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Outram v R

Outram v R

Case [2013] NSWCCA 329 20 December 2013

Appeal

Breach of Contract

Compensatory Damages

Incompetence of Counsel

Miscarriage of Justice

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Outram v R [2013] NSWCCA 329
Hearing dates: 02/12/2013
Decision date: 20 December 2013
Before: Leeming JA at [1];
Johnson J at [58];
Hall J at [59]
Decision:
An extension of time to appeal is refused.

Catchwords: CRIMINAL LAW - appeal against conviction - sexual assault - application for extension of time - substantial delay without satisfactory explanation - assessment of strength of proposed appeal grounds - incompetence of counsel - failure to call evidence of good character - conflicting evidence as to reason for failure - other complaints about conduct of defence - miscarriage of justice insufficiently arguable - extension of time refused
Legislation Cited: Criminal Appeal Act 1912
Criminal Appeal Rules
Cases Cited: Abdul v R [2013] NSWCCA 247
Ali v The Queen [2005] HCA 8; 214 ALR 1
Alpha v R [2013] NSWCCA 292
Bourke v R [2013] NSWCCA 293
Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424
Golossian v R [2013] NSWCCA 311
KLM v Western Australia [2009] WASCA 73; 194 A Crim R 503
Matthews v R [2013] NSWCCA 187
Monteiro v R [2011] NSWCCA 113
Ngo v R [2013] NSWCCA 142
Nudd v The Queen [2006] HCA 9; 162 A Crim R 301
PFC v R [2011] NSWCCA 275
R v Birks (1990) 19 NSWLR 677
Sinkovich v Attorney General for NSW [2013] NSWCA 383
TKWJ v The Queen [2002] HCA 46; 212 CLR 124
Winter v R [2013] NSWCCA 231
Category: Principal judgment
Parties: Darren Ty Outram (applicant)
Regina (respondent)
Representation: Counsel:
D Barrow (applicant)
H Wilson SC (respondent)
Solicitors:
Legal Aid NSW (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s): 2009/273200
Decision under appeal

Date of Decision:

2011-05-06 00:00:00

Before:

Ellis DCJ

File Number(s):

2009/273200

Judgment

LEEMING JA: The applicant, Mr Darren Ty Outram, seeks leave to appeal against his conviction by a jury on four charges of sexual assault on 24 March 2011 following a three day trial before his Honour Ellis DCJ in the District Court at Gosford. The applicant was sentenced on 6 May 2011 for a total sentence of five years and six months with a non-parole period of three years. The sentence dated from 25 March 2011, so that the first date on which the applicant will be eligible to apply for release on parole is 24 March 2014.

That is to say, the application was heard when the applicant had already served more than 32 months of the minimum custodial period of 36 months.

That delay was attributable to the fact that the application for leave to appeal was only filed on 13 June 2013, more than two years after the applicant had been sentenced.

There was scant explanation for the delay. The applicant said that within about two weeks after his being sentenced, his barrister (who had not appeared at the trial and is not subject to the complaints now sought to be raised) had…

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 Outram v R

Details

AGLC: Outram v R [2013] NSWCCA 329
Case: [2013] NSWCCA 329
Decision Date: 20 December 2013

CaseChat Overview and Summary

In the case of Outram v R, the applicant, a person previously convicted of sexual assault, sought an extension of time to appeal against their conviction. The application was heard by the Full Court of the Federal Court of Australia. The primary issue before the court was whether the applicant's substantial delay in lodging the application for an extension of time could be satisfactorily explained, and if the proposed grounds of appeal were sufficiently arguable. Additionally, the court had to consider the impact of the alleged incompetence of the applicant's original counsel on the appeal's prospects of success.

The court found that the applicant had not provided a satisfactory explanation for the delay in lodging the application. Furthermore, the court assessed the strength of the proposed grounds of appeal, which included the incompetence of counsel, the failure to call evidence of good character, and other complaints about the conduct of the defence. The court found that while the incompetence of counsel was a serious issue, the applicant had not demonstrated how it prejudiced the outcome of the trial. The court also noted conflicting evidence regarding the reason for the failure to call evidence of good character and found that the other complaints about the conduct of the defence did not establish a miscarriage of justice.

Consequently, the court determined that the proposed grounds of appeal were insufficiently arguable to warrant an extension of time. The application for an extension of time was therefore refused. The court emphasised the importance of providing a satisfactory explanation for substantial delays in lodging applications and the need for proposed grounds of appeal to be sufficiently strong to warrant an extension of time.

Orders