R v David Welch

[2009] ACTCA 21

R v DAVID WELCH
[2009] ACTCA 21 (10 NOVEMBER 2009)

EX TEMPORE JUDGMENT

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

No. ACTCA 8-2009
No. SCC 147 of 2008

Judges:         Gray P, Refshauge and Ryan JJ
Court of Appeal of the Australian Capital Territory
Date:            10 November 2009

IN THE SUPREME COURT OF THE       )          No. ACTCA 8-2009
  )          No. SCC 147 of 2008
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

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

BETWEEN:THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

AND:DAVID JOHN WELCH

Respondent

ORDER

Judges:  Gray P, Refshauge and Ryan JJ
Date:  10 November 2009
Place:  Canberra

THE COURT ORDERS THAT:

1. The application for leave to appeal be granted.

1. The decision of the Chief Justice of 6 April 2009 be set aside.

IN THE SUPREME COURT OF THE       )          No. ACTCA 8-2009
  )          No. SCC 147 of 2008
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

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

BETWEEN:THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

AND:DAVID JOHN WELCH

Respondent

ORDER

Judges:  Gray P, Refshauge and Ryan JJ
Date:  10 November 2009
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. The notice of appeal, in paragraph 1, specifies that on 6 April 2009 Chief Justice Higgins made the following decision, and we quote, “a lawful arrest had not been effected”.

1. That decision is a reference to a decision that his Honour made in paragraph 47 of his reasons for judgment concerning a defect that he found in respect of the warrant of arrest in this matter when he said that he found the attempt to arrest the accused as unlawful.  A later decision was made in relation to the manner of the execution of the warrant and, in respect of that decision, his Honour found that a lawful arrest had not been effected as a consequence of the manner of execution. 

1. This Court would grant leave to appeal and allow the appeal to set aside the decision as particularised in the notice of appeal.  The Court does so because it is satisfied that his Honour erred in misconceiving the fact that the arrest warrant had been admitted into evidence before him by consent.

1. There is no matter before us concerning the second decision made by his Honour in respect of the manner of the execution of the warrant.  That decision still stands and there is no reason for us to take any steps to set aside that decision.

1. We note that his Honour, in making the decisions that he made after the trial in respect of this matter had been completed, gave the opportunity for counsel to be heard.  We see no reason why that opportunity should not be availed of by counsel.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date:     27 November 2009

Counsel for the Applicant:  Mr J White
Solicitor for the Applicant:  Director of Public Prosecutions (ACT)
Counsel for the Respondent:  Mr R Livingston
Solicitor for the Respondent:  Rachel Bird & Co
Date of hearing:  10 November 2009
Date of judgment:  10 November 2009