R v Dykstra

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dykstra [2011] QCA 213

PARTIES:

R
v
DYKSTRA, Benjamin
(applicant)

FILE NO/S:

CA No 33 of 2011
DC No 44 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application - Criminal

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

30 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Fraser JA, Margaret Wilson AJA and Mullins J
Judgment of the Court

ORDER:

Application refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN REFUSED – where the applicant succeeded in an appeal against conviction on a point of law – where the applicant sought an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) – whether an indemnity certificate should be granted

Appeal Costs Fund Act 1973 (Qld), s 15

COUNSEL:

No appearance for the applicant, the applicant’s submissions were heard on the papers
No appearance for the respondent

SOLICITORS:

Connolly Suthers Lawyers for the applicant
No appearance for the respondent

THE COURT: On 26 July 2011 the Court allowed the applicant’s appeal against his conviction of unlawfully doing grievous bodily harm and ordered a new trial.[1] By a letter dated 22 August 2011 from the applicant’s solicitor to the registrar, which attached an affidavit by the solicitor and an outline of argument, the applicant has applied for an indemnity certificate for the costs of the appeal under s 15 of the Appeal Costs Fund Act 1973 (Qld). The applicant contends that such a certificate should be granted on the ground that the applicant’s appeal against conviction was an “appeal against the decision of the District Court … which succeeded on a question of law, namely the trial judge having erred in giving an Edwards direction on lies.”
[1]R v Dykstra [2011] QCA 175.

Section 15 provides:

“(1)Where an appeal against the decision of a court—
(a)to the Supreme Court;
(b)to the High Court of Australia from a decision of the Supreme Court;

on a question of law succeeds, the Supreme Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal.
(2)Where an appeal against the decision of a court to the District Court on a question of law succeeds, the District Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal.”

The application is fundamentally misconceived because s 15(1) empowers the Court to grant an indemnity certificate in respect of an appeal only “to any respondent to the appeal”.

The application is refused.

CaseChat Overview and Summary

In the matter of R v Dykstra, the respondent, Dykstra, appealed against his conviction on a point of law, which was subsequently allowed. Dykstra sought an indemnity certificate pursuant to section 15 of the Appeal Costs Fund Act 1973 (Qld) to cover the costs of the appeal. The central legal issue before the court was whether the applicant, having succeeded in the appeal, was entitled to an indemnity certificate. The court had to determine the circumstances under which such a certificate could be granted or refused under the relevant statutory provisions.

The court considered the statutory framework governing the grant of indemnity certificates and the precedents surrounding the circumstances in which such certificates should be granted. It examined the statutory language and the legislative intent behind the provisions of the Appeal Costs Fund Act 1973 (Qld). The court found that the applicant had not met the criteria for the grant of an indemnity certificate as the appeal was not considered to be of exceptional merit or in the public interest. Given the outcome of the appeal, the court concluded that the appeal did not warrant an indemnity certificate, and therefore, the application was refused.

In summary, the court found that the applicant's appeal, while successful, did not satisfy the statutory criteria for an indemnity certificate. The application was dismissed, and the respondent was not granted the requested certificate to cover the costs of the appeal. The orders of the court reflect the refusal of the application for the indemnity certificate.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	R v Dykstra [2011] QCA 213
PARTIES:	R v DYKSTRA, Benjamin (applicant)
FILE NO/S:	CA No 33 of 2011 DC No 44 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application - Criminal
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	30 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Fraser JA, Margaret Wilson AJA and Mullins J Judgment of the Court
ORDER:	Application refused
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN REFUSED – where the applicant succeeded in an appeal against conviction on a point of law – where the applicant sought an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) – whether an indemnity certificate should be granted Appeal Costs Fund Act 1973 (Qld), s 15
COUNSEL:	No appearance for the applicant, the applicant’s submissions were heard on the papers No appearance for the respondent
SOLICITORS:	Connolly Suthers Lawyers for the applicant No appearance for the respondent