Zonneveld v The Queen - [2018] ACTCA 29

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Zonneveld v The Queen

Citation:

[2018] ACTCA 29

Hearing Date:

4 April 2018

Decision Date:

5 April 2018

Reasons Date:

10 July 2018

Before:

Burns ACJ

Decision:

See [21]

Catchwords:

CRIMINAL LAW – Application for extension of time – application for leave to appeal – application for stay of proceedings – charge of one count of conspiracy to perform an act or acts of bestiality – indictment severed – applicant sought particulars – application for stay – quantum of costs – whether applicant had an arguable case for relief

Legislation Cited:

Crimes Act 1900 (ACT) s 63A

Crimes Act 1900 (NSW)

Criminal Code 2002 (ACT) s 48

Cases Cited:

Barton v The Queen (1980) 147 CLR 75

Dietrich v The Queen (1992) 177 CLR 292

Jago v District Court of New South Wales (1989) 168 CLR 23

Petroulias v The Queen [2007] NSWCCA 154; 176 A Crim R 302

R v Bui [2011] ACTSC 102; 5 ACTLR 230

R v Fisher [2003] NSWCCA 41; 56 NSWLR 625

R v Martinello [2005] ACTSC 9

R v Mosely (1992) 28 NSWLR 735

R v Upton [2005] ACTSC 52

Parties:

Mark Zonneveld (Applicant)

The Queen (Respondent)

Representation:

Counsel

Mr K Ginges (Applicant)

Mr J White (Respondent)

Solicitors

Aulich Criminal Law (Applicant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 15 of 2018

Decision under appeal:

Court: ACT Supreme Court

Before: Murrell CJ

Date of Decision: 16 March 2018

Case Title: R v Zonneveld

Court File Number: SCC 286 of 2016

BURNS J:

1. By an application dated 27 March 2018 the applicant, Mark Adam Zonneveld, sought orders extending time for leave to appeal from a decision of Murrell CJ handed down on 16 March 2018, leave to appeal from that decision and a stay of proceedings in SCC 286 of 2016 until such time as the appeal was determined. On 5 April 2018 I granted the orders sought by the applicant, and indicated that I would publish my reasons in due course. These are those reasons.

Proceedings SCC 286 of 2016

2. The applicant is charged with one count of conspiracy to perform an act or acts of bestiality contrary to s 63A of the Crimes Act 1900 (ACT) (Crimes Act) in conjunction with s 48 of the Criminal Code 2002 (ACT).
3. The applicant was originally charged on 7 June 2016 with a substantive offence of engaging in a sexual activity with an animal, contrary to s 63A of the Crimes Act. The charge did not provide any particulars of the alleged act, such as the nature of the act or where it was alleged to have occurred. The charge alleged that the offence occurred between 7 July 2012 and 8 February 2015.
4. The applicant was committed for trial on 16 December 2016. The indictment filed by the Crown on 24 April 2017 was a joint indictment containing, inter alia, three counts…

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 Zonneveld v The Queen

Details

AGLC: Zonneveld v The Queen [2018] ACTCA 29
Case: [2018] ACTCA 29
Decision Date: 5 April 2018

CaseChat Overview and Summary

This matter concerned an application by the applicant, Zonneveld, for an extension of time to seek leave to appeal against a decision of the Supreme Court of Queensland. The applicant was facing a charge of conspiracy to perform an act or acts of bestiality, following the severance of an indictment. The applicant had previously sought particulars and an application for a stay of proceedings, which had been dismissed by the primary judge.

The central legal issues before the Court of Appeal were whether the applicant had an arguable case for relief, specifically in relation to the dismissal of his application for a stay of proceedings, and whether an extension of time should be granted to permit an appeal against that dismissal. The applicant contended that the primary judge erred in dismissing his application for a stay.

Burns ACJ considered the applicant's prospects of success on appeal. His Honour noted that the applicant had not demonstrated that the primary judge had made an error in exercising their discretion to refuse the stay. The applicant's arguments regarding the alleged lack of particulars and the perceived unfairness of the proceedings were found to be insufficient to establish an arguable case for relief. Consequently, the application for an extension of time was dismissed.

Orders