R v Mt - [2013] ACTSC 152

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
DEWSEN
Applicant
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…

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 Mt

Details

AGLC: R v Mt [2013] ACTSC 252
Case: [2013] ACTSC 152
Decision Date: 29 November 2013

CaseChat Overview and Summary

The case of R v Mt involved an appeal against conviction in the Magistrates Court of Victoria. The applicant, Mt, was self-represented and sought leave to appeal out of time against a conviction for an offence under the Crimes Act 1958 (Vic). The application was made outside the statutory time limit for appeals, requiring special leave to be granted. The matter was heard in the Supreme Court of Victoria, where the applicant sought to argue that the conviction should be quashed due to alleged errors in the trial process.

The primary legal issue before the court was whether the applicant had reasonable prospects of success on appeal. The court had to consider the merits of the application for special leave to appeal and whether any grounds of appeal had been adequately presented. The applicant had previously made a similar application which was dismissed by another judge, raising the additional issue of whether this was an abuse of process to resubmit the same application.

In assessing the application, the court found that the applicant had not identified any grounds of appeal in the material before it that would warrant special leave to appeal. The court observed that the application appeared to be a reiteration of the same issues already considered and dismissed by another judge. Given the lack of new grounds of appeal and the apparent abuse of process, the court dismissed the application for leave to appeal out of time. Consequently, the application to stay the proceedings was also dismissed.

Orders

Orders of the court

1. The application made by the accused to stay proceedings be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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