Marsh v The Queen

[2017] ACTCA 54

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Marsh v The Queen

Citation:

[2017] ACTCA 54

Hearing Date:

15 November 2017

DecisionDate:

15 November 2017

Before:

Elkaim J

Decision:

See paragraphs [14] and [15]  

Catchwords:

APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – Leave to appeal – application for leave to appeal out of time.

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 5332

Cases Cited:

Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56; 303 FLR 49

Parties:

Garry Leslie Marsh (Applicant)

The Queen (Respondent)

Representation:

Counsel

Mr G Walsh (Applicant)

Ms K McCann (Respondent)

Solicitors

Greg Walsh & Co Solicitors (Applicant)

Office of the ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 49 of 2017

Decision under appeal: 

Court/Tribunal:             ACT Supreme Court

Before:  Burns J

Date of Decision:         25 August 2017

Case Title:  R v Marsh

Court File Number:       SCC 4 of 2016

ELKAIM J:

1. On 13 October 2017, the applicant filed an application for leave to appeal out of time, pursuant to r 5332 of the Court Procedures Rules 2006 (ACT).

1. The respondent does not object to the application. Notwithstanding the respondent’s attitude, but acknowledging that it is an important factor in the exercise of the Court’s discretion, the Court must form its own view of the application.

1. The background to this matter is as follows. On 25 August 2017, the applicant was convicted of a number of sexual offences following a trial before Burns J and a jury.

1. On 15 September 2017, the applicant consulted a solicitor, Mr Walsh, of Greg Walsh & Co Solicitors. Mr Walsh told the applicant that he needed to examine a number of documents before he would be in a position to provide advice.

1. Mr Walsh read the documents over the following 10 days. He drafted a Notice of Appeal. Unfortunately, by 25 September 2017, the 28 day period during which the Notice of Appeal should have been lodged had passed.

1. Mr Walsh saw the applicant on 3 October 2017, when he received instructions to proceed with the appeal against conviction.

1. The application for leave for appeal is made approximately three weeks out of time.

1. The principles to be applied in an application of this type were outlined by Refshauge J in Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56; 303 FLR 49 at [21]. I do not intend to repeat these principles here. Rather, I intend to make some observations giving effect to them.

1. Although time limits should, at a prima facie level, be obeyed, it is relevant that the application is not made significantly out of time.

1. An explanation has also been given for the delay. There is no reason to doubt that Mr Walsh applied himself to the perusal of the documents expeditiously and efficiently.

1. While I note that the absence of prejudice does not, of itself, justify an extension of time, there is no evidence in this case to suggest that the delay has led to any prejudice.

1. The proposed grounds of appeal relate to two decisions concerning tendency evidence and an allegation of, in effect, incompetence on the part of the applicant’s counsel at trial. The law in relation to tendency evidence is not straightforward and has been the subject of recent appellate decisions, particularly in the High Court. I cannot say that the grounds relating to tendency are without merit. The allegation of incompetency of trial counsel seems less arguable, but not to an extent that would prevent leave being given.

1. In my view, an application of a broad judicial discretion permits me to grant the application.

1. Accordingly, I make Order 1 in the application lodged on 13 October 2017: that the applicant be given leave to appeal out of time against the judgment of Justice Burns given 25 August 2017.

1. I further order that the Notice of Appeal be filed within 14 days.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 15 November 2017