R v Milton - [2009] SASC 44

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MILTON
[2009] SASC 44
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kourakis)
26 February 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT
Appeal - application for extension of time within which to seek permission to appeal against convictions - on 9 June 1989 applicant pleaded guilty to two counts of threatening life and one count of common assault - applicant sentenced to a suspended term of imprisonment - extension of time refused by Judge of Supreme Court - application renewed to a Full Court - whether a miscarriage of justice occurred - whether appeal would have any prospects of success.
Held: application for extension of time refused.
R v Parenzee (2007) 101 SASR 456; R v Collis (1989) 43 A Crim R 371; R v Liberti (1991) 55 A Crim R 120; R v Moxham (2000) 112 A Crim R 142; R v Clayton (1984) 35 SASR 232; R v Roach (1990) 54 SASR 491; Hinton v O’Dea (1977) 16 SASR 234; R v Brooks (2006) 95 SASR 369; R v Pugh (2005) 158 A Crim R 302; R v Frantzis (1996) 66 SASR 558; Meissner v The Queen (1994-1995) 184 CLR 132; Maxwell v The Queen (1996) 184 CLR 501; R v Murphy [1965] VR 187; R v Day (2002) 82 SASR 85; Day v Police (2005) 92 SASR 1, considered.

R v MILTON
[2009] SASC 44
Court of Criminal Appeal Gray, Sulan and Kourakis JJ
THE COURT

This is an application for an extension of time in which to seek permission to appeal against convictions recorded two decades ago.
Introduction
On 8 December 2008, an extension of time was refused by a Judge of this Court. The learned Judge observed:
Mr Milton, I have given you plenty of opportunity to explain the background to me and I want you to understand that I am not here to give any opinion on the dispute that you have had, I am here simply to see whether the leave of the court should be granted to allow you to proceed with this matter and I regret to say that there is no possibility of that happening. I have read through your reasons in the document that you have provided to the court and there is no legal basis upon which I can extend time within which to appeal, so the application for an extension of time within which to appeal will be refused on the basis that the documents before me disclose no basis upon which the court could…

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 Milton

Details

AGLC: R v Milton [2009] SASC 44
Case: [2009] SASC 44
Decision Date: 26 February 2009

CaseChat Overview and Summary

In the matter of R v Milton, the appellant, represented by legal counsel, sought an extension of time to appeal against his conviction. The appellant had previously pleaded guilty to two counts of threatening life and one count of assault on 9 June 1989. The legal issues before the court included whether there was a miscarriage of justice in requiring the plea to stand and whether the appeal would have any prospects of success. The appellant argued that he had not fully appreciated the consequences of his plea at the time of entering it, and that there was a serious matter to be tried. The court was tasked with determining whether these arguments warranted an extension of time to seek permission to appeal.

The court considered the arguments presented by the appellant and the material placed before it. The appellant had pleaded guilty almost 20 years ago, with legal representation, and had acknowledged his guilt through his counsel. The court noted that there was no evidence suggesting that the appellant did not fully appreciate the consequences of his plea or that there was a serious matter to be tried. Furthermore, the court found that none of the matters raised by the appellant supported a submission that there was a serious matter to be tried or that the elements of either of the offences to which he pleaded guilty could not be made out. The court concluded that there was no miscarriage of justice in requiring the plea to stand and that the appeal would have no prospect of success.

Based on the court's findings, the application for an extension of time to seek permission to appeal against the convictions was refused. The court held that there was nothing in the material placed before it that would suggest that any appeal, if permission were to be granted, would have any prospect of success. Consequently, the application to extend time was denied. The court's decision was based on the principle that any appeal would have no prospect of success, given the appellant's acknowledgment of guilt and the absence of any evidence suggesting a miscarriage of justice or a serious matter to be tried.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Nothing in the grounds filed by Mr Milton supports a submission that there would be a miscarriage of justice in requiring the plea to stand. None of the matters raised by Mr Milton in his outline support a submission that there is a serious matter to be tried or that the elements of either of the offences to which he pleaded guilty could not be made out.Conclusion On 9 June 1989, almost 20 years ago, the applicant represented by legal counsel, pleaded guilty to the two counts of threatening life and the one count of assault. Through his counsel he acknowledged his guilt. He tendered to the sentencing Judge a psychiatric report that contained a history consistent with and confirming the appropriateness of his pleas. He was sentenced to a suspended term of imprisonment and complied with the terms of his suspended sentence bond. There is nothing in the material placed before the Court by the applicant that would suggest that any appeal, if permission were to be granted, would have any prospect of success. In these circumstances the application to extend time should be refused primarily on the ground that any appeal would have no prospect of success. This application is refused.

Ratio Decidendi

Legal Principle Established

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