2. Pursuant to s 171(2) of the Justices Act, I extended time for the filing of the notice of appeal to 4 April 2001.

3. The application for extension of time was supported by an affidavit of Dr Rogers sworn 4 April 2001.

4. I accept the matters set out in this affidavit.

5. Essentially this appeal has been brought by the Crown because solicitors for Mr Andrew Bob have not been able to make contact with him.

6. A summary of the facts as set out in the affidavit of Dr Rogers are as follows:

7. On 29 July 2000 a man named Leslie Pitjara Bob was charged with three offences namely, Count 1 Exceed .08, Count 2 Drive Unregistered Motor Vehicle, Count 3 Drive Uninsured Motor Vehicle.  These offences were alleged to have been committed at Tennant Creek.  Leslie Bob was bailed in the sum of $500 own recognisance to appear at Tennant Creek Court of Summary Jurisdiction on 12 September 2000.

8. On 12 September 2000, at Tennant Creek Court of Summary Jurisdiction there was no appearance of Leslie Bob.  A warrant was ordered to issue.

9. On 6 February 2001 the respondent, Andrew Bob, pleaded guilty to the three charges committed by Leslie Bob on 29 July 2000 at Tennant Creek.  On Count 1, the offence of Exceed .08, Andrew Bob was convicted and ordered to serve 120 hours of community service.  He was disqualified from holding a driver’s licence for two years to date from 2 July 2000.  On Count 2 and Count 3, Andrew Bob was convicted and fined an aggregate fine of $1000 with two Victim Impact Levies of $20.  In default five days imprisonment with six months to pay.

10. On 6 February 2001, the fingerprints of the respondent were taken at Tennant Creek Police Station.

11. Annexed to the affidavit of Dr Rogers is a statutory declaration of Geoffrey David Farncomb, fingerprint specialist attached to the Forensic Services Section, Northern Territory Police.  This statutory declaration sworn 12 March 2001, is annexure A to the affidavit of Dr Nanette Rogers sworn 4 April 2001.

12. At the resumption of proceedings in this matter on 15 May 2001, Dr Rogers tendered a further statutory declaration of Geoffrey David Farncomb sworn 30 March 2001.  Mr Farncomb provided details of the comparisons he made between the fingerprints obtained on 29 July 2000 at Tennant Creek from a man bearing the name Leslie Pitjara Bob with fingerprints taken at the Tennant Creek Police Station on 6 February 2001 in the name of Leslie Pitjara Bob.  The fingerprints taken on 6 February 2001 indicate that person to be the same person as the person identified on the Police Information Bureau files as Andrew Bob, date of birth being 1 August 1968.  These fingerprints differ from those taken at Tennant Creek Police Station on 29 July 2000 from a person bearing the name Leslie Pitjara Bob.  The fingerprints taken on 29 July 2000 are recorded at the Police Information Bureau as Leslie Pitjara Bob, date of birth 26 April 1969.  Mr Farncomb has concluded that the person whose fingerprints were obtained on 29 July 2000 is not the same person whose fingerprints were obtained at the Tennant Creek Police Station on 6 February 2001.

13. Accordingly, it would appear that on 6 February 2001 a plea of guilty was incorrectly entered by the respondent Andrew Bob to offences allegedly committed by Leslie Pitjara Bob on 29 July 2000 of drive exceed .08, drive unregistered and drive uninsured.

14. Pursuant to s 177(2)(c) of the Justices Act, I quash the conviction and sentence imposed in the Court of Summary Jurisdiction at Tennant Creek on 6 February 2001 in respect of the three offences alleged to have been committed by the respondent on 29 July 2000.

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