R v Mt
[2013] ACTSC 152
•29 November 2013
MICHAEL ROBERT DEWSEN v FRASER JAMES MACDONALD
[2013] ACTSC 252 (29 November 2013)
APPEAL AND NEW TRIAL – application for leave to appeal out of time from Magistrates Court – appeal against conviction – self represented litigant – whether applicant has reasonable prospects of success – no grounds of appeal revealed in material before Court
PRACTICE AND PROCEDURE – Abuse of Process – application for leave to appeal out of time from Magistrates Court – applicant putting on same application as already determined by different judge of this court
Evidence Act 2011 (ACT), s 165
Dewson v Macdonald [2013] ACTSC 112
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 95 of 2013
Judge: Burns J
Supreme Court of the ACT
Date: 29 November 2013
IN THE SUPREME COURT OF THE )
) No. SCA 95 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: MICHAEL ROBERT
DEWSENApplicant
v
AND:FRASER JAMES
MACDONALD
Respondent
ORDER
Judge:Burns J
Date:29 November 2013
Place:Canberra
THE COURT ORDERS THAT:
The application for leave to appeal out of time lodged 15 November 2013 is refused.
This is an application for leave to appeal out of time. There is very little information in support of the application.
The Court Registry appears to have had a difficulty in reading the applicant, Mr Dewson’s, handwriting leading to him having been incorrectly identified as a “Michael Robert Dewsen” and a file made up with that name.
The applicant was convicted in respect of a charge of common assault in the Magistrates Court on 11 September 2012. By Notice of Appeal lodged 15 November 2013 he seeks to appeal that conviction.
The applicant’s version of the events relating to the charge given before me was:
I went around to XX Sinclair Street on 21 October 2011. I knocked on the door. And male occupant answered the door holding what I called a shotgun. He then came towards me then I then hit him with a single blow. Single defensive blow.
The prosecution’s case as summarised by counsel for the respondent before me was:
The prosecution's case as I apprehend it was that there was a fallout between the appellant's daughter and one of the Dove family, the Dove family being the residence [sic] that was attended by the appellant, and that one of the Doves opened the door and was essentially king hit and as a result of that stumbled back into the house and another member of the family got a rifle and, in essence, directed the appellant to leave the premises.
The applicant needs to establish in these proceedings that he has reasonable prospects of success with respect to any proposed appeal. And in that regard I would need to know what his grounds of appeal are and that is something which is not set out in the proposed Notice of Appeal. I would also need to have some explanation as to why he did not lodge his appeal within time, and again that is something which does not seem to be referred to in any of the material that he has lodged in this application.
The applicant argued before me that certain evidence should be excluded under s 165 of the Evidence Act 2011 (ACT). Section 165 merely provides that where there is a jury and there is unreliable evidence, the judge must warn the jury that the evidence may be unreliable and tell the jury about matters that may make it unreliable.
Now, of course, there was no jury in the Magistrates Court, but in any event, the Magistrate was entitled to take into account any issue relating to the reliability of that material and the applicant’s counsel had an opportunity to address her on that issue about the unreliability of that material. The applicant raised other issues he had with the presentation of evidence at his trial and alleged differences between evidence in his trial and a trial with a different accused but related facts.
However, earlier this year the applicant lodged another application for leave to appeal outside of time from his conviction on 11 November 2013.
That application came before Nield AJ and his Honour took an opportunity to read the material that was provided to him and he came back and rejected the application for leave to appeal out of time: Dewson v Macdonald [2013] ACTSC 112. The applicant has not appealed against this order, but now seeks to re-agitate the same application in front of a different judge.
The applicant stated he was not aware of what he should do in his circumstances; however, when you take upon yourself the responsibility of acting for yourself, you take upon yourself responsibility for knowing so much of the law and of the processes of the court as will enable you to properly conduct the proceedings.
Now, it appears to me that there are two reasons why the present application should be refused. The first is that the applicant really has not raised any significant issue in terms of a ground of appeal. What he is really saying to me is that he did not like the outcome of the proceedings before the Magistrates Court.
And I note that he was represented by experienced counsel in those proceedings and there was apparently two versions of an event of quite limited scope, that being an altercation between him and another person at the front door of certain premises. The question was whether he was acting in self-defence when he struck a blow or whether he was not.
And it appears that that issue was determined by the learned Magistrate against him, that her Honour determined that he was not acting in self-defence. Nothing that he has put before me today would demonstrate that there was an error in either the finding of fact by the learned Magistrate or alternatively her application of law to those findings of fact.
Secondly, the problem with the present application is that it is a form of abuse of process in that the applicant is seeking to re-litigate something that has already been determined by this court this year, with a decision being handed down by Nield AJ on 7 June this year in which he refused exactly the same application.
I am not suggesting that he pursue this, it is a matter for him ultimately, but I do not suggest he take the following as an encouragement. His remedy, if he had one, was to seek leave to appeal from the decision of Nield AJ rather than to simply recommence the same application in front of a different judge.
I see no alternative other than to refuse the present application for the reasons that I have just given.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 12 December 2013
Counsel for the Applicant: the applicant appeared in person
Counsel for the Respondent: Mr M Fernandez
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of Hearing: 29 November 2013
Date of Judgment: 29 November 2013