Application by Alex Jimenez under s 78 Crimes (Appeal and Review) Act 2001 [2016] NSWSC 635

Application by Alex Jimenez under s 78 Crimes (Appeal and Review) Act 2001 [2016] NSWSC 635

The applicant pleaded guilty to possessing child abuse material under s 91H(2) of the Crimes Act 1900 in circumstances where the Local Court, the District Court and the applicant's legal representatives proceeded on the erroneous basis that a child meant a person under 18, whereas s 91FA defined child for that offence as a person under 16. That erroneous approach created a doubt or question as to the applicant's guilt, and because the images were no longer available the Court could not resolve that doubt. The whole case was therefore referred to the Court of Criminal Appeal.

Jurisdiction
Australia
Judgment Date
17 May 2016
Procedural Posture
Application for an Inquiry Into Conviction Under S 78 of the Crimes (appeal and Review) Act 2001 / On the Papers; Application Determined by Referral of the Whole Case to the Court of Criminal Appeal
Outcome
Whole case referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912.
Legal Topics
['inquiry Into Conviction' 'possession of Child Abuse Material' 'guilty Plea Based on Incorrect Legal Advice' 'doubt or Question as to Guilt' 'referral to Court of Criminal Appeal']
['criminal Law' 'criminal Procedure'] ['inquiry Into Conviction' 'possession of Child Abuse Material' 'guilty Plea Based on Incorrect Legal Advice' 'doubt or Question as to Guilt' 'referral to Court of Criminal Appeal']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for an Inquiry Into Conviction Under S 78 of the Crimes (appeal and Review) Act 2001 / On the Papers; Application Determined by Referral of the Whole Case to the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether there appeared to be a doubt or question as to the applicant's guilt within s 79 of the Crimes (Appeal and Review) Act 2001." "Whether the applicant's guilty plea should stand where the Local Court, District Court and legal representatives proceeded on the erroneous basis that a child for s 91H(2) of the Crimes Act 1900 meant a person under 18 rather than under 16." 'Whether the absence of the images meant the Court could not resolve the doubt or question as to guilt.']

Ratio Decidendi

The applicant pleaded guilty to possessing child abuse material under s 91H(2) of the Crimes Act 1900 in circumstances where the Local Court, the District Court and the applicant's legal representatives proceeded on the erroneous basis that a child meant a person under 18, whereas s 91FA defined child for that offence as a person under 16. That erroneous approach created a doubt or question as to the applicant's guilt, and because the images were no longer available the Court could not resolve that doubt. The whole case was therefore referred to the Court of Criminal Appeal.

Court Disposition

Whole case referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912.

Orders

  • ['Pursuant to s 78 of the Crimes (Appeal and Review) Act 2001, I refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912.']