R v Azaparti

[2016] SASCFC 46

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v AZAPARTI

[2016] SASCFC 46

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Doyle)

3 May 2016

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - OTHER MATTERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - ABANDONMENT OF APPEAL

Appeal against conviction - the appellant was convicted by a Judge of the District Court of aggravated serious criminal trespass in a place of residence, assault, aggravated causing harm with intent to cause harm and theft - the appellant appealed against the conviction of the first three counts - permission to appeal to the Court of Criminal Appeal was granted on 8 February 2016 - the appeal was heard on 17 March 2016 and judgment was reserved - on 8 April 2016 the Court was informed that the appellant had died in custody.

Held per the Court, dismissing the appeal:

1.   On the death of an appellant, the Court loses jurisdiction because it is dependent on, and inextricably bound with, the convicted person’s exercise of the power to appeal.

2.   There cannot be an action without a moving party and another person cannot be substituted as the appellant.

3.   The appeal proceeding must be dismissed for lack of jurisdiction.

Criminal Law Consolidation Act 1935 (SA) s 352, referred to.

R v AZAPARTI
[2016] SASCFC 46

Court of Criminal Appeal:  Kourakis CJ, Kelly and Doyle JJ

1. THE COURT:       On 19 November 2015 Mr Azaparti was convicted of the offences of aggravated serious criminal trespass in a place of residence, assault, aggravated cause harm and theft. He appealed against the first three of those convictions on 10 December 2015.  Permission to appeal was granted on 8 February 2016.  On 17 March 2016 the appeal was heard and judgment was reserved.  

2. On 8 April 2016 the Court was informed that Mr Azaparti had died in custody. 

3. Section 352 of the Criminal Law Consolidation Act 1935 (SA) both empowers a convicted person to appeal, against his or her conviction or sentence, and confers jurisdiction on the Full Court to hear and determine an appeal so brought. On the death of an appellant, the Full Court loses its jurisdiction because it is dependent on, and inextricably bound with, the convicted person’s exercise of the power to appeal. Nor can there be an action without a moving party. Another person cannot be substituted as the appellant for two interrelated reasons. First, there is no extant matter in which the application can be brought. Secondly, even if there were a joinder of a person, other than the convicted person, there would no longer be an action of a kind which enlivens the jurisdiction conferred by s 352 of the Criminal Law Consolidation Act 1935 (SA).

4. The appeal proceeding must be dismissed for the lack of jurisdiction.