R v Nicholas; R v Palmer

[2019] ACTCA 38

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

R v Nicholas; R v Palmer

Citation:

[2019] ACTCA 38

Hearing Date:

4 April 2019

DecisionDate:

4 April 2019

Before:

Burns J

Decision:

See [5]

Catchwords:

APPEAL – Application for leave out of time – consideration of the interests of justice – no suggestion of any prejudice

Parties:

The Queen (Appellant)

Daniel James Nicholas (Respondent)

Paul Arthur Palmer (Respondent)

Representation:

Counsel

K Lee (Appellant)

D Perkins (Respondent Nicholas)

D Rutherford (Respondent Palmer)

Solicitors

ACT Director of Public Prosecutions (Appellant)

Darryl Perkins Solicitors (Respondent Nicholas)

Aboriginal Legal Services (Respondent Palmer)

File Number:

ACTCA 9 of 2019

Decision under appeal: 

Court/Tribunal:             ACT Supreme Court

Before:  Elkaim J

Date of Decision:         7 February 2019

Case Title:  R v Nicholas; R v Palmer

Citation: [2019] ACTSC 16

BURNS J

1. In this matter, I am satisfied that there is an explanation which has been provided for the failure by the Crown to lodge notices of appeal with respect to these matters within the periods that are prescribed by law. The explanation perhaps does little credit to the Office of the Director of Public Prosecutions (DPP), but the simple fact is that there are only a few days between the expiration of the prescribed period and the application made by the DPP for leave to appeal out of time.

1. There is no suggestion that there has been any prejudice to either of the respondents as a consequence of the delay in this matter.

1. I have been taken to the sentences imposed by the primary judge. I am satisfied that it is arguable that individual sentences were manifestly inadequate, that it is arguable that the structure of the aggregate sentence imposed by the primary judge was inappropriate, and that the total aggregate sentence imposed by his Honour was also manifestly inadequate.

1. In those circumstances, I am satisfied that the interests of justice dictate that the applications be allowed.

1. The formal order is that in each case the applicant be given leave to appeal out of time against the judgment of Elkaim J given on 7 February 2019, and any notice of appeal is to be filed by the close of business on Monday, 8 April 2019.

I certify that the preceding five [5] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: