Will v The Queen - [2020] ACTCA 42

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Will v The Queen
Citation:	[2020] ACTCA 42
Hearing Date:	17 June 2020
DecisionDate:	24 August 2020
Before:	Burns J
Decision:	See [37]
Catchwords:	APPEAL – APPLICATION FOR LEAVE TO APPEAL –Application for leave to appeal out of time – consideration of the reasons for the applicant’s delay in seeking to appeal – whether the respondent will suffer prejudice in any such appeal based on delay – consideration of the prospects of success in the proposed appeal
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 5506, 5510 Crimes (Sentencing) Act 2005 (ACT) ss 35A, 36, 37 Evidence Act 2011 (ACT) s 128
Cases Cited:	Merrilees v The Queen [2014] ACTCA 10 Parker v The Queen [2002] FCAFC 133 R v Cartwright (1989) 17 NSWLR 243 R v Duncan [1998] 3 VR 208 R v El-Sayed [2003] NSWCCA 232; 57 NSWLR 659 R v Kevenaar & Ors [2004] NSWCCA 210; 148 A Crim R 155 R v Kohunui [2009] VSCA 31 R v Nguyen (1989) 50 SASR 361 R v Will [2017] ACTSC 356; 13 ACTLR 81 R v Will [2018] ACTSC 154 Strickland(A Pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53 R v Ngata [2015] ACTSC 356 Urlich v The Queen [2019] ACTCA 30
Parties:	David Allen Will (Applicant) The Queen (Respondent)
Representation:	Counsel K Ginges (Applicant) K Weston-Scheuber (Respondent)
Solicitors McKenna Taylor (Applicant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 14 of 2019
Decision under appeal:	Court/Tribunal: ACT Supreme Court Before: Mossop J Date of Decision: 24 May 2018 Case Title: R v Will Citation: [2018] ACTSC 154

BURNS J:

The applicant is currently serving a term of 10 years and 10 months’ imprisonment, commencing on 24 May 2018 and expiring on 23 March 2029 for an offence of aiding, abetting, counselling or procuring an offence of aggravated robbery which occurred on 10 May 2004. That sentence was imposed by Mossop J on

24 May 2018: [2018] ACTSC 154. The applicant now seeks leave to appeal out of time against the sentence imposed by Mossop J.

Background

The applicant was first charged in the ACT Magistrates Court on 12 December 2014 and was committed for trial on 21 April 2015. His trial was listed to commence on 30 May 2016, but that date was vacated. The applicant then made an application for a permanent stay of the prosecution which was refused by Refshauge J on 29 November 2017: [2017] ACTSC 356; 13 ACTLR 81. The applicant was then scheduled to stand trial on 3 April 2018, but on 26 March 2018 he indicated that he would plead guilty. The trial date was vacated, and on 16 April 2018 he was arraigned and pleaded guilty to the charge for which he was sentenced to imprisonment by Mossop J on 24 May 2018.

On 27 March 2019, the applicant lodged an application under

r 5506 of the Court…

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 Will v The Queen

Details

AGLC: Will v The Queen [2020] ACTCA 42
Case: [2020] ACTCA 42
Decision Date: 24 August 2020

CaseChat Overview and Summary

The applicant, Will, sought leave to appeal out of time against a decision of the respondent, The Queen. The application was heard by Burns J.

The central legal issue before the Court was whether to grant the applicant leave to appeal out of time. This required consideration of the reasons for the applicant's delay in filing the appeal, the potential prejudice to the respondent arising from that delay, and the prospects of success in the proposed appeal.

Burns J considered the principles governing applications for leave to appeal out of time. The Court weighed the applicant's explanation for the delay against the potential prejudice to the respondent and assessed the merits of the intended appeal. The Court's decision would ultimately depend on whether these factors, taken together, justified departing from the usual time limits for bringing an appeal.

Orders

Orders of the court

See [37]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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