Kola v The Queen - [2021] HCASL 168

KOLA
v
THE QUEEN
[2021] HCASL 168
A22/2020

The applicant requires an extension of time in which to seek special leave to appeal from a judgment of the Court of Criminal Appeal of the Supreme Court of South Australia (Kourakis CJ, Stanley and Hughes JJ) which allowed the applicant's appeal against sentence on the basis, by majority (Stanley and Hughes JJ, Kourakis CJ dissenting), that he was not a "serious repeat offender" within the meaning of s 20B of the Criminal Law (Sentencing) Act 1988 (SA). The applicant's contention that the sentence imposed was manifestly excessive was unanimously rejected by the Court of Criminal Appeal. The Court of Criminal Appeal set aside the non-parole period imposed by the District Court of South Australia and imposed a new non‑parole period.
There is no point in granting an extension of time. The applicant identifies no question of principle which it would be in the interests of justice for this Court to consider and there is no reason to doubt the correctness of the Court of Criminal Appeal's judgment. An appeal to this Court would not enjoy sufficient prospects of success to warrant a grant of special leave.
On 12 May 2021, the applicant applied for leave to amend his application for special leave initially filed on 3 December 2020 to raise an additional proposed ground of appeal, namely that the decision of the Court of Criminal Appeal should be set aside because of an apprehension of bias. The applicant requires an extension of time to file the amended application, but it would be futile to grant the extension. The allegation is raised for the first time in this Court (rather than the original jurisdiction of the Court of Criminal Appeal) and on disputed questions of fact which this Court cannot determine.
Pursuant to r 41.08.1 of the High Court Rules 2004 (Cth), we direct the Registrar to draw up, sign and seal an order dismissing the applications.

M.M. Gordon J.J. Edelman

2 September 2021

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.

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Details

Case: [2021] HCASL 168
Decision Date

CaseChat Overview and Summary

The matter of Kola v The Queen involved an application by the applicant for an extension of time to seek special leave to appeal against a judgment of the Court of Criminal Appeal of the Supreme Court of South Australia. The original judgment had allowed the applicant's appeal against sentence, with a majority of the court finding that he was not a "serious repeat offender" under s 20B of the Criminal Law (Sentencing) Act 1988 (SA), but unanimously rejecting the applicant's contention that the sentence imposed was manifestly excessive. The Court of Criminal Appeal subsequently set aside the non-parole period imposed by the District Court of South Australia and imposed a new non-parole period.

The legal issues before the court were whether the applicant's application for an extension of time should be granted and whether an amended application for special leave, including an allegation of apprehended bias, should be considered. The court was required to determine if there was a question of principle worth considering or if the Court of Criminal Appeal's judgment was correct, and whether the allegation of apprehended bias was appropriately raised in the High Court.

The court found that there was no question of principle that would warrant an extension of time and that the Court of Criminal Appeal's judgment was correct. The court also found that the allegation of apprehended bias was not appropriately raised in the High Court, as it was a new allegation raised for the first time in the High Court on disputed questions of fact. Therefore, the application for an extension of time and the amended application for special leave were dismissed.

The final orders of the court were that the applications be dismissed, and the Registrar was directed to draw up, sign and seal an order dismissing the applications. This was done on 2 September 2021.

Orders