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Nona v The Queen

Nona v The Queen

Case [2012] ACTCA 55 21 December 2012

Statutory Construction

Abuse of Process

Criminal Law

Statutory Interpretation

Administrative Law

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HUMAN RIGHTS ACT

DENNIS MICHAEL NONA v THE QUEEN
[2012] ACTCA 55 (21 December 2012)

CRIMINAL LAW – Sexual offences against children – Delay in prosecution – Human Rights Act 2004 (ACT) s 22(2)(c) – Calculation of when a person is “charged”.

APPEAL – Jurisdiction, practice and procedure – Extension of time to appeal – Exercise of discretion in granting leave – Factors to consider – Justice between the parties paramount – Where appeal against conviction already commenced as of right – Appellate court to consider full range of justiciable issues – Extension granted.

APPEAL – Jurisdiction, practice and procedure – Application for leave to appeal against interlocutory order – Refusal to grant a stay interlocutory – General principles – Arrow International Australia Ltd v Group Konstrukt Pty Ltd – Where appeal against conviction already commenced – Matter of public importance – Leave granted in respect of older proceedings – Leave refused in respect of newer proceedings.

Human Rights Act 2004 (ACT), ss 22(2)(c), 30, 31, pts 4, 5A

Supreme Court 1933 (ACT), ss 37E(4), 37J(1)

Court Procedures Rules 2006 (ACT), r 5312

Canadian Charter of Rights and Freedoms, s 11(b)

European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953)

Arrow International Australia Ltd v Group Konstrukt Pty Ltd [2012] ACTCA 37
Attorney-General’s Reference (No 2 of 2001) [2004] 2 AC 72
Deputy Federal Commissioner of Taxation v Yosemite Afforestation Pty Ltd (1988) 88 ATC 4505
Deweer v Belgium (1980) 2 EHHR 439
Eckle v Germany (1982) 5 EHRR 1
Fairfax Media Publications Pty Ltd v Cummings [2012] ACTCA 36
Gallo v Dawson (1990) 93 ALR 479
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478
Hatti v Germany (European Court of Human Rights, Commission (Plenary), Application No 6181/73, 20 May 1976)
Hughes v National Trustees; Executors and Agency Co of Australasia Ltd [1978] VR 257
Hakimi v Legal Aid Commission (ACT) (2009) 3 ACTLR 127
Hall v Nominal Defendant (1966) 117 CLR 423
Jackamarra v Krakouer (1988) 195 CLR 516
Kalanj v The Queen [1989] 1 SCR 1594
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Menzies v CRCI Pty Ltd [2007] NSWCA 118
National Exchange Pty Ltd v Brown (2004) 185 FLR 121
R v Alhakim (1999) 65 CRR (2d) 307
R v Mackintosh (1988) 26 BCLR (2D) 1
R v Meyboom (2012) 256 FLR 450
R v Nona (2012) 6 ACTLR 203
Spiers v Ruddy [2008] 2 WLR 608

Tampion v Anderson (1973) 3 ALR 414

Vilenius v Heiniger (1962) 36 ALJR 200
X v United Kingdom (European Court of Human Rights, Commission (Plenary), Application No 6728/74, 11 May 1978)

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 40 – 2012
No. SC 447 of 2009
No. SC 378 of 2010

Judge: Refshauge J
Court of Appeal of the Australian Capital Territory
Date: 21 December…

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 Nona v The Queen

Details

AGLC: Nona v The Queen [2012] ACTCA 55
Case: [2012] ACTCA 55
Decision Date

CaseChat Overview and Summary

The case of *Nona v The Queen* concerned an appeal to the Court of Appeal of the Australian Capital Territory by Dennis Michael Nona against decisions of the Supreme Court of the Australian Capital Territory. The dispute arose from charges of sexual offences against children, where Mr. Nona sought a permanent stay of proceedings due to significant delays in prosecution. The Supreme Court had refused to grant a stay, leading to Mr. Nona's application for leave to appeal.

The Court of Appeal was required to determine whether to grant an extension of time to appeal against the Supreme Court's refusal to grant a stay, and whether to grant leave to appeal against that refusal. Specifically, the court had to consider the principles governing the exercise of discretion in granting extensions of time and leave to appeal, particularly where an appeal against conviction had already commenced. The court also had to assess the Supreme Court's reasoning regarding the common law and the *Human Rights Act 2004* (ACT) in relation to the delay in prosecuting the charges.

The Court of Appeal applied principles of appellate jurisdiction and discretion. It recognised that justice between the parties is paramount and that an appellate court should consider the full range of justiciable issues when an appeal against conviction has already been initiated. The court found that the delay in prosecuting the charges concerning the first complainant was significant and that the Supreme Court had erred in its approach to the *Human Rights Act 2004* (ACT), particularly in its calculation of when Mr. Nona was "charged" for the purposes of s 22(2)(c). The court also considered the Supreme Court's finding that Mr. Nona's rights under s 22(2)(c) had been breached, but that a stay was not automatic.

The Court of Appeal ordered an extension of time for Mr. Nona to apply for leave to appeal against the Supreme Court's decision of 23 March 2012. Leave to appeal was granted in respect of the charges involving the first complainant, but refused in respect of the charges involving the second complainant. The appeal for which leave was granted was ordered to be heard concurrently with another appeal by Mr. Nona.

Orders