Extension of time within which to appeal refused; Appeal dismissed as incompetent
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IN THE COURT OF CRIMINAL APPEAL
No: 060719/97
NEWMAN J STUDDERT J HULME J
Tuesday, 12 October 1999
REGINA -v-James SALEAM
JUDGMENT
1 NEWMAN J: I would ask Mr Justice Hulme to deliver the first judgment.
2 HULME J: On 28 September 1994 the appellant was charged before Judge Viney:-
“For that he between 1 June 1990 and 9 July 1990 did conspire with John Rex Anderson to maliciously damage, by means of fire, a motor vehicle, the property of Peter Coleman”.
3 The appellant pleaded not guilty and the trial, with the consent of the appellant, was by Judge alone. The evidence adduced by the Crown consisted of a number of statements, one by Mr Anderson, one by Mr Coleman and a number by police officers. It also included two affidavits by the appellant and some evidence he had given previously and also included two publications written at least partly by him entitled “We Accuse” and “You’ve Got to be Joking”. There was no cross-examination and no challenge to this evidence. If accepted, it established that the appellant had made an arrangement with Anderson whereby for the sum of $400 the latter would create a “little fire” to cause some damage, but not destroy, Mr Coleman’s car.
4 The appellant made an unsworn statement in which he admitted committing the offence but said he was trapped into doing so by his former wife and, he believed, a fourth person. Not surprisingly, both on the basis of the information contained in the material tendered by the Crown, and on the basis of the appellant’s unsworn statement, he was convicted on 6 October 1994 and sentenced to a minimum term of imprisonment for six months to date from 29 July 1994 and to an additional term of eighteen months during which period he was to be released on parole and supervised by the probation service. In backdating the sentence his Honour took into account approximately two months pre-sentence custody referable only to the subject offence.
5 His Honour found special circumstances, in particular that at the time of sentence the appellant was serving a sentence of a minimum term of three years and six months dating from 9 April 1991 and an additional term of one year for offences of malicious injury to property and possession of a firearm. The appellant was indeed on bail for those offences at the time he committed the offence presently under consideration.
6 The appellant had earlier convictions recorded against him. In…
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.
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Details
AGLC
R v Saleam [1999] NSWCCA 342
Case
[1999] NSWCCA 342
Decision Date
CaseChat Overview and Summary
In the case of R v Saleam, the appellant, James Saleam, was charged with conspiring to maliciously damage a motor vehicle by fire. The trial took place in the District Court, where the appellant was convicted and sentenced. Saleam subsequently appealed to the Court of Criminal Appeal, seeking an extension of time to appeal and the appeal itself. The appeal was dismissed by the Court of Criminal Appeal.
The primary legal issue in this case was whether the appellant was entitled to an extension of time to appeal against his conviction and sentence, given that the notice of appeal was lodged well beyond the statutory period. The Court also needed to determine if the appeal was otherwise valid and if the grounds provided for the extension of time were sufficient.
The Court of Criminal Appeal found that the appellant had admitted to committing the offence and that the sentence had already been served prior to the appeal being lodged. The Court held that the grounds provided for the extension of time were inadequate. The Court emphasised that it exists to hear appeals against convictions or sentences, not to supervise bodies charged with investigating illegal or improper conduct. The Court concluded that even if an extension of time had been granted, the appeal would still have been dismissed as it was based on the appellant's admission of guilt. Therefore, the appeal was dismissed as incompetent.
The Court of Criminal Appeal refused the appellant an extension of time within which to appeal and dismissed the appeal. The orders of the Court were in accordance with the judgment delivered by Justice Hulme.