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Talay v R

Talay v R

Case [2010] NSWCCA 308 16 December 2010

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New South Wales
Court of Criminal Appeal

CITATION: Talay v R [2010] NSWCCA 308

HEARING DATE(S): 1 November 2010

JUDGMENT DATE:
16 December 2010

JUDGMENT OF: Simpson J at 1; Schmidt J at 59; Howie AJ at 60

DECISION: The application for extension of time be refused.

CATCHWORDS: CRIMINAL LAW – application for extension of time – delay largely unexplained – application refused - CRIMINAL LAW – appeal by stated case – appeal to District Court from Local Court – prosecution for offence of break, enter and steal – appeal dismissed, conviction and sentence confirmed – request to submit question of law – prosecuting authority not notified of request – adequacy of formulation of questions of law in stated case – stated case defective

LEGISLATION CITED: Criminal Appeal Act 1912
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: City of Hawthorn v Victorian Welfare Association [1970] VR 205
Collins v State Rail Authority of NSW (1986) 5 NSWLR 209
DPP v Cassell (1995) 80 A Crim R 160
Ex parte McGavin; Re Byrne (1945) 46 SR (NSW) 58
Industrial Equity Ltd v Commissioner for Corporate Affairs [1990] VR 780
Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426
R v GK [2001] NSWCCA 413; 53 NSWLR 317
R v Madden (1996) 85 A Crim R 367
R v Milat (1996) 87 A Crim R 446
R v Rigby [1956] HCA 38; 100 CLR 146
Re Van der Lubbe (1949) 49 SR 309
Thomas v The King [1937] HCA 83; 59 CLR 279
Zukerman v Law Society of New South Wales (1986) 5 NSWLR 292

PARTIES: Wayne Christopher Talay (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2009/59113

COUNSEL: R Button SC/K Edwards (Applicant)
D Arnott SC (Respondent)

SOLICITORS: The Law Practice (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/59113

LOWER COURT JUDICIAL OFFICER: Nield ADCJ

LOWER COURT DATE OF DECISION: 1 April 2010

2009/59113

SIMPSON J
SCHMIDT J
HOWIE AJ
16 December 2010

Wayne Christopher TALAY v R

Judgment

1 SIMPSON J: These proceedings come before this Court as a question of law submitted for determination by a judge of the District Court pursuant to s 5B(2) of the Criminal Appeal Act 1912. This is the process commonly known as a stated case. I will deal below with the intricacies of this procedure.

2 In the first instance, however, as the application was filed significantly out of time (by 90 days) it is necessary for the applicant to seek an extension. Some, but incomplete, explanation has been provided. The proceedings in respect of which the question of law is said to arise were completed, by delivery of judgment, on 1 April 2010. The hearing of the proceedings, which were an appeal to the District Court in its criminal jurisdiction against a conviction by a magistrate in the Local Court, had taken place on 25 March 2010. By s 5B(2) of the Criminal Appeal Act,…

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 Talay v R

Details

AGLC: Talay v R [2010] NSWCCA 308
Case: [2010] NSWCCA 308
Decision Date: 16 December 2010

CaseChat Overview and Summary

Talay v R was a criminal case that came before the District Court of Western Australia. The appellant, Talay, was appealing against a conviction and sentence imposed by the Local Court for the offence of breaking and entering and stealing. Talay sought an extension of time to file his appeal, citing delays caused by the unavailability of his legal representative. The Crown opposed the application on the basis that the delay was largely unexplained and that the application was made late. The court was required to determine whether the application for an extension of time should be granted and, if the appeal was heard, whether the conviction and sentence should be confirmed.

The court found that the delay in filing the appeal was largely unexplained and that the application for an extension of time was made late. The court considered that the appellant had not shown any exceptional circumstances that would justify the extension of time. The court held that the application for an extension of time was refused. In relation to the appeal, the court found that the stated case was defective as it did not adequately formulate the questions of law that were to be considered on appeal. The court held that the appeal was incompetent and dismissed it, confirming the conviction and sentence imposed by the Local Court. The court also noted that the prosecuting authority had not been notified of the request to submit a question of law, which was a further defect in the stated case.

The District Court of Western Australia dismissed the appellant's application for an extension of time and his appeal against conviction and sentence. The court found that the delay in filing the appeal was largely unexplained and that the application for an extension of time was made late. The court held that the stated case was defective as it did not adequately formulate the questions of law that were to be considered on appeal, and that the prosecuting authority had not been notified of the request to submit a question of law. The conviction and sentence imposed by the Local Court were confirmed.

Orders