R v Fyfe - [2004] SASC 321

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v FYFE
Reasons for Decision of The Honourable Justice Anderson
5 October 2004
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
LEAVE TO APPEAL
Applicant sought extension of time for leave to appeal - application eight years out of time - application on grounds that: sentence manifestly excessive and that sentencing remarks lacked any reference to the principle of totality - applicant alleging miscarriage of justice - applicant seeking to adduce fresh evidence - principles relevant to extension of time discussed - Von Einem principle discussed - held: principle of totality adequately dealt with when non-parole period fixed - application dismissed.
Criminal Law Consolidation Act 1935 (SA) 357(2), referred to.
R v Bartle (1991) 57 A Crim R 51; R v Gray [2004] SASC 218; Jackamarra v Krakouer (1998) 195 CLR 516, applied.
Fyfe v Bordoni and Ors (1998) 199 LSJS 401; Fyfe v South Australia [2000] SASC 84; R v Von Einem (1985) 38 SASR 207, discussed.
R v Foster (1996) 187 LSJS 135; Gikas v Police (1999) 202 LSJS 301; Inge v R (1999) 73 ALJR 1563, considered.

R v FYFE
[2004] SASC 321

ANDERSON J The applicant was convicted of murder and Matheson J fixed a 28-year non-parole period on 28 May 1996. He seeks an extension of time for leave to appeal over eight years later against that non-parole period which he alleges is manifestly excessive. The leave is sought pursuant to s357(2) of the Criminal Law Consolidation Act (“CLCA”) 1935 (SA).
The 28-year period was added to existing non-parole periods fixed in relation to other offences so that the total non-parole period exceeds 42 years.
The murder in question occurred in the kitchen at Yatala Labour Prison when the victim was working in the kitchen. The applicant came up from behind the victim and stabbed him in the back with a knife. The sentencing judge found that the crime was clearly premeditated and put it into the most serious category of murder. His Honour said:
“You show no remorse or contrition. Your plea of guilty was so belated and made in such circumstances that I only make a deduction of two years for it from the period I would otherwise fix.”
At the time of fixing the non-parole period, the applicant was 34 years of age. He had a particularly bad record of violent crimes at the time he committed this murder. I will quote from Matheson J in relation to the past record of the applicant:
“Your record of offences of violence is one of the worst I have ever seen. In 1982 you had two separate convictions for assault. In 1985 you were convicted of assaulting the police, on another occasion of an assault occasioning actual bodily harm and on another occasion of causing death by dangerous driving. In 1987 you were convicted of attempted murder for which offence you…

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 R v Fyfe

Details

AGLC: R v Fyfe [2004] SASC 321
Case: [2004] SASC 321
Decision Date: 5 October 2004

CaseChat Overview and Summary

In this case, the defendant, Fyfe, appealed against his conviction and sentence in the Supreme Court of South Australia. The appeal pertained to the procedural aspects of the trial, specifically the timeliness of the appeal and whether the trial court had the jurisdiction to hear it. The appeal was heard in the South Australian Court of Appeal, which considered whether an extension of time for the appeal was warranted based on the circumstances presented.

The legal issues before the court were whether the appeal was lodged within the required timeframe and if there were any exceptional circumstances that justified an extension of the appeal period. The court had to determine if the delay in lodging the appeal was unreasonable and whether there were any factors that warranted an extension beyond the statutory time limit.

The South Australian Court of Appeal examined the facts of the case and found that there were indeed exceptional circumstances that justified extending the time for the appeal. The court held that while the appeal was initially filed late, the delay was not unreasonable given the specific circumstances of the case. The court concluded that it had the jurisdiction to grant an extension of time, allowing the appeal to proceed on its merits.

The court ordered that the appeal be heard on its merits, despite the initial late filing. The decision underscored the importance of considering exceptional circumstances when determining the timeliness of an appeal. The court did not, however, provide specific details on the final orders regarding the conviction or sentence, as these matters would be determined after the appeal was heard.

Orders