Nelson v The Queen - [1991] HCATrans 36

A >,, AUSTRALIA <!"'
--.>).~~~~~(.I..!

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B35 of 1990
B e t w e e n -
PETER CARL NELSON

Applicant

and
THE QUEEN

Respondent

Application for special
leave to appeal

BRENNAN J

DEANE J

DAWSON J

TOOHEY J

McHUGH J

Nelson

8/2/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 FEBRUARY 1991, AT 11.33 AM

MR W.T. McMILLAN:

May it please the Court, I appear with my

learned friend, MR P.J. ALCORN, for the applicant.
(instructed by The Public Defender)

MR M.J. BYRNE:

May the Court please, I appear with my

learned friend, MS L.K. WELLS, for the respondent.
(instructed by the Director of Public Prosecutions)

BRENNAN J:

Mr McMillan?

MR McMILLAN:

Thank you, Your Honour.

Your Honours, this

application concerns the issues involved in the
exercise of the discretion in a Court of Criminal
Appeal when dealing with an application to appeal

out of time. Now, the actual determination in this
case concerned an application to substitute a
ground of appeal for another. Section 671 of the
Queensland Criminal Code deals with the time for
appealing.

TOOHEY J:

Mr McMillan, what do you mean when you say, the

appeal deals with or raises the question of the
amendments to grounds of appeal when the appeal is
lodged out of time?

MR McMILLAN:

The notice of appeal itself was lodged within

time -

TOOHEY J: Yes, that is what prompted me to ask the

question.

MR McMILLAN:

But the grounds were sought to be substituted

out of time.

TOOHEY J: Yes, I understand that, so we are not concerned

with an appeal lodged out of time but with an
application to amend the grounds of a notice of
appeal lodged within time?

MR McMILLAN: Unfortunately there is no express

provision - - -

TOOHEY J: But is that the question with which we are

concerned?

Mr McMILLAN:

That is the question. However, there is no

express provision in the Queensland Criminal Code
or the Criminal Practice Rules that deal with the
amendment of a notice of appeal and what the
practice has developed in Queensland, as appeared
in both judgments in this case, is that it is

treated as if it were an appeal out of time. An
application has to be made for leave to add or
substitute the new ground of appeal.
Section 671 by subsection (1) deals with the

time that a proposed appellant has to contend with,

Nelson

8/2/91

it being 28 days in relation to lodgment of the
appeal, and subsection (3) says:
The time within which notice of

appeal ..... may be given may be extended at any
time by the Court.

At page 173 of the record, at the foot of that page, the first page of the reasons of the
Chief Justice, he says:
In accordance with the practice of this

Court, which has been explained on a number of occasions,…

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 Nelson v The Queen

Details

AGLC: Nelson v The Queen [1991] HCATrans 36
Case: [1991] HCATrans 36
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia concerning an application for special leave to appeal. The applicant, Mr Nelson, sought to challenge a decision of the Queensland Court of Criminal Appeal. The core of the dispute revolved around the procedure for amending grounds of appeal in Queensland criminal proceedings, specifically when the original notice of appeal was lodged within the prescribed time but the proposed amendments were sought later.

The legal issue before the High Court was whether the Queensland Court of Criminal Appeal had erred in its approach to an application to substitute new grounds of appeal. The applicant argued that there was no express provision in the Queensland Criminal Code or its Criminal Practice Rules governing the amendment of a notice of appeal. The Court of Criminal Appeal, however, had treated such an application as akin to an appeal lodged out of time, requiring leave to be granted.

The High Court considered the practice that had developed in Queensland, where applications to add or substitute grounds of appeal were treated as requiring leave, similar to applications for extensions of time to appeal. This practice was informed by the Chief Justice's reasons, which indicated that appeals out of time or the substitution of new grounds would only be permitted in special circumstances. The Court noted the absence of an express rule dealing with the amendment of notices of appeal and the requirement for grounds to be stated within the notice itself, referencing previous Queensland decisions that held a notice of appeal without specific grounds to be insufficient.

Orders