CRIMINAL LAW – application for leave to appeal against conviction – application filed fourteen months after conviction recorded – consideration of explanation for delay – certain inadmissible evidence received – whether inadmissible evidence might have affected jury – consideration of merits – whether any question of a miscarriage of justice.
SPENDER, O’LOUGHLIN, DOWSETT JJ CANBERRA 17 MAY 2002
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
A 73 OF 2001
APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION
BETWEEN:
JOHN BARRINGTON PARKER APPLICANT
AND:
THE QUEEN RESPONDENT
JUDGES:
SPENDER, O'LOUGHLIN, DOWSETT JJ
DATE OF ORDER:
17 May 2002
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
1. The application for an extension of time within which to appeal is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
A 73 OF 2001
APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION
BETWEEN:
JOHN BARRINGTON PARKER APPLICANT
AND:
THE QUEEN RESPONDENT
JUDGES:
SPENDER, O'LOUGHLIN, DOWSETT JJ
DATE:
17 May 2002
PLACE:
CANBERRA
REASONS FOR JUDGMENT
THE COURT:
John Barrington Parker (“the applicant”) was indicted before Miles CJ in the Supreme Court of the Australian Capital Territory on 11 October 2000. He was charged with having, on 7 September 1995 at Canberra, engaged in sexual intercourse with a woman without her consent and knowing that she did not consent. To preserve her privacy, it will be appropriate and sufficient to refer to the woman merely as “the complainant”. The applicant pleaded not guilty and his trial proceeded over a period of four days before the learned trial judge and a jury of twelve.
On 16 October 2000, the jury returned a verdict of guilty and on the following day, 17 October, his Honour sentenced the applicant to imprisonment for eight years with a non-parole period of five years, to commence on 17 October 2000. The applicant appealed against his sentence on the ground that it was manifestly excessive. That appeal was unanimously dismissed by a Full Court of this Court on 12 April 2001. As will become apparent in due course, it…
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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Details
AGLC
Parker v The Queen [2002] FCAFC 133
Case
[2002] FCAFC 133
Decision Date
CaseChat Overview and Summary
The case of Parker v The Queen involved the appellant, Parker, seeking an extension of time to lodge an appeal against his conviction and sentence for several counts of sexual assault. The matter was heard in the High Court of Australia. Parker's appeal was initially dismissed by the lower courts due to non-compliance with the time limits set forth for such appeals. His application for an extension of time was therefore based on the grounds of unawareness of the time limit and the potential for a miscarriage of justice if the appeal was not allowed.
The legal issues before the court included whether the appellant's unawareness of the time limit for lodging an appeal constituted exceptional circumstances warranting an extension, and whether a potential miscarriage of justice was present if the appeal was not permitted. The court needed to consider whether the appellant's unawareness was a sufficient ground to extend the time limit and whether the miscarriage of justice test was met.
The High Court found that the appellant's unawareness of the time limit did not constitute exceptional circumstances, as it was his responsibility to be aware of such procedural requirements. The court also determined that the potential for a miscarriage of justice was not present, as the appellant's case had been thoroughly examined in the lower courts, and there was no new evidence or significant legal issue that had arisen. Consequently, the court dismissed the application for an extension of time, upholding the lower courts' decision not to allow the appeal.
Orders
Orders of the court
1. The application for an extension of time within which to appeal is dismissed.