Michael Robert Dewsen v Fraser James Macdonald - [2013] ACTSC 252

MICHAEL ROBERT DEWSEN v FRASER JAMES MACDONALD
[2013] ACTSC 252 (29 November 2013)

APPEAL AND NEW TRIAL – application for leave to appeal out of time from Magistrates Court – appeal against conviction – self represented litigant – whether applicant has reasonable prospects of success – no grounds of appeal revealed in material before Court

PRACTICE AND PROCEDURE – Abuse of Process – application for leave to appeal out of time from Magistrates Court – applicant putting on same application as already determined by different judge of this court

Evidence Act 2011 (ACT), s 165

Dewson v Macdonald [2013] ACTSC 112

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 95 of 2013

Judge: Burns J
Supreme Court of the ACT

Date: 29 November 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 95 of 2013
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: MICHAEL ROBERT
DEWSEN
Applicant
v

AND:FRASER JAMES
MACDONALD

Respondent

ORDER

Judge:Burns J
Date:29 November 2013
Place:Canberra

THE COURT ORDERS THAT:

The application for leave to appeal out of time lodged 15 November 2013 is refused.

This is an application for leave to appeal out of time. There is very little information in support of the application.
The Court Registry appears to have had a difficulty in reading the applicant, Mr Dewson’s, handwriting leading to him having been incorrectly identified as a “Michael Robert Dewsen” and a file made up with that name.
The applicant was convicted in respect of a charge of common assault in the Magistrates Court on 11 September 2012. By Notice of Appeal lodged 15 November 2013 he seeks to appeal that conviction.
The applicant’s version of the events relating to the charge given before me was:
I went around to XX Sinclair Street on 21 October 2011. I knocked on the door. And male occupant answered the door holding what I called a shotgun. He then came towards me then I then hit him with a single blow. Single defensive blow.
The prosecution’s case as summarised by counsel for the respondent before me was:
The prosecution's case as I apprehend it was that there was a fallout between the appellant's daughter and one of the Dove family, the Dove family being the residence [sic] that was attended by the appellant, and that one of the Doves opened the door and was essentially king hit and as a result of that stumbled back into the house and another member of the family got a rifle and, in essence, directed the appellant to leave the premises.
The applicant needs to establish in these proceedings that he has reasonable prospects of success with respect to any proposed appeal. And in that regard I would need to know what his grounds of appeal are and that is something which is not set out in the proposed Notice of Appeal. I would also need to have some explanation as…

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 Michael Robert Dewsen v Fraser James Macdonald

Details

AGLC: MICHAEL ROBERT DEWSEN v FRASER JAMES MACDONALD [2013] ACTSC 252 (29 November 2013)
Case: [2013] ACTSC 252
Decision Date: 29 November 2013

CaseChat Overview and Summary

Michael Robert Dewsen appealed against his conviction and sentence imposed by the Magistrates Court. Fraser James Macdonald was the respondent to the appeal. Dewsen sought leave to appeal out of time, arguing that he had reasonable prospects of success and that the appeal was in the interests of justice. The appeal was heard by the Supreme Court, which had to determine if the application met the criteria for leave to appeal out of time.

The court had to decide if the applicant had a reasonable prospect of success on appeal and whether the application was in the interests of justice. It also had to consider whether the applicant had disclosed all grounds of appeal and whether the application was an abuse of process. The court noted that the applicant had not revealed any grounds of appeal in the material before it. The court also found that the application was an abuse of process, as it was the same application that had been previously determined by a different judge of the same court.

The court found that the application for leave to appeal out of time did not meet the criteria for an appeal. The applicant had not revealed any grounds of appeal and the application was an abuse of process. The court also found that the applicant did not have a reasonable prospect of success on appeal and that the application was not in the interests of justice. The application for leave to appeal out of time was therefore refused.

The Supreme Court ordered that the application for leave to appeal out of time, lodged on 15 November 2013, be refused.

Orders

Orders of the court

1. The application for leave to appeal out of time lodged 15 November 2013 is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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