Lemuelle Nelson v Michael Woodburn - [2011] ACTSC 151

LEMUELLE NELSON v MICHAEL WOODBURN
[2011] ACTSC 151 (11 August 2011)

JUDGMENT AND ORDER – amendment – criminal proceedings – order made based on incorrect submissions of the prosecution – power to amend – r 6906, Court Procedures Rules 2006 (ACT).

Magistrates Court Act 1930 (ACT), ss 216, 218
Crimes Act 1900 (ACT), s 309
Crimes (Sentencing) Act 2005 (ACT), ss 61, 63
Court Procedures Rules 2006 (ACT), r 6906

Hadba v The Queen (2004) 182 FLR 472
Ledson v Taylor (No. 2) (2010) 239 FLR 360
R v Gorman [2009] ACTSC 7
R v Cripps; Ex parte Muldoon [1984] QB 686
Keller & Anor v Bayside City Council [1996] 1 VR 356
Westsub Discounts Pty Ltd v IDAPS Australia (No 2) (1990) 94 ALR 310
Re Bickford Joinery Pty Ltd (1974) 7 SASR 438

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 88 of 2010

Judge: Refshauge J
Supreme Court of the ACT

Date: 11 August 2011

IN THE SUPREME COURT OF THE       )
  )          No. SCA 88 of 2010
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

LEMUELLE NELSON
Appellant

v
MICHAEL WOODBURN
Respondent

ORDER

Judge:  Refshauge J
Date:  11 August 2011
Place:  Canberra

THE COURT ORDERS THAT:

The order of the Honourable Justice Refshauge made on 8 August 2011 be set aside.

The period of Lemuelle Nelson’s sentence of imprisonment end on 5 October 2012.

The non-parole period of Lemuelle Nelson’s sentence of imprisonment end on 16 April 2011.

Mr Lemuelle Nelson appeared in the ACT Magistrates Court on 6 December 2010 when he was convicted of charges of dishonestly driving a motor vehicle, failing to appear in accordance with a bail undertaking, providing a false name to a police officer and fighting in a public place.

Chief Magistrate Burns, as his Honour then was, imposed sentences of imprisonment for a period totalling 17 months for the first two offences and a Good Behaviour Order for six months for the latter two offences.

His Honour directed that the sentence of imprisonment commence on 12 October 2010, presumably because that was the date on which Mr Nelson was first taken into custody on these offences, that being the date on which they were committed. His Honour set a non-parole period of eleven months from 12 October 2010.

Mr Nelson himself prepared a Notice of Appeal which he lodged with the Supreme Court on 13 December 2010. Under s 216 of the Magistrates Court Act 1930 (ACT), this stayed the sentence and Mr Nelson became a remand prisoner, no longer serving his sentence.

That Notice of Appeal, however, only referred to the first sentence, being that imposed on the charge of dishonestly driving a motor vehicle without consent, for which Mr Nelson was sentenced to 15 months’ imprisonment.

Mr Nelson was apparently granted Legal Aid and on 8 February 2011. He was permitted to file an Amended Notice of Appeal which also included an…

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 Lemuelle Nelson v Michael Woodburn

Details

AGLC: Lemuelle Nelson v Michael Woodburn [2011] ACTSC 151
Case: [2011] ACTSC 151
Decision Date: 11 August 2011

CaseChat Overview and Summary

Lemuelle Nelson and Michael Woodburn were involved in a legal dispute that reached the court. Nelson, the applicant, sought to amend his application for leave to appeal against his conviction and sentence. Woodburn, the respondent, opposed the application on the basis that it was an abuse of process. The case was heard in the Supreme Court of the Australian Capital Territory. The central legal issue was whether the court had the authority to amend an order that was made based on incorrect submissions by the prosecution. The applicant argued that the incorrect submissions led to an unjust outcome, and that the court should have the power to amend such orders to correct the injustice. The respondent contended that the applicant's application was an abuse of process and should be dismissed.

The court considered the relevant provisions of the Court Procedures Rules 2006 (ACT), particularly rule 6906, which outlines the circumstances in which an order may be amended. The court noted that while the power to amend orders is generally limited, there are exceptions where it is necessary to correct a manifest error or injustice. In this case, the court found that the prosecution's incorrect submissions had indeed led to an unjust outcome. The court concluded that it had the power to amend the order to rectify the injustice, despite the respondent's opposition. The court set aside the original order and allowed the applicant's application for leave to appeal.

Orders

Orders of the court

The order of the Honourable Justice Refshauge made on 8 August 2011 be set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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