Spencer v R

[2001] NTCCA 7

Spencer v R [2001] NTCCA 7

PARTIES:SPENCER, Bryce Jabaltjari

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

FILE NO:CCA 15 of 2001

DELIVERED:  22 October 2001

JUDGMENT OF:  MARTIN CJ

REPRESENTATION:

Counsel:

Applicant:R R Goldflam

Respondent:  M J Carey

Solicitors:

Applicant:NTLAC

Respondent:  DPP

Judgment category classification:    C

Judgment ID Number:  mar0128

Number of pages:  3

Mar0128

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA

Spencer v R [2001] NTCCA 7
No. CCA 15 of 2001

BETWEEN:

BRYCE JABALTJARI SPENCER

Appellant

AND:

THE QUEEN

Respondent

CORAM:    MARTIN CJ

REASONS FOR JUDGMENT

(Delivered 22 October 2001)

1. This is an application for leave to appeal against a conviction brought pursuant to Pt 3 of O 86 of the Supreme Court Rules. It finds its place in ch 2 of those Rules. Given the procedural difficulties which have arisen and which might be expected to arise in other like applications, I bear in mind that the Court might dispense with compliance with the requirements of ch 2 (r 81A.02), and certain of the rules relating to relief from time limits contained in r 3 also apply (r 81A.04).

1. The applicant was convicted of murder after trial by jury on 24 July 2001.  The application for leave to appeal was filed within time, (but returned for correction of a formal matter which was quickly corrected).  There is no complaint on the part of the Director that it was not filed and served within the time prescribed by s 417(1) of the Criminal Code 1983 (NT).  The court may extend time for the filing of the application, s 417(2) and r 86.11, but is otherwise silent as to time limits. 

2. Procedural problems have arisen in relation to the filing of the required affidavit stating the nature of the appeal, the question involved and the reason why leave should be granted, r 86.10(2), see Rostrom v R (1991) 1 NTLR 191 at 195.

3. In an affidavit sworn on 16 August and filed with the application, the solicitor for the applicant deposed that if the applicant was granted leave to appeal the ground would be that the verdict was unsafe and unsatisfactory.  That did not comply with the requirements of the rule, but it was then indicated by the solicitor that particulars would be provided and further grounds added once counsel’s advice had been received.  Counsel had been briefed on 27 July, but an opinion not received at the time of the swearing of the affidavit.  The solicitor deposed that he had not been able to provide a copy of the transcript of the trial Judge’s summing up to counsel until 14 August, although he had ordered it on 26 July.  The delay is not explained.

4. In his letter to the Registrar with the documents the solicitor requested that the application not be put before a Judge for consideration until a further affidavit was filed.  I think the better course would have been for the matter to be brought to the attention of a Judge so that after hearing anything the Director might have to say a decision could be made as to the extension of time for filing an affidavit.

5. Those representing the applicant, however, proceeded to file a further application for leave on 12 September, well outside the time limit for the making of such an application.  It was accompanied by an application for an extension of time within which to file the application for leave and an affidavit complying with the rule.  I do not consider that any further application for leave was required, the difficulties with time to which I have already referred would have been better dealt with in the manner suggested.

6. I have treated the original application for leave to appeal as the initiating process.  Time for filing the affidavit in support is extended to the date upon which the affidavit of 12 September was filed and served.

7. An affidavit was filed on behalf of the Director on 10 October, outside the prescribed time.  Given the extensive proposed grounds of appeal and the necessity to review the learned trial Judge’s summing up in that light, I extend the time for the filing of that affidavit to the date upon which it was filed.

8. Having considered all the material leave is granted to appeal on all grounds specified in Annexure A to the affidavit of Russell Raymond Goldflam sworn on 12 September 2001.

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