Marsden v The Queen

Case [2002] FCAFC 229


FEDERAL COURT OF AUSTRALIA

Marsden v The Queen [2002] FCAFC 229

CRIMINAL LAW – applications for extension of time within which to appeal against sentence – applications filed five months after sentences imposed – whether “special reasons” for extending time – consideration of merits of proposed grounds of appeal – whether any question of miscarriage of justice – whether primary judged failed to give sufficient weight to prospects of rehabilitation – whether primary judge correctly applied principles of parity

Federal Court Rules, Order 52  r15

Parker v The Queen [2002] FCAFC 133, referred to
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, referred to
Jess v Scott (1986) 12 FCR 187, referred to
Zocchi v R (2000) 116 A Crim R 245, referred to
R v Williams (2000) 119 A Crim R 490, referred to
R v Lawrence [1980] 1 NSWLR 122, referred to
House v The King (1936) 55 CLR 499, referred to
R v Tait and Bartley (1979) 24 ALR 473, referred to
Dinsdale v The Queen (2000) 202 CLR 321, referred to

DOUGLAS JOHN MARSDEN v THE QUEEN
A10 of 2002

JASON PAUL HAWKINS v THE QUEEN
A13 of 2002

MILES, MADGWICK AND WEINBERG JJ
12 AUGUST 2002
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A10 of 2002

BETWEEN:

DOUGLAS JOHN MARSDEN
APPLICANT

AND:

THE QUEEN
RESPONDENT

A13 of 2002

BETWEEN:

JASON PAUL HAWKINS
APPLICANT

AND:

THE QUEEN
RESPONDENT

JUDGES:

MILES, MADGWICK AND WEINBERG JJ

DATE OF ORDER:

12 AUGUST 2002

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:

1.        Each application for an extension of time within which to appeal is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A10 of 2002

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

DOUGLAS JOHN MARSDEN
APPLICANT

AND:

THE QUEEN
RESPONDENT

A13 of 2002

BETWEEN:

JASON PAUL HAWKINS
APPLICANT

AND:

THE QUEEN
RESPONDENT

JUDGES:

MILES, MADGWICK AND WEINBERG JJ

DATE:

12 AUGUST 2002

PLACE:

CANBERRA

REASONS FOR JUDGMENT

THE COURT:

  1. Douglas John Marsden and Jason Paul Hawkins have each applied for an extension of time in which to file and serve a notice of appeal from sentences imposed upon them by Higgins J, in the Supreme Court of the Australian Capital Territory, on 5 October 2001.

    MR MARSDEN

  2. On 6 July 2001, Mr Marsden pleaded guilty in the Australian Capital Territory Magistrates Court to one count of theft, three counts of burglary (though one was described as “trespass with intent to steal”), and one count of possessing stolen property.  He was committed for sentence to the Supreme Court of the Australian Capital Territory.

  3. The offence of theft contrary to s 99 (now s 89) of the Crimes Act 1900 carries a maximum penalty of ten years’ imprisonment.  The offence of burglary contrary to s 102(1)(a) (now s…

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AGLC
Marsden v The Queen [2002] FCAFC 229
Case
[2002] FCAFC 229
Decision Date

CaseChat Overview and Summary

In the High Court of Australia, the case of Marsden v The Queen was adjudicated. The appellant, Marsden, sought an extension of time to appeal against his conviction and sentence, arguing various grounds including a delay in being charged by the police and the timing of the charges in relation to subsequent offences. The primary issue for the court was whether the appellant's rights were prejudiced by the timing of the charges and whether this warranted an extension of time for appeal.

The court examined whether the appellant had a legitimate basis to claim that he was prejudiced by the delay in being charged for earlier offences, which potentially allowed him to commit subsequent offences. The court found that there was no legal principle that would permit an offender to argue that the timing of charges should result in leniency due to the subsequent commission of further offences. The court held that the appellant's grievances did not constitute a valid ground for an extension of time to appeal. The reasoning underscored that the appellant's misfortune stemmed from his own actions rather than any procedural misstep by the police or the court.

In conclusion, the court found that none of the grounds of appeal presented by Marsden had merit. The court dismissed each of the applications for an extension of time to appeal, confirming that the appellant had not demonstrated any substantial basis for relief. The High Court's decision reinforced the principle that procedural delays, in and of themselves, do not typically warrant extensions unless they substantially prejudice the fairness of the trial or appeal process.

ORDERS:
1. Each application for an extension of time within which to appeal is dismissed.

Orders

Orders of the court

1. Each application for an extension of time within which to appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MILES, MADGWICK AND WEINBERG JJ
In our opinion, there is no merit in this ground. It is true that there is no explanation as to why the police did not charge Mr Hawkins with the offences committed in June and July 2000 until after he was arrested for the subsequent offences. Nonetheless, in that regard, he must be considered the author of his own misfortune. There is no principle which holds that a person who commits an offence can complain that, had the police arrested him for earlier offences, he would not have been in a position to commit the later offence, and is therefore to be accorded leniency. CONCLUSION In our opinion, there is no substance in any of the grounds of appeal set out in each of the draft notices of appeal. It follows that each application for an extension of time within which to appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: MILES, MADGWICK AND WEINBERG JJ

Full text does not contain this section.