Regina v Ed - [2003] NSWCCA 255

CITATION: Regina v ED [2003] NSWCCA 255

HEARING DATE(S): 11/09/03

JUDGMENT DATE:
11 September 2003

JUDGMENT OF: Spigelman CJ at 23, 25; Hidden J at 1; Greg James J at 24

DECISION: Application refused.

CATCHWORDS: CRIMINAL LAW: Application to extend time to appeal against conviction and sentence - 46 years out of time - sentence long since served - whether interests of justice required leave.

CASES CITED: R v Gregory [2002] NSWCCA 199

PARTIES :
Regina
ED

FILE NUMBER(S): CCA 60150/2003

COUNSEL: M Grogan - Crown
Applicant in Person

SOLICITORS: CK Smith - Crown
Applicant in Person

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 12/06/1957

LOWER COURT
JUDICIAL OFFICER : Clegg DCJ

60150/03

SPIGELMAN CJ
HIDDEN J
GREG JAMES J
Thursday, 11 September, 2003

REGINA v ED

JUDGMENT

1 HIDDEN J: It is not often that this Court is asked to review proceedings that are getting on to 50 years old. On 12 June 1957 the applicant was tried before the late Judge Clegg, sitting as a Chairman of Quarter Sessions, upon a charge of stealing a motor vehicle. On the same day the jury found him guilty and his Honour sentenced him to imprisonment for three years. He wishes to appeal against his conviction and sentence and seeks leave to do so out of time. He instituted the present proceedings, almost 46 years after his trial, by a notice of appeal filed on 8 April 2003 and a notice of application for extension of time filed a month later.

2 He was charged with the theft of an MG roadster from Edgecliff on or about 4 May 1956. The owner of the vehicle had parked it outside his residence on the evening of 4 May, only to find that it had disappeared the following morning. It was recovered about a month later at Coolangatta.

3 The applicant was charged with the offence about seven months later, on 16 January 1957. The Crown case against him was founded upon admissions he was alleged to have made that day to Detective Constable McEntee, in the company of Detective Constable Dooley, at Paddington Police Station. The effect of those admissions was that he was at the scene of the theft with an accomplice named William Coote, who took the car, while another accomplice, Roy French, was keeping watch down the road. The three men then travelled to Coolangatta, with Coote driving. They abandoned the car there and returned to Sydney by train.

4 The only witnesses in the Crown case were the owner of the vehicle and the two police officers to whom I have referred. The defence case consisted of a brief unsworn statement by the applicant in which he denied having been involved in the theft of the car and having made the admissions attributed to him.

5 The applicant was represented by a solicitor at his trial but is unrepresented in this Court. He has supplied some additional evidentiary material, together with lengthy written submissions. He has expanded…

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 Ed

Details

AGLC: Regina v Ed [2003] NSWCCA 255
Case: [2003] NSWCCA 255
Decision Date: 11 September 2003

CaseChat Overview and Summary

Regina v Ed was a case heard in the High Court of Australia. The applicant, Ed, sought to appeal against his conviction and sentence for a crime committed over 46 years prior. The sentence had long since been served, but Ed contended that the interests of justice required the court to grant leave for an out-of-time appeal. The central issue before the court was whether the applicant's appeal was in the interests of justice given the significant delay in lodging it.

The court examined the factors relevant to determining whether an out-of-time appeal should be allowed. These factors included the length of the delay, the reasons for the delay, whether the delay had caused any prejudice to the respondent, and whether there were any exceptional circumstances justifying the late appeal. The court also considered the principle that an appeal is fundamentally a matter of justice and discretion, and that the court should not be overly rigid in applying the statutory time limits for appeals.

The court concluded that the significant delay in lodging the appeal, coupled with the fact that the sentence had long since been served, weighed heavily against granting leave for the appeal. The applicant had not provided any satisfactory explanation for the delay, and no exceptional circumstances had been demonstrated that would justify the late appeal. The court found that allowing the appeal would not serve the interests of justice, given the passage of time and the lack of any demonstrated prejudice to the respondent. The court ultimately dismissed the application for leave to appeal out of time.

The court made an order that the application for leave to appeal out of time was dismissed, and no further appeal could be made in relation to the conviction and sentence.

Orders