Kearns v The Queen [2004] HCATrans 553 (10 December 2004)

--

Kearns v The Queen [2004] HCATrans 553 (10 December 2004)

Last Updated: 18 January 2005

[2004] HCATrans 553

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S636 of 2003

B e t w e e n -

JAMES GORDON KEARNS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 2004, AT 12.41 PM

Copyright in the High Court of Australia

MR D JORDAN: May it please the Court, I appear for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

KIRBY J: Mr Jordan, you are appearing for the prosecution and I understand Mr Kearns is not going to be present today.

MR JORDAN: Yes, your Honour.

KIRBY J: So the Court has considered this matter which will be dealt with on the papers.

MR JORDAN: May it please the Court.

KIRBY J: You may sit down.

KIRBY J: The applicant, at the time a solicitor, was found guilty of nine counts of fraud laid under the Crimes Act 1900 (NSW), sections 178BA and 178BB, and the Corporations Law 1991, sections 232(6) and 1317(1).

In the District Court of New South Wales, Judge Dodd sentenced him to imprisonment in a total aggregate of six years with an effective non-parole period of four and a half years.

The applicant seeks special leave to contest his conviction on the ground that Judge Dodd should have disqualified himself for imputed bias on the basis that he had presided over the trial of Mr Damien Parkes, who was convicted of similar offences in the same district. In that trial the judge referred to the applicant on a number of occasions.

The Court of Appeal of New South Wales rejected the complaint of imputed bias. It applied the correct principles of law as stated by this Court in cases such as Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488. There is no merit in this point.

The applicant also seeks leave to challenge the sentence. Numerous specific points were made. Many related to the interaction of federal and State sentencing law. We are not convinced that any of the grounds of complaint have substance. There was a typographical slip in the commencement date of the sentence in respect of count 4. This is acknowledged by the prosecution. However, the nature of the error is clear enough when compared with the details appearing on the indictment as noted by the sentencing judge. The Court is informed that, in the Court of Criminal Appeal, the applicant’s counsel correctly accepted the mistake.

None of the other objections to the sentence attract the grant of special leave. We are not convinced that a miscarriage of justice has occurred. Special leave to appeal is refused.

AT 12.43 PM THE MATTER WAS CONCLUDED