everyone has an affidavit that was filed by the
respondent with our consent sometime last week; it
being the affidavit of one John William Pritchard,
solicitor, employed in the office of the DPP?

MASON CJ:	I do not, but - - -
MR HORLER:	Yes, we do, Your Honour, that is the purpose of

making that inquiry.

MASON CJ:	I think we are only one short.
MR HORLER:	Then I remedy that, Your Honour.

MASON CJ: Thank you.

MR HORLER:

Might I deal with a couple of preliminary

matters before I come to speak briefly to our
outline of submissions? There is an error in the

affidavit filed on behalf of the applicant by his

solicitor, Mr Gerard Craddock. That is in the

application book commencing at page 106. Could I

ask the Court please to go to page 107, being

page 2 of that affidavit. At paragraph 6, we set

out two grounds, 6(i) and (ii).

The typographical

error is to be found in 6(ii). It now reads:

the Court erred in imposing sentence upon the
applicant -

and the word from the draft were omitted and I
apologize. The words should then follow after
"applicant" - these words: "without permitting the
applicant", otherwise it makes no sense at all.
So, that ground should read in full:

Medina

12/3/91

the Court erred in imposing sentence upon the
applicant -

with the addition of these words "without

permitting the applicant". And the respondent has

been alerted to this. May I make that amendment.

The other matter is this: we are out of time;

we need the Court's leave. If the Court is minded
to give us that leave, I understand Mr Weinberg
does not oppose it.

MASON CJ:

Yes.

You can proceed with your argument,

Mr Horler.

MR HORLER:

Thank you.

Your Honours, there is not a great

deal that I wish…

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 Medina v The Queen

Details

AGLC: Medina v The Queen [1991] HCATrans 70
Case: [1991] HCATrans 70
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal by David Fernando Medina against a decision of the Court of Criminal Appeal of New South Wales. The applicant was represented by Mr K.G. Horler, QC, and Mr P. Byrne, while the respondent, the Queen, was represented by Mr M.S. Weinberg, QC, and Mr T.L. Budden. The proceedings were before the High Court of Australia.

The primary legal issue before the High Court was whether the Court of Criminal Appeal erred in imposing sentence upon the applicant. This issue arose from a typographical error in the applicant's grounds of appeal, which the applicant sought leave to amend to include the words "without permitting the applicant" to clarify the nature of the alleged error. The applicant also sought leave to appeal out of time.

The applicant's counsel explained that Mr Medina had pleaded guilty in the New South Wales District Court and was sentenced on 14 December 1989. The Director of Public Prosecutions subsequently appealed this sentence, and the Court of Criminal Appeal handed down its decision on 28 May 1990. The sentence imposed by the Court of Criminal Appeal was a minimum term of 18 months with an additional term of six months, totalling two years. The applicant would become eligible for parole on or about 27 November of that year. The applicant's submissions focused on the details of the chronology and the grounds of appeal, with an affidavit from a solicitor employed by the Director of Public Prosecutions being filed by consent to address matters of concern to the applicant.

Orders