SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
O’Rafferty v The Queen [No. 2]
Citation:
[2014] ACTCA 52
Hearing Date:
5 November 2014
DecisionDate:
19 December 2014
Before:
Murrell CJ, Penfold and Ross JJ
Decision:
The application is refused.
Category:
Interlocutory application
Catchwords:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – application for court to re-open appeal to deal with unaddressed appeal ground – orders made on appeal perfected – scope for appeal court to re-open unfinished appeal – scope of slip rule – whether criminal appeal can be re-opened by consent – jurisdiction of Court of Appeal – re-opening of criminal appeals by consent excluded by Court Procedures Rules.
On 21 August 2014 this Court gave a decision in an appeal by Kevin O’Rafferty against a conviction for sexual intercourse without consent (O’Rafferty v The Queen [2014] ACTCA 35). The court quashed the appellant’s conviction and ordered a new trial.
The Court’s judgment dealt with an appeal ground relating to the failure of the trial judge to put the appellant’s case properly to the jury. The Court concluded that this failure had caused a miscarriage of justice and a new trial was required. The necessary orders were made on 21 August 2014, and were recorded in a “General form of order” on the same day. It seems…
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.
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AGLC
O'Rafferty v The Queen [No. 2] [2014] ACTCA 52
Case
[2014] ACTCA 52
Decision Date
CaseChat Overview and Summary
In *O'Rafferty v The Queen* [No. 2], the applicant sought to have a perfected appeal re-opened by the Court of Appeal of New South Wales to address an appeal ground that had not been dealt with. The respondent was The Queen.
The central legal issue before the Court of Appeal was whether it possessed the jurisdiction to re-open a criminal appeal after the orders had been perfected, specifically to consider an unaddressed ground of appeal, and whether such re-opening could occur by consent of the parties.
The Court of Appeal determined that its jurisdiction to re-open perfected appeals was limited and did not extend to re-opening a criminal appeal by consent to address an unaddressed ground. The Court referred to the Court Procedures Rules, which excluded such a mechanism for re-opening criminal appeals. The principles governing the finality of judgments and the limited scope of the slip rule were applied.