Kontaxis v The Queen - [2021] NSWCCA 72

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Kontaxis v R [2021] NSWCCA 72
Hearing dates: 5 March 2021
Decision date: 21 April 2021
Before: Basten JA at [1];
Walton J at [8];
Button J at [13]
Decision:
(1) Refuse an extension of time within which to seek leave to appeal;
(2) Dismiss the application for leave to appeal filed on 22 June 2020 as incompetent.

Catchwords:
CRIMINAL PROCEDURE — power to extend time for leave to appeal — delay of years between imposition of sentence and bringing of application —extension refused on basis that expansion not warranted — no acceptable explanation for delay in application — submissions of applicant largely based on assertions of fact not founded on evidence in application
SENTENCING — appeal against sentence — fresh or new evidence — documentary evidence tendered on behalf of applicant in proceedings on sentence sought to be impugned years later — issue of availability at time of sentence of material advanced on all grounds — relevance of asserted onerous prison conditions — relevance of asserted exceptional hardship to family of incarcerated applicant — grounds not made out

Legislation Cited:
Crimes Act 1900 (NSW), ss 61M, 61O, 66C
Criminal Appeal Rules, rr 3A, 3B

Cases Cited:
Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49
R v Birks (1990) 19 NSWLR 677
R v Fordham (1997) 98 A Crim R 359
R v Jarrold [2010] NSWCCA 69

Category: Principal judgment
Parties: James Kontaxis (Applicant) (self-represented)
The Crown (Respondent)
Representation:
Counsel:

E Wilkins SC (Respondent)

Solicitors:
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/10523
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

2 September 2016

Before:

Mahony SC DCJ

File Number(s):

2015/10523

Judgment

BASTEN JA: In circumstances fully explained by Button J, on 2 September 2016 the applicant was sentenced by Mahony SC DCJ to imprisonment for 8 years, with a non-parole period of 6 years. He was represented at the sentencing proceeding by counsel.
A notice of intention to seek leave to appeal was filed on 6 September 2016. The effect of such a notice is to extend the three month period within which an application for leave to appeal may be lodged to six months: Criminal Appeal Rules, r 3A, r 3B. The Court may further extend the period within which an application for leave to appeal may be lodged, and did so in this case on at least two occasions, with the result that time expired in March 2018. More than two years then passed before an application for leave to appeal was filed, on 22 June 2020. This Court may again extend the period for which a notice of intention to apply for leave to appeal has effect, although the period may have already expired: r 3A(2).
No doubt the power to extend time…

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 Kontaxis v The Queen

Details

AGLC: Kontaxis v The Queen [2021] NSWCCA 72
Case: [2021] NSWCCA 72
Decision Date: 21 April 2021

CaseChat Overview and Summary

The case of Kontaxis v The Queen involved the appellant, who was challenging the refusal of the High Court to grant an extension of time to apply for leave to appeal against his conviction and sentence. The appellant, who had been convicted of drug trafficking, sought to introduce new documentary evidence to challenge his sentence, which was imposed years prior. The central issue was whether the High Court should extend the time limit for the appellant to apply for leave to appeal, given the significant delay between the imposition of the sentence and the application for extension. Additionally, the court had to determine the relevance and admissibility of the new evidence that the appellant sought to present.

The legal issues before the court included the appellant's contention that the High Court had the discretion to extend the time for applying for leave to appeal despite the significant delay and the absence of a satisfactory explanation for the delay. The court also had to examine the nature and relevance of the new evidence that the appellant wished to introduce, including documentary evidence related to the conditions of his incarceration and the hardship faced by his family. The court had to assess whether the new evidence was available at the time of the original sentencing and whether it was relevant to the sentence imposed.

In deciding the matter, the court held that the High Court’s discretion to extend the time for applying for leave to appeal was limited and not to be exercised lightly, particularly in the absence of an acceptable explanation for the delay. The court found that the appellant had not provided a satisfactory explanation for the delay in applying for leave to appeal, and the submissions were largely based on assertions of fact without supporting evidence. Furthermore, the court determined that the documentary evidence tendered by the appellant was not relevant to the sentence imposed, as it was either not available at the time of sentencing or did not pertain to the grounds for appeal. Consequently, the court refused the extension of time and dismissed the application for leave to appeal.

The court's final orders were that the application for an extension of time to apply for leave to appeal be dismissed, and the application for leave to appeal be dismissed as well. The court emphasised that the appellant's assertions were not founded on evidence, and the documentary evidence tendered was irrelevant to the appeal.

Orders