Nelson v Haynes

Case [2003] WASCA 73


NELSON -v- HAYNES [2003] WASCA 73



(2003) 27 WAR 154
SUPREME COURT OF WESTERN AUSTRALIACitation No:[2003] WASCA 73
THE FULL COURT (WA)
Case No:SJA:1072/20024 MARCH 2003
Coram:MURRAY J
ANDERSON J
STEYTLER J
3/04/03
21Judgment 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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Nelson v Haynes [2003] WASCA 73
Case
[2003] WASCA 73
Decision Date

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.

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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