Likumbo Makasa v The Queen - [2015] NSWCCA 259

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Likumbo Makasa v R [2015] NSWCCA 259
Hearing dates: 14 August 2015
Date of orders: 14 August 2015
Decision date: 14 August 2015
Before: Ward JA at [1];
Adams J at [32];
Beech-Jones J at [33]
Decision:
Application for an extension of time for the appeal against conviction is dismissed.

Catchwords: CRIMINAL LAW – appeal – application for extension of time to appeal against conviction – previous appeal against conviction on different count on same indictment – where the Court has no jurisdiction to hear and determine the appeal
Legislation Cited: Crimes Act 1900 (NSW), ss 61J, 66C(3)
Cases Cited: Morgan v R (No 2) [2013] NSWCCA 80
R v Grierson (1933) 50 WN (NSW) 71
R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R,R v Likumbo Makasa; Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga (2010) NSWCCA 228
Category: Procedural and other rulings
Parties: Likumbo Makasa (Applicant)
Regina (Respondent)
Representation:
Counsel:
No Appearance (Applicant)
Ms T Smith (Respondent)

Solicitors:
Director of Public Prosecutions (Respondent)

File Number(s): 2007/00014574022
Publication restriction: Nil

Judgment

WARD JA: I am of the view that the application for an extension of time to appeal from the conviction on the counts in question should be dismissed and I will indicate briefly my reasons for that view.
By notice dated 29 January 2013, Mr Makasa has sought an extension of time in which to appeal against his conviction on 19 August 2009 of three counts of sexual intercourse with a child above 14 years and under the age of 16 years contrary to s 66C(3) of the Crimes Act 1900 (NSW).
The proposed grounds of appeal broadly contend that Mr Makasa’s conviction on those three counts is unsafe and unsatisfactory and cannot be supported having regard to the evidence. They include the contention that the conviction was obtained by a combination of incompetence and deception and that as a result a miscarriage of justice has occurred. It is contended that there were material irregularities, the nature of which has not been identified in any submissions by Mr Makasa in the course of the trial.
Mr Makasa was represented at the trial. He is not represented on the present application. There has been no appearance by Mr Makasa this morning when the matter was listed for hearing of this application and the transcript will record the attempts that have been made to confirm that Mr Makasa is aware that the matter is listed for hearing on this day.

History of the present proceedings

The history of the proceedings has been outlined in two affidavits sworn by Mr George Galanos, a solicitor who is the managing lawyer of the CCA unit from the Office of the Director of Public Prosecutions. Those affidavits have been sworn on 16 May 2014 and 4 June 2014 respectively. Mr Galanos deposes to the procedural history of the matter from February 2013 through to 4 June 2014.…

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: [2015] NSWCCA 259
Decision Date: 14 August 2015

CaseChat Overview and Summary

The appellant was convicted on count 1 of the indictment of murder. He had been acquitted on count 2 of conspiracy to commit murder. He had been sentenced to imprisonment for 25 years, with a non-parole period of 19 years. The appellant sought to appeal against his conviction on count 1. He applied for an extension of time to lodge the appeal, given that he had previously appealed against his conviction on count 2 of the same indictment. The Court was required to determine whether it had jurisdiction to hear and determine the appeal against the conviction on count 1.

The Court found that it did not have jurisdiction to hear the appeal. The basis for the finding was that the appellant had previously appealed against the conviction on a different count of the same indictment. This had been held to be a final determination of the issues between the parties and the Court on that count. The Court concluded that it did not have the power to hear and determine the appeal against the conviction on count 1.

The Court noted that it had no discretion to extend the time for lodging the appeal. The statutory provisions governing the time for lodging an appeal were mandatory. The Court found that the appeal was therefore out of time, and that it had no jurisdiction to hear it. The appeal was dismissed.

The Court made no orders as to costs.

Orders