Kinkade v The Queen - [2018] NTCCA 4

CITATION:Kinkade v The Queen [2018] NTCCA 4

PARTIES: KINKADE, Nathan Gerrarde

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Northern Territory jurisdiction
FILE NO:CA 6 of 2017 (20818980)
DELIVERED:  13 March 2018
HEARING DATES:  1 March 2018
JUDGMENT OF:  Grant CJ, Blokland J and Mildren AJ
CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL
Applicant had previously prosecuted unsuccessful appeal against conviction – no right of appeal beyond that granted by the relevant statute – on proper examination of the statutory provision there is a right to only one appeal – applications dismissed.
Victims of Crime Assistance Act (NT) s 64
Criminal Code (NT) s 410, s 411

A v The Queen [2012] NTCCA 9, Burrell v The Queen (2008) 238 CLR 218, Director of Public Prosecutions (NT) v Moseley (2013) 275 FLR 140, Grierson v The King (1938) 60 CLR 431, R v Edwards (No 2) [1931] SASR 376, R v GAM (No 2) (2004) 9 VR 640, referred to.
D Mildren, The Appellate Jurisdiction of the Australian Courts (2015 Federation Press).
REPRESENTATION:
Counsel:
Applicant:Self-represented
Respondent:  MW Nathan SC
Solicitors:
Applicant:Self-represented
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:   B
Number of pages:  8

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Kinkade v The Queen [2018] NTCCA 4

No. CA 6 of 2017 (20818980)
BETWEEN:

NATHAN GERRARDE KINKADE

Applicant

AND:

THE QUEEN

Respondent

CORAM: GRANT CJ, BLOKLAND J and MILDREN AJ
REASONS FOR JUDGMENT
(Delivered 13 March 2018)
THE COURT:

The applicant seeks an extension of time within which to bring an appeal and leave to appeal against a conviction which was entered on 21 October 2011.
The applicant was charged with committing offences of a sexual nature against the daughter of his de facto partner over the period between 2002 and 2007. The matter originally ran to trial in August 2009. The applicant was represented by counsel during the course of the trial. The applicant was found guilty of a number of those offences.
The applicant brought an appeal against those convictions in which he represented himself. Counsel from the private bar appeared as amicus curiae. The appeal was heard in October 2010 and this court ordered a retrial.
By fresh indictment dated 3 December 2010 the applicant was charged with nine sexual offences against the juvenile complainant. The new trial proceeded in September and October 2011. Again, the applicant represented himself and counsel from the private bar appeared as amicus curiae for the purpose of cross-examining the complainant.
On 10 October 2011, the jury found the applicant guilty of counts 3 to 9 inclusive on the indictment. The jury acquitted the applicant on count 1 and was unable to reach a verdict in relation to count 2.
On 21 October 2011, the trial judge sentenced the applicant…

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 Kinkade v The Queen

Details

AGLC: Kinkade v The Queen [2018] NTCCA 4
Case: [2018] NTCCA 4
Decision Date: 13 March 2018

CaseChat Overview and Summary

The applicant, Kinkade, sought to appeal against his conviction. The appeal was heard by Grant CJ, Blokland J, and Mildren AJ. This was not the first appeal lodged by the applicant, as he had previously prosecuted an unsuccessful appeal against the same conviction.

The central legal issue before the court was whether the applicant had a statutory right to a second appeal against his conviction. The court was required to interpret the relevant statutory provision governing appeals to determine the scope of the right to appeal.

The court reasoned that the relevant statute provided for only one appeal. Upon proper examination of the statutory provision, it was determined that there was no further right of appeal available to the applicant beyond the one he had already exercised. Accordingly, the applications were dismissed.

Orders