MITCHELL -v- THE QUEEN [2001] WASCA 255

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 255
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:207/2000	Heard:	3 AUGUST 2001
Coram:	MALCOLM CJ WHEELER J BURCHETT AUJ	Delivered:	24/08/01
No of pages:	13	Judgment Part:	1 of 1
Result:	Application for extension of time to appeal against conviction refused
Category:	D
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Parties:	DAVID KANE MITCHELL THE QUEEN
Catchwords:	Criminal law Sentencing Offences against the person Assault occasioning bodily harm
Legislation:	Criminal Code (WA) s 317(1)
Case References:	Casserly v R, unreported; SCt of WA; Library No 990164; 31 March 1999 Garlett v Dillon, unreported; SCt of WA; Library No 960353; 5 July 1996 Gavan v The Queen (1991) 6 WAR 195 Harman v Ayling, unreported; SCt of WA; Library No 960633; 5 November 1996 Lancaster v The Queen [1989] WAR 83 Parsons v The Queen (1993) 10 WAR 92 R v Brown [1963] SASR 190 R v Perry [1970] 2 NSWLR 501 Ryll v R [2001] WASCA 185 Schuster v The Queen, unreported; CCA SCt of WA; Library No 970180; 23 April 1997 Tan v R, unreported; CCA SCt of WA; Library No 960188; 1 April 1996 Turan v The Queen [1989] 2 WAR 140 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MITCHELL -v- THE QUEEN [2001] WASCA 255 CORAM : MALCOLM CJ

WHEELER J

BURCHETT AUJ

HEARD : 3 AUGUST 2001 DELIVERED : 24 AUGUST 2001 FILE NO/S : CCA 207 of 2000

CCA 54 of 2001

BETWEEN : DAVID KANE MITCHELL

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law - Sentencing - Offences against the person - Assault occasioning bodily harm

Legislation:

Criminal Code (WA) s 317(1)

Result:

Application for extension of time to appeal against conviction refused

(Page 2)

Category: D

Representation:

Counsel:

Applicant : In person

Respondent : Ms S A Sweeney

Solicitors:

Applicant : In person

Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Casserly v R, unreported; SCt of WA; Library No 990164; 31 March 1999
Garlett v Dillon, unreported; SCt of WA; Library No 960353; 5 July 1996
Gavan v The Queen (1991) 6 WAR 195
Harman v Ayling, unreported; SCt of WA; Library No 960633; 5 November 1996
Lancaster v The Queen [1989] WAR 83
Parsons v The Queen (1993) 10 WAR 92
R v Brown [1963] SASR 190
R v Perry [1970] 2 NSWLR 501
Ryll v R [2001] WASCA 185
Schuster v The Queen, unreported; CCA SCt of WA; Library No 970180; 23 April 1997
Tan v R, unreported; CCA SCt of WA; Library No 960188; 1 April 1996
Turan v The Queen [1989] 2 WAR 140

Case(s) also cited:

Nil

(Page 3)

1 MALCOLM CJ: This was an application for an extension of time for leave to appeal against conviction and an application for leave to appeal against sentence. On 18 September 2000 the applicant pleaded guilty in the District Court…

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 Mitchell v The Queen

Details

AGLC: Mitchell v The Queen [2001] WASCA 255
Case: [2001] WASCA 255
Decision Date: 24 AUGUST 2001

CaseChat Overview and Summary

In the High Court of Australia, Mitchell was convicted of assault occasioning bodily harm. Mitchell appealed against the conviction, seeking an extension of time to do so. The Crown opposed the application on the basis that the application was filed out of time. The legal issues before the court were whether the application was made within a reasonable time and whether exceptional circumstances existed to warrant an extension of the time. The court found that the application was not made within a reasonable time and that no exceptional circumstances existed to warrant an extension. The court dismissed the application for an extension of time to appeal against the conviction. The final orders of the court were that the application for an extension of time to appeal against the conviction was refused.

Orders

Orders of the court

Application for extension of time to appeal against conviction 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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