Arbeit macht frei: - Fredrick Töben

HIS HONOUR: Can you tell me one last thing? Why is that Dr Töben
hasn’t sought either leave to appeal or appeal from my declaration since
the penalty hearing?
MR PERKINS: The reason – I’m sorry, your Honour said ‘since the
penalty hearing’?
HIS HONOUR: Since the penalty hearing. It would not have meant that
the appeal would have been heard before the penalty was imposed, but
why hasn’t he appealed?
MR PERKINS: Your Honour, the reason that he hasn’t is that I was of
the view that it was not appropriate that an appeal breaking up the trial be
commenced.
HIS HONOUR: Well, no, that wouldn’t have broken up the trial
MR PERKINS: I’m – it’s possible that I was quite wrong.
HIS HONOUR: it would certainly have been the appeal and I would
have gone ahead and imposed the sentence.
MR PERKINS: I beg your Honour’s pardon?
HIS HONOUR: That wouldn’t have broken up the trial. There was no
reason why your client couldn’t have appealed but allowed the penalty to
have been imposed.
MR PERKINS: Your Honour has mentioned what the position in South
Australia is
HIS HONOUR: I’m not talking about that; I’m on a different point, if
you’d please follow. You said that your client has an appeal because you
took the view that you ought not to break up the trial process; I’m asking
why didn’t you appeal – why didn’t you lodge a notice of appeal or lodge
your application for appeal after the penalty hearing which would not
have, in any way, impeded me from imposing the penalty which was
imposed today, and you would have been within time.
MR PERKINS: Your Honour, that, in my view and it may have been a
wrong view, but in my view, that would have been inappropriate in the
sense that it broke up the process
HIS HONOUR: Well, I’m saying to you it wouldn’t have. It would have
had no impact upon me. It wouldn’t have stopped me imposing the
penalty this morning, but your client would have been within time if he
had a right of appeal. Why did he not exercise his rights?
MR PERKINS: Your Honour, I’ve explained it in the only way that I can,
and that is
HIS HONOUR: All right. Thank you. That’s the best you can
MR PERKINS: It was because of a view that I took, and that view may
well have been incorrect, but that is the reason that it wasn’t done.
HIS HONOUR: Thank you, yes.
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