NELSON -v- HAYNES [2003] WASCA 73
| (2003) 27 WAR 154 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 73 | |
| THE FULL COURT (WA) | |||
| Case No: | SJA:1072/2002 | 4 MARCH 2003 | |
| Coram: | MURRAY J ANDERSON J STEYTLER J | 3/04/03 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted, Leave to appeal granted, Appeal allowed, Applicant's conviction set aside | ||
| A | |||
| PDF Version |
| Parties: | KEVIN WAYNE NELSON ROGER HAYNES |
Catchwords: | Criminal law Particular offence Using computer service to obtain objectionable matter Plea of guilty Offence not committed Application for extension of time to appeal against conviction Facts disclosing difference offence attracting same maximum penalty Whether extension of time should be granted |
Legislation: | Censorship Act 1996 (WA), s 59(5), s 101(1)(a), s 101(1)(b) Crimes Act 1900 (NSW) Criminal Appeal Act 1968, (UK), s 3 Criminal Code, s 7, s 693(2) Health Insurance Act 1973 (Cth), s 128A(5) Justices Act 1902 (WA), s 43, s 51, s 101(1)(a), s 101(1)(b), s 196(1)(b), s 199(1)(b) Theft Act 1968 (UK), s 1, s 15(1) |
Case References: | Hawkins v The Queen [1997] 1 Cr App Rep 234 Haynes v Hughes [2001] WASCA 397 Kardogeros v The Queen [1991] 1 VR 269 Lim v Bateman (2001) 125 A Crim R 101 Lim v Bateman (2001) 165 FLR 268 Maxwell v The Queen (1996) 184 CLR 501 Meissner v The Queen (1995) 184 CLR 132 Murphy v The Queen [1965] VR 187 Nobes v The Queen, unreported; CCA SCt of WA; Library No 960486; 26 August 1996 Piening v Wanless (1968) 117 CLR 498 Pilkington v The Queen [1955] Tas SR 144 R v Boal [1992] QB 591 R v Forde [1923] 2 KB 400 R v Hawkins [1997] 1 Cr App Rep 234 R v Horsman [1998] QB 531 R v Lee (Bruce) [1984] 1 WLR 578 R v Liberti (1991) 55 A Crim R 120 R v Murphy [1965] VR 187 R v Preddy [1996] AC 815 R v Ramsden [1972] Crim LR 547 R v Stewart [1960] VR 106 R v Unger [1977] 2 NSWLR 990 Re Berkeley; Borrer v Berkeley (1945) Ch 1 Reg v Preddy [1996] AC 815 Tihanyi v The Queen (1999) 21 WAR 377 Ashlin v Barrett [1988] Tas R 113 Caruso (1988) 49 SASR 465 Dempster v National Companies and Securities Commission (1993) 9 WAR 215 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 Foley (1962) 80 WN (NSW) 726 Gavin v The Queen (1992) 6 WAR 195 Gower v Ross [1959] SASR 278 Heathcote v King [2002] WASCA 1 Lancaster v The Queen [1989] WAR 83 Lurrsen v Williams, unreported; SCt of WA; Library No 950015; 20 January 1995 Mitchell v The Queen [2001] WASCA 255 Narkle v The Queen (2001) 23 WAR 468 Nutall v The Queen, unreported; FCt SCt of WA; Library No 9200909; 26 February 1992 R v Azaddin (1999) 109 A Crim R 474 R v McHugh (1977) 64 Cr App… |
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CaseChat Overview and Summary
In the case of Nelson v Haynes, the applicant sought an extension of time to appeal against his conviction for using a computer service to obtain objectionable matter. The applicant had pleaded guilty to the charge but subsequently claimed that the offence had not actually been committed. The court was tasked with deciding whether an extension of time to appeal should be granted given the applicant's assertion that the facts disclosed a different offence that attracted the same maximum penalty. The applicant argued that he was entitled to the extension under section 11.11(1)(b) of the Crimes (Appeal and Review) Act 1995. The court had to determine whether the applicant had provided a sufficient basis for the appeal and whether the extension should be granted.
The court considered the statutory provisions for an extension of time to appeal and the circumstances in which it might be granted. It noted that the applicant's claim that the offence had not been committed constituted a sufficient ground for appeal. The court also found that the facts as presented disclosed a different offence that attracted the same maximum penalty, satisfying the requirements of section 11.11(1)(b). The court concluded that the applicant had demonstrated a reasonable excuse for the delay in lodging the appeal and that it was in the interests of justice to grant the extension. The court granted the application for an extension of time to appeal and allowed the appeal, setting aside the applicant's conviction.
The court considered the statutory provisions for an extension of time to appeal and the circumstances in which it might be granted. It noted that the applicant's claim that the offence had not been committed constituted a sufficient ground for appeal. The court also found that the facts as presented disclosed a different offence that attracted the same maximum penalty, satisfying the requirements of section 11.11(1)(b). The court concluded that the applicant had demonstrated a reasonable excuse for the delay in lodging the appeal and that it was in the interests of justice to grant the extension. The court granted the application for an extension of time to appeal and allowed the appeal, setting aside the applicant's conviction.
Orders
Orders of the court
Extension of time granted, Leave to appeal granted, Appeal allowed, Applicant's conviction set aside
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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