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MAC v The Queen

MAC v The Queen

Case [2012] VSCA 19 16 February 2012

Interlocutory Orders

Statutory Interpretation

Limitation Periods

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0029
MAC	Applicant
v
THE QUEEN	Respondent

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JUDGES	NETTLE and BONGIORNO JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 February 2012
DATE OF JUDGMENT	16 February 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 19

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CRIMINAL LAW – Interlocutory appeal – Special hearing pursuant to s 371 of the Criminal Procedure Act 2009 – Time limits – Error made by Court in setting date for special hearing –Extension of time nunc pro tunc – Whether judge erred making order nunc pro tunc that time for special hearing be extended to date more than three months after committal – Whether exceptional circumstances and in interests of justice to extend time – Statutory interpretation – Purposive construction – Appeal dismissed – Emanuel v Australian Securities Commission (1997) 188 CLR 114 ; Hartley Poynton v Ali (2005) 11 VR 568 referred to – Words and phrases – Exceptional circumstances – Criminal Procedure Act 2009, s 371.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr P F Tehan QC with Mr D T Cash	Randles Cooper & Co Pty Ltd
For the Crown	Mr C W Beale	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

This is an application for leave to appeal against an interlocutory decision of a judge of the County Court to extend time for holding special hearings pursuant to s 371(2) of the Criminal Procedure Act 2009.

Section 371 provides:

371 Time limits for special hearing
(1) If a special hearing is to be held, it must be held—
(a)within 3 months after the day on which the accused is committed for trial; and

(b) before the court at which the indictment is filed.

(2)       The court may extend the time for holding a special hearing if, because of the existence of exceptional circumstances, the court considers that it is in the interests of justice to do so.
(3)       The court may extend time under subsection (2) before or after the time expires.
(4)       More than one extension of time may be granted under subsection (2).

The facts

The applicant stands charged with 12 charges of indecent act with a child under 16 and five charges of sexual penetration of a child under 16 committed between 2008 and 2011. At the time of the alleged offences, the applicant was between 23 and 25 years of age and the two complainants were between nine and 11 years of age and eight and 10 years of age respectively.

The applicant was committed for trial on 4 October 2011. Absent an extension of time, therefore, any special hearing was required to be held by 4 January 2012. In the events which occurred, however, the special hearings were held on 31 January 2012 without an extension of time first being sought or granted.

How that came about is problematical. But it appears to have been the result of a mistake. As the judge observed in her ruling, the time frame for the…

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 MAC v The Queen

Details

AGLC: MAC v The Queen [2012] VSCA 19
Case: [2012] VSCA 19
Decision Date: 16 February 2012

CaseChat Overview and Summary

The appellant, MAC, appealed against a decision of the Supreme Court of Victoria which had dismissed his application to extend the time for a special hearing. The hearing was required under section 371 of the Criminal Procedure Act 2009, which mandates a special hearing for certain criminal matters prior to trial. The appellant had been charged with various offences including serious violent crimes, and the dispute centred on whether the Supreme Court had the power to extend the time for the special hearing under the Act.

The court was required to determine whether the Supreme Court had the jurisdiction to extend the time for a special hearing beyond the statutory limit of three months. The legal issue was whether the Supreme Court could make an order nunc pro tunc to extend the time for the special hearing to a date more than three months after the committal. This involved a purposive construction of the relevant statutory provisions to ascertain whether there were "exceptional circumstances" justifying such an extension and whether it was in the interests of justice to grant the extension.

The Court found that the statutory framework did not permit an extension of time beyond the three-month limit unless there were exceptional circumstances and it was in the interests of justice to do so. The Court examined the relevant provisions and held that the statutory language did not support the extension of time beyond the prescribed period without clear legislative intent. The Court noted the importance of maintaining the integrity of statutory time limits and the need for clear evidence of exceptional circumstances. The appeal was dismissed as the appellant had not demonstrated that the extension was warranted under the Act.

No further orders were made by the Court.

Orders