Kevin O'Rafferty v The Queen

[2015] HCASL 134

KEVIN O'RAFFERTY

v

THE QUEEN

[2015] HCASL 134
C2/2015

1. The applicant was convicted of one count of sexual intercourse without consent.  The Court of Appeal of the Supreme Court of the Australian Capital Territory quashed the applicant's conviction and ordered a new trial by determining one ground of the applicant's appeal to that Court.  The Court of Appeal did not consider the applicant's other grounds of appeal including a ground which, if determined in the applicant's favour, would have led to the applicant's acquittal.  The applicant applied to the Court of Appeal to re-open the appeal to deal with that appeal ground.  The Court of Appeal concluded that it could not re-open the appeal in the absence of any explicit jurisdiction to do so.

2. The applicant applies for special leave to appeal to this Court, and seeks orders allowing the appeal, quashing the order for a new trial and remitting the matter to the Court of Appeal for its determination.  The respondent does not dispute that the matter should be remitted to be determined by the Court of Appeal and does not argue against the proposition that such a course is in the interests of justice.  Our consideration of the application leads us to conclude that that course is appropriate.  However, since the composition of the Court of Appeal of the Australian Capital Territory on remitter is a matter for that Court, the order for remittal will not be made in the terms proposed by the respondent.

3. The applicant requires an enlargement of time for the filing of his application for special leave to appeal to this Court, which we grant under r 4.02 of the High Court Rules 2004 (Cth).

4. Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order granting the application for special leave to appeal, treating the appeal as instituted and heard instanter, and ordering that paragraph four of the orders of the Court of Appeal of the Supreme Court of the Australian Capital Territory made on 21 August 2014 be set aside and that the matter be remitted to that Court. 

S.M. Kiefel
13 August 2015 V.M. Bell S.J. Gageler