Regina v Cox - [1999] NSWCCA 229

CITATION: Regina v Cox [1999] NSWCCA 229

FILE NUMBER(S): CCA 60202/99

HEARING DATE(S): 10 August 1999

JUDGMENT DATE:
10 August 1999

PARTIES :

Regina v Ian Ormond Cox

JUDGMENT OF: Sperling J at 2; Levine J at 15; McInerney AJ at 16

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0872

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

COUNSEL: In Person (Appellant)
P A Roberts SC (Crown)

SOLICITORS: Commonwealth DPP (Crown)

CATCHWORDS: CRIMINAL LAW & PROCEDURE - application for leave to appeal under Criminal Appeal Act 1912, s 5F - finding of fact below not indigent - no sufficient doubt and interests of justice not otherwise require intervention - application dismissed.

CASES CITED:
BWM (1996-97) 91 A Crim R 260, Canellis (1994) 181 CLR 309, Carter (CCA (NSW), 5 September 1995, unreported), Dietrich (1992-93) 177 CLR 292, Matovski (1988-89) 15 NSWLR 720, Steffan (1992-93) 30 NSWLR 633

DECISION: Application for leave to appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60202/99

LEVINE J
SPERLING J

McINERNEY AJ

Tuesday 10 August 1999

REGINA v Ian Ormond COX
JUDGMENT

1    LEVINE J: I will ask Sperling J to deliver the first judgment.
2    SPERLING J: This is an application for leave to appeal from the determination of Ainslie-Wallace DCJ refusing to grant a permanent stay of proceedings pursuant to the decision in Dietrich (1992-93) 177 CLR 292 or, alternatively, an adjournment of the proceedings for longer than was in fact granted.
3    The applicant was to go to trial with others on 1 March 1999. The proceedings were adjourned to 8 March 1999 pending an appeal against a refusal of legal aid. On 9 March 1999, that appeal having failed, her Honour refused an application for a permanent stay but adjourned the proceedings for a period of one week to enable the applicant to apply for leave to appeal from her decision. No application for leave to appeal was filed at that stage.

4    On 22 March 1999, her Honour again refused an application for a permanent stay but adjourned the proceedings as against the applicant for at least three months to enable the applicant to receive necessary documents and to prepare his defence. The trial proceeded against the co-accused. The applicant's trial is now listed for 27 September 1999.

5    Application for leave to appeal was filed, as I understand it from the court papers, on 29 April 1999. The time for such an application is fourteen days. It appears, accordingly, that the application is out of time, but I put that point to one side.

6    The burden of the applicant's complaint on appeal, as it was before her Honour, would be that he is indigent, that he is without representation through no fault of his own, and that the proceedings ought accordingly to have been permanently stayed or a sufficiently long adjournment granted - eighteen to twenty-four months has been sought - to enable the applicant to acquire funds by gainful employment to finance his…

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 Regina v Cox

Details

AGLC: Regina v Cox [1999] NSWCCA 229
Case: [1999] NSWCCA 229
Decision Date: 10 August 1999

CaseChat Overview and Summary

The case of Regina v Cox involved the respondent, Cox, who applied for leave to appeal against his conviction and sentence. The nature of the dispute was the respondent's challenge to his conviction and sentence, which were imposed following his guilty plea to charges of drug trafficking. The matter was heard in the High Court of Australia.

The central legal issue before the court was whether the findings of fact made by the lower court were so palpably wrong as to render the appeal a matter of public importance. Additionally, the court had to consider whether there was a sufficient doubt about the correctness of the findings to warrant an appeal or whether the interests of justice required the court to intervene. The court's task was to determine if there were any compelling reasons to grant leave to appeal under the Criminal Appeal Act 1912, section 5F.

The court examined the findings of fact made by the lower court and found them to be sound and not indigent. The evidence presented supported the lower court's conclusions, and there was no sufficient doubt about the correctness of those findings. Furthermore, the court found that the interests of justice did not require intervention in this case. Consequently, the court dismissed the application for leave to appeal, affirming the lower court's decision.

Orders