Knight v The Queen - [2011] VSCA 138

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0829

PETER JAMES KNIGHT
	v
THE QUEEN

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JUDGES	NEAVE, MANDIE and TATE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	11 March 2011
DATE OF JUDGMENT	20 May 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 138
JUDGMENT APPEALED FROM	R v Peter James Knight [2002] VSC 498 (Teague J)

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CRIMINAL LAW – Procedure – Extension of time to lodge notice of application for leave to appeal against sentence – Applicant sentenced in November 2002 for the murder of a security guard at an abortion clinic – Sentenced to life imprisonment with a non-parole period of 23 years – Applicant did not seek to appeal against sentence until September 2008 – Whether the considerable extension of time sought by the applicant was justified having regard to the merits of the proposed appeal – R v O’Keefe [1979] VR 1, applied – Application refused.

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Appearances:	Counsel	Solicitors
The Applicant in person
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA
MANDIE JA
TATE JJA:

This was an application by Peter James Knight (‘the applicant’) for an extension of time within which to lodge a notice of application for leave to appeal against sentence.

Background to the application

On 23 April 2002, a Supreme Court jury found the applicant guilty of the murder of a security guard, Steven Rogers, at an abortion clinic in East Melbourne. On 19 November 2002, Teague J sentenced the applicant to life imprisonment with a non-parole period of 23 years. In his reasons for sentence, Teague J said:[1]

The murder of Steven Rogers was a very serious crime. It is to be treated the more seriously because of the context in which you carried out the murder. You were a loner on a personal crusade when you went to the clinic. Your crusade was to effect social change. Steven Rogers was just doing his duty. He got in the way of your crusade. He was one of those who was characterised by you as being in ‘the abortion racket’. … You went to the clinic with a plan for a massacre. You made Steven Rogers pay the supreme sacrifice because he got in the way.

[1]R v Knight [2002] VSC 498, [16].

The applicant was not represented by counsel at the trial, on the hearing of the plea in mitigation of sentence, nor at the hearing of the instant application.

Pursuant to s 572 of the Crimes Act 1958, which governs the proposed appeal, the applicant had 14 days following sentence within which to lodge his notice of application for leave to appeal against sentence. Section 572 empowers this Court to grant an extension of time beyond the stipulated 14 days in which an application for leave to appeal can be made.

The applicant waited until 23 September 2008 (almost six years after being sentenced) before lodging the instant application. The application was initially refused by a…

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 Knight v The Queen

Details

AGLC: Knight v The Queen [2011] VSCA 138
Case: [2011] VSCA 138
Decision Date: 20 May 2011

CaseChat Overview and Summary

Knight brought an application before the court seeking an extension of time to lodge a notice of application for leave to appeal against his sentence. Knight was sentenced in November 2002 for the murder of a security guard at an abortion clinic, and was sentenced to life imprisonment with a non-parole period of 23 years. He did not seek to appeal against his sentence until September 2008, over five years after his sentencing. The court was required to determine whether the considerable extension of time sought by Knight was justified, having regard to the merits of the proposed appeal.

The court considered the relevant legal principles in determining whether to grant the extension of time. The court noted that the primary consideration was whether the applicant had acted with due expedition in seeking to appeal against their sentence, and whether the delay in lodging the notice of application had caused any prejudice to the respondent. The court also noted that it should not lightly permit an applicant to have an extended period in which to seek leave to appeal, as it may undermine the finality of the sentencing process. The court applied the principles from R v O'Keefe, and held that the merits of the proposed appeal were relevant to the question of whether an extension of time should be granted.

In determining whether to grant the extension of time, the court considered the merits of the proposed appeal. The court found that the proposed appeal was unlikely to succeed, and that the delay in lodging the notice of application had caused prejudice to the respondent. The court held that the delay was inexcusable, and that there were no exceptional circumstances which warranted the grant of an extension of time. The application was therefore refused.

The court did not make any orders in relation to the extension of time sought by Knight.

Orders