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Marsden v The Queen

Marsden v The Queen

Case [2002] FCAFC 229 12 August 2002

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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:

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
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.
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…

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 Marsden v The Queen

Details

AGLC: Marsden v The Queen [2002] FCAFC 229
Case: [2002] FCAFC 229
Decision Date: 12 AUGUST 2002

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

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.

Citations

AGLC Citation

Marsden v The Queen [2002] FCAFC 229

Most Recent Citation

Mees v Kemp [2004] FCA 366

Cases citing this decision · 11 of 11 shown

Atx16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 55 Para 21

…appeal: see Hunter Valley Developments at 348-350; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; Marsden v The Queen [2002] FCAFC 229 at [19]; Parker v The Queen [2002] FCAFC 133 at [17]. The test for the grant of leave to appeal from an interlocutory decision is that the decision i…
Kapp as substituted trustee for the Twin Trust v Aravanis as trustee of bankrupt estate of Kapp
[2021] FCA 116 Para 22

…appeal: see Hunter Valley Developments at 348-350; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; Marsden v The Queen [2002] FCAFC 229 at [19]; Parker v The Queen [2002] FCAFC 133 at [17]. The test for the grant of leave to appeal from an interlocutory decision is that the decision i…
Lee v Fair Work Commission
[2020] FCA 1204 Para 3

…The Court’s power to extend time is flexible and is designed to enable substantial justice to prevail over technical default: Marsden v R [2002] FCAFC 229 at [19]. The relevant factors to be considered by a Court in determining whether to grant an extension of time to appeal are well-established, namely: (1)whether…
ADN15 v Minister for Immigration & Border Protection
[2016] FCA 810 Para 1

…xtension of time in which to commence an appeal: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; Marsden v The Queen [2002] FCAFC 229 at [19]. The discretion is to be exercised having regard to: (1)the length of the delay; (2)the adequacy of any explanation for the delay; (3)any preju…
MZABP v Minister for Immigration and Border Protection
[2015] FCA 1391 Para 11

…isions of the Federal Court Rules: see for example SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; Marsden v The Queen [2002] FCAFC 229 at [19]. The principles are also regularly applied in the Administrative Appeals Tribunal and some of its state and territory counterparts.…
SZMVO v Minister for Immigration and Citizenship
[2011] FCA 875 Para 14

…In Marsden v The Queen [2002] FCAFC 229 the Full Court considered principles relevant to an application for extension of time in which to file and serve a notice of appeal. Their Honours observed: [18]…The principles which govern an application for an extension of time within which to file a notice of appeal are no…
Hawkins v Hawkins
[2009] ACTSC 148 Para 1

…sentence as the 2001 ACT Supreme Court sentence. He sought leave to appeal that sentence but leave was refused on 12 August 2002: Marsden v The Queen [2002] FCAFC 229.…
Davis v Conroy
[2005] ACTSC 8 Para 1

…h (1992) 106 ACTR 27 at 31-32 and, in particular, the passage from R v Tait and Bartley (1979) 24 ALR 473 cited by Miles CJ, and see also Marsden v R [2002] FCAFC 229 at [20]. However, the discretion is not entirely unconstrained. It can be exercised having regard to the three general matters specified in s 402(1)(…
Mees v Kemp
[2004] FCA 366 Para 19

…iples have been applied consistently in many cases since they were first laid down in Hunter Valley. Some recent examples include Marsden v The Queen [2002] FCAFC 229 at [16]; Minister for Immigration & Multicultural & Indigenous Affairs v Sochorova [2002] FCAFC 365 at [10]; Parker v The Queen [2002] FCAFC 133 at […
SCAK v Minister for Immigration
[2002] FMCA 327 Para 34

…It is clear since the decision of NAAV & Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 229 that the powers of the Tribunal have been widened such that only a failure to exercise its decision making powers in a bona fide manner now provides grounds for review. That case concerned the…
SDAY v Minister for Immigration
[2002] FMCA 326 Para 24

…It is clear since the decision of NAAV & MIMIA [2002] FCAFC 229 that the powers of the Tribunal have been widened such that only a failure to exercise its decision making powers in a bona fide manner now provides grounds for review. That case concerned the operation of Section 474 of the Migration Act 1958 (Cth). I…

View all 11 citing cases →

Cases cited in this decision · 8 of 8 shown

MZYDG v Minister for Immigration and Citizenship
[2009] FCA 1338 Para 19

…th an application to extend time were dealt with by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. In Jess v Scott (1986) 70 ALR 185 a Full Court of this Court accepted the correctness of his Honour’s analysis and observed that the expression “special reasons”, in O52 r15, was inte…
Parker v The Queen
[2002] FCAFC 133 Para 18

…application for an extension of time within which to file a notice of appeal are not in doubt. They were most recently set out in Parker v The Queen [2002] FCAFC 133. The Federal Court Rules provide that an appeal must be instituted within 21 days of the recording of the sentence imposed. However, they contain a p…
Dinsdale v The Queen
[2000] HCA 54 Para 22

…ing (1936) 55 CLR 499 at 505 and R v Tait and Bartley (1979) 46 FLR 386 at 388. They were recently restated by the High Court in Dinsdale v The Queen (2000) 202 CLR 321. Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears many similarities to the…
Jess v Scott
[1986] FCA 473

…ker 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…
Hunter Valley Developments Pty Ltd v Cohen
[1984] FCA 186 Para 19

…s required to be considered when dealing with an application to extend time were dealt with by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. In Jess v Scott (1986) 70 ALR 185 a Full Court of this Court accepted the correctness of his Honour’s analysis and observed that the expres…
R v Tait
[1936] HCA 62

…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, MADGWI…
House v R
[1936] HCA 40 Para 22

…upon which an appellate court will interfere with a sentence imposed by a sentencing judge are well established. They are set out in House v The King (1936) 55 CLR 499 at 505 and R v Tait and Bartley (1979) 46 FLR 386 at 388. They were recently restated by the High Court in Dinsdale v The Queen (2000) 202 CLR 321. B…
House v The King
63 WN 176 Para 22

…The principles upon which an appellate court will interfere with a sentence imposed by a sentencing judge are well established. They are set out in House v The King (1936) 55 CLR 499 at 505 and R v Tait and Bartley (1979) 46 FLR 386 at 388. They were recently restated by the High Court in Dinsdale v The Queen (2000) 202 C…

Legislation cited in this decision · 1

Crimes Act 1900 (ACT)
1 mention (from Para 3)

BETWEEN:	DOUGLAS JOHN MARSDEN APPLICANT
AND:	THE QUEEN RESPONDENT

BETWEEN:	JASON PAUL HAWKINS APPLICANT
AND:	THE QUEEN RESPONDENT

JUDGES:	MILES, MADGWICK AND WEINBERG JJ
DATE OF ORDER:	12 AUGUST 2002
WHERE MADE:	CANBERRA

JUDGES:	MILES, MADGWICK AND WEINBERG JJ
DATE:	12 AUGUST 2002
PLACE:	CANBERRA