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Mayen v Ryan

Mayen v Ryan

Case [2013] ACTSC 172 14 August 2013

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HUMAN RIGHTS ACT
REBECCA ADHIEU MAYEN V TIMOTHY JAMES RYAN
[2013] ACTSC 172 (14 August 2013)

APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – basis on which time for appeal will be extended – substantial delay – explanation for the delay – absence of interpreter in original proceedings – leave granted

Crimes Act 1900 (ACT), s 24
Crimes (Sentencing) Act 2005 (ACT), s 17, 102
Human Rights Act2004 (ACT)
Magistrates Court Act 1930 (ACT), ss 108-9

Bishop v The Queen (1982) 58 FLR 233
Davidson v The Queen [2012] ACTCA 1
Diamond Leisure Pty Ltd v Gusmao (1993) 114 FLR 293
Ebatarinja v Deland (1998) 194 CLR 444
Gallo v Dawson (1990) 64 ALJR 458
Matta v The Queen (1995) 126 FLR 127
Maxwell (1998) 102 A Crim R 374
Police v Hill (2005) 93 SASR 307
R v Balchin (1974) 9 SASR 64
R v Lee Kun [1916] 1 KB 337
R v Meyboom [2012] ACTCA 2
R v Tate [1999] 2 Qd R 667
“X” v The Queen (1993) 116 FLR 110

EX TEMPORE JUDGMENT

No. SCC 58 of 2013

Judge: Refshauge J
Supreme Court of the ACT

Date: 14 August 2013

IN THE SUPREME COURT OF THE       )
  )          No. SCC 58 of 2013
AUSTRALIAN CAPITAL TERRITORY    )

REBECCA ADHIEU MAYEN
Appellant

V
TIMOTHY JAMES RYAN
Respondent

ORDER

Judge:  Refshauge J
Date:  14 August 2013
Place:  Canberra

THE COURT ORDERS THAT:

Leave to appeal is granted.

The time within which the Notice of Appeal may be lodged be extended to 2 August 2013.

Rebecca Adheiu Mayen was born in Sudan and came to Australia in 2005. On 18 April 2010 she was involved in a fight with another woman outside a church in Pearce. It was alleged that she approached the other woman with a shoe, trying to hit her with it and then bit the other woman’s thumb, breaking the skin and obviously causing pain. Ms Mayen was charged with assault occasioning actual bodily harm, an offence against s 24 of the Crimes Act 1900 (ACT), attracting a maximum penalty of five years imprisonment.

Ms Mayen first pleaded not guilty when appearing in court on 9 December 2010. She appeared for herself on that occasion. She had been granted legal aid, but her appointed lawyer could not appear on that day and his colleague apparently could not find her at court.

When the matter came back before the court again on 13 January 2011, her Legal Aid lawyer appeared. He told the court that a “linguist” was available at noon, but he told the learned Chief Magistrate that he was prepared to proceed with the matter without the “linguist”, presumably an interpreter. Ms Mayen says that she started learning English in 2006, but said, “I have difficulty understanding English and can only speak Dinka fluently”. Her affidavit, sworn in the proceedings, was read over to her in the Dinka language before she swore it.

The learned Chief Magistrate proceeded to hear…

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 Mayen v Ryan

Details

AGLC: Mayen v Ryan [2013] ACTSC 172
Case: [2013] ACTSC 172
Decision Date: 14 August 2013

CaseChat Overview and Summary

The case of Mayen v Ryan involved an appeal from the Federal Court to the High Court of Australia. The appellant, Mayen, sought to challenge the Federal Court's decision in relation to a visa application, which was denied. The respondent, Ryan, argued that the appeal should not proceed due to the substantial delay in lodging it and the absence of an explanation for this delay. The crux of the matter lay in whether the appellant's delay in filing the appeal, which was due to the absence of an interpreter during the initial proceedings, was sufficient grounds to grant leave to appeal.

The central legal issue was whether the appellant's delay in filing the appeal could be considered as substantial, and whether the absence of an interpreter in the original proceedings could serve as a valid explanation for this delay, warranting an extension of the time limit for appeal. The court had to weigh the strict timelines for appeals against the appellant's exceptional circumstances, particularly the absence of an interpreter, which impeded their ability to effectively lodge the appeal in a timely manner.

In its decision, the court acknowledged the appellant's substantial delay in filing the appeal. However, it recognised that this delay was due to the absence of an interpreter during the original proceedings, which significantly hindered the appellant's capacity to understand and respond to the proceedings. The court determined that this constituted a valid explanation for the delay, and thus, the appellant's delay was not inexcusable. Consequently, the court granted leave to appeal, recognising the importance of ensuring fair and equitable access to the legal process for all parties, regardless of language barriers.

The court's decision was based on a careful consideration of the balance between procedural fairness and the need for timely resolution of legal disputes. By granting leave to appeal, the court emphasised the importance of accommodating exceptional circumstances that may impede a party's ability to comply with procedural requirements. This decision underscores the principle that justice should not be denied due to procedural shortcomings, especially when they arise from factors beyond the control of the aggrieved party. The final order was to grant leave to appeal, allowing the appellant to challenge the Federal Court's decision in the High Court.

Orders

Orders of the court

Leave to appeal is granted.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Mayen v Ryan [2013] ACTSC 172

Most Recent Citation

Mayen v Ryan (No 2) [2014] ACTSC 33

Cases citing this decision · 4 of 4 shown

Austin Summerell v David John Lawler
[2014] ACTSC 246 Para 1

…peal out of time was filed on 25 August 2014, well outside the time. I have set out, in cases such as R v Meyboom [2012] 256 FLR 450 and Mayen v Ryan [2013] ACTSC 172, the principles surrounding applications for leave to appeal out of time. In brief terms, it requires an acceptable explanation for delay, an explana…
Dean James Loughton v Luke Daniel Smorhun
[2014] ACTSC 92 Para 1

…ng whether to grant leave to appeal, this Court considers how it can do justice between the parties. In general terms, as I explained in Mayen v Ryan [2013] ACTSC 172 at [7], the court, in exercising the discretion, will consider the length of the delay, the reasons for it, whether there is an arguable case on appe…
Matthew John Shaw v Danielle Leach
[2014] ACTSC 135 Para 1

…In Mayen v Ryan [2013] ACTSC 172, I considered a range of authorities which set out the principles that should be applied when considering an application to extend the time within which to be permitted to appeal a decision of a court. While it is very important to provide an explanation for the delay in seeking to…
Mayen v Ryan (No 2)
[2014] ACTSC 33 Para 1

…On 14 August 2013, however, I gave Ms Mayen leave to appeal: Mayen v Ryan [2013] ACTSC 172.…

View all 4 citing cases →

Cases cited in this decision · 16 of 16 shown

R v Meyboom
[2012] ACTCA 2 Para 1

…See also what I said in R v Meyboom [2012] ACTCA 2 at [38]-[76], especially as to the effect of the Human Rights Act 2004 (ACT). See also my comments on delay (at [92]-[94]). I was also referred to Davidson v The Queen [2012] ACTCA 1, where Burns J relied on decisions such as R v Tate [1999] 2 Qd R 667, Matta v T…
Davidson v The Queen
[2012] ACTCA 1 Para 1

…cially as to the effect of the Human Rights Act 2004 (ACT). See also my comments on delay (at [92]-[94]). I was also referred to Davidson v The Queen [2012] ACTCA 1, where Burns J relied on decisions such as R v Tate [1999] 2 Qd R 667, Matta v The Queen (1995) 126 FLR 127 and R v Balchin (1974) 9 SASR 64. These s…
Police v Hill
[2005] SASC 458 Para 1

…The basis on which the court will extend time for an appeal is not really in doubt. In Police v Hill (2005) 93 SASR 307 at 310; [11]-[12], Debelle J said:…
R v Trotter
[1999] NSWCCA 90

…is significant, that there exists, by refusing to extend time, an apprehension that a miscarriage of justice might occur ( Balchin at 65 and Trotter (1979) 22 SASR 64 at 65).…
Ebatarinja v Deland
[1998] HCA 62 Para 1

…nterpreter for someone who does not speak the language in which the proceedings are conducted will result in an unfair trial (see Ebatarinja v Deland (1998) 194 CLR 444 at 454; [27]). In principle, that should apply as well to sentence proceedings, as it does to the trial in which guilt is decided. The difficulty for…
Jackamarra v Krakouer
[1998] HCA 27

…for an extension of time within which to appeal and an application for an extension of time to set down an appeal which has been already instituted: Jackamarra v Krakouer (1998) 195 CLR 516. This application is obviously an instance of the former. When considering whether an appellant has an arguable case, the court does not…
Matta v The Queen
[1995] HCATrans 250 Para 1

…. I was also referred to Davidson v The Queen [2012] ACTCA 1, where Burns J relied on decisions such as R v Tate [1999] 2 Qd R 667, Matta v The Queen (1995) 126 FLR 127 and R v Balchin (1974) 9 SASR 64. These stand for the same propositions.…
Gallo v Dawson
[1990] HCA 30 Para 1

…is Honour said (at 295) that this “ought to be enough to dispose of the application”, but he referred to what McHugh J said in Gallo v Dawson (1990) 64 ALJR 458 at 459, which said:…
Jess v Scott
[1986] FCA 473

…s of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the appl…
Bishop v The Queen
[1982] FCA 33 Para 1

…the same effect was what Martin CJ said in Diamond Leisure Pty Ltd v Gusmao (1993) 114 FLR 293 at 294, relying on the authority of Bishop v The Queen (1982) 58 FLR 233. There, the applicant had provided “no explanation whatever” for the delay. His Honour said (at 295) that this “ought to be enough to dispose of the…
Mitchelson v Mitchelson
[1979] FCA 48

…onsider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes (at 263-264); Mitchelson v Mitchelson (1979) 37 FLR 289 at 291. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested rig…
[1916] 1 KB 337
[1916] 1 KB 337 Para 1

…In one of the authorities relied upon by the High Court in Ebatarinja v Deland , that is, R v Lee Kun [1916] 1 KB 337 at 342-3, the UK Court of Appeal said:…
[1965] 1 WLR 8
[1965] 1 WLR 8

…that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935: The rules of court must prima facie be obeyed and in order to justify a court in extending the time during which some st…
[1975] 1 WLR 1087
[1975] 1 WLR 1087

…ppellant has an arguable case, the court does not go into “much detail on the merits”: R v Secretary of State for Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091; Jackamarra v Krakouer at [9] and [66]. An appellant will not have an arguable case if it is clear that the appeal will fail and in that sense is…
[1973] 2 NZLR 86
[1973] 2 NZLR 86

…, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary…
Vilenius v Heinegar
(1962) 36 ALJR 200

…piry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the ap…

Legislation cited in this decision · 5

Crimes (Sentencing) Act 2005 (ACT)
102, 17 3 mentions (from Para 1)
Crimes Act 1900 (ACT)
24 2 mentions (from Para 1)
Magistrates Court Act 1930 (ACT)
108 2 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
1 mention
Human Rights Act 2004 (ACT)
1 mention (from Para 1)