Abdul v R

Case [2013] NSWCCA 247

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Criminal Appeal

New South Wales
Case Title: Abdul v R
Medium Neutral Citation: [2013] NSWCCA 247
Hearing Date(s): 14 October 2013
Decision Date: 06 November 2013
Before: Hoeben CJ at CL at [1]
Johnson J at [1]
Bellew J at [1]
Decision:

The application for extension of time is dismissed.
Catchwords: CRIMINAL LAW - sentence appeal - sexual intercourse without consent - applicant sentenced in May 2009 - Notice of Intention to seek Leave to Appeal against Sentence lapsed - whether decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 entitled applicant to an extension of time within which to seek leave to appeal against sentence - extension of time opposed by Crown - importance of principle of finality - principle of finality applies to sentence appeals as well as conviction appeals - need to consider all relevant factors when considering application for extension of time - length of delay, reasons for delay, interests of community, interests of victim and whether substantial injustice would result if an extension of time were refused - prospects of success of application for leave to appeal - application of s6(3) of the Criminal Appeal Act 1912 - re-exercise of sentencing discretion if "Muldrock error" made out - use of statistics - no lesser a sentence warranted in law - extension of time refused.
Legislation Cited: Crimes Act 1900 (NSW) - s61I
Crimes (Sentencing Procedure) Act 1999 (NSW) - s54A(2), s54B, s54D
Criminal Appeal Act 1912 (NSW) - s5(1)(c), s6(3), s10
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002
Criminal Appeal Rules, Rule 3A, 3B
Cases Cited: Ali v R [2010] NSWCCA 35
Arja v R ([2010] NSWCCA 190
Baxter v R [2007] NSWCCA 237; A Crim R 284
Chau Cheuk Yiu v Poon Kit Sang [2012] HKCFA 42; [2013] 1 HKC 478
Dionnet v R [2009] NSWCCA 85
Douar v R [2005] NSWCCA 455;159 A Crim R 154
Edwards v R [2009] NSWCCA 199
Etchell v R [2010] NSWCCA 262; 205 A Crim R 138
Graham v R [2008] NSWCCA 174
Hawkins [1997] 1 Cr App Rep 234
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Jawad v The Queen [2013] EWCA Crim 644
Lawrence v R (1980) 1 NSWLR 122
McCall v R [2010] NSWCCA 174
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Montero v R [2013] NSWCCA 214
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Ng v R [2011] NSWCCA 227; 214 A Crim R 191
Philopos v R [2008] NSWCCA 66
R [2006] EWCA Crim 1974, [2007] 1 Cr App Rep 150
R v Bestel and Others [2013] EWCA Crim 1305
Re Berkeley (1945) Ch 1
Vandeventer v R [2013] NSWCCA 33
Ward v R [2013] NSWCCA 46
R v Way [2004] NSWCCA 131;

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AGLC
Abdul v R [2013] NSWCCA 247
Case
[2013] NSWCCA 247
Decision Date

CaseChat Overview and Summary

The case of Abdul v R involves an applicant appealing against the refusal of an extension of time to seek leave to appeal his sentence. The applicant was convicted and sentenced for sexual intercourse without consent. The applicant initially filed a Notice of Intention to Appeal in relation to his sentence on 25 May 2009. However, the subsequent application for leave to appeal against the sentence lapsed, and the applicant sought an extension of time to file a fresh application. The Crown opposed the application on the basis of the principle of finality, which is critical to the administration of the justice system. The court was required to determine whether the applicant was entitled to an extension of time and, if so, whether it should be granted.

The court considered various factors in deciding the application. These included the length of the delay, the reasons for the delay, the interests of the community, the interests of the victim, and whether substantial injustice would result if the extension of time were refused. The court also examined the prospects of success of the application for leave to appeal and the re-exercise of sentencing discretion if a "Muldrock error" were made out. The decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 was pivotal, as it related to errors in the application of standard non-parole periods. The applicant argued that the matters raised by the Crown did not constitute a barrier to granting an extension of time where the justice of the case warranted that course. However, the court concluded that the application was more than three years out of time, with no substantial explanation for the delay.

The court held that the principle of finality, which is critical to the administration of the justice system, outweighed other factors in this case. There were no exceptional circumstances present that would justify granting an extension of time. The majority of the sentence had been served, and the applicant had not shown exceptional circumstances that would warrant departing from the principle of finality. Therefore, the application for an extension of time was refused.

In conclusion, the Court of Criminal Appeal upheld the refusal of an extension of time to the applicant to seek leave to appeal his sentence. The decision underscored the importance of the principle of finality in the administration of justice and the need to balance this principle against other factors in exceptional circumstances. The court found that the applicant had not demonstrated such circumstances, and the application was accordingly dismissed.

Orders

Orders of the court

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Background

Background to the litigation

When she left the bathroom, she found that Nazir was present. Eventually she was taken by Nazir to the Liverpool Railway Station. She caught a train to Campbelltown Railway Station and went to the Campbelltown Police Station where she made a complaint about what had occurred.Background to this application After having been sentenced, the applicant filed a Notice of Intention to Appeal in relation to his sentence on 25 May 2009. On 22 June 2009 the applicant made an application for legal aid in respect of the appeal. The applicant consulted with a solicitor who said that he would get an opinion from a barrister as to whether the applicant had a good chance of winning his appeal. In June 2010 the solicitor advised him that the barrister did not think that he had good prospects of success on his appeal and that Legal Aid NSW would probably not support his appeal. In due course Legal Aid NSW refused the applicant's application for assistance. The applicant appealed from that refusal. On 25 October 2010 Legal Aid NSW (presumably the Legal Aid Review Committee), rejected the appeal and confirmed that it would not provide legal aid for his appeal as it did not consider that he had reasonable prospects of success "in accordance with the Legal Aid merit test". On 30 March 2011 Legal Aid NSW processed a further application for legal aid from the applicant dated 16 February 2009, and on 9 August 2011 Legal Aid NSW again confirmed the refusal to provide legal aid for the appeal because "the application was not considered to have reasonable prospects of success in accordance with the Legal Aid merit test". Between 4 March and 6 March 2013 the applicant's closed Legal Aid file was reviewed to determine whether the sentence might be susceptible to a review before the courts, due to "Muldrock type errors". This was a reference to the decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. On 27 March 2013 a letter was sent to the applicant advising that his case had been reviewed and inviting him to make an application for legal aid so that further work could be conducted. In due course this application was prepared and filed in the Court of Criminal Appeal Registry on behalf of the applicant on 28 June 2013. In order to understand what is meant by the expression "Muldrock error" it is necessary to say something about the background to that decision. In 2003 standard non-parole periods were introduced as part of the sentencing law of NSW. Part 4 Div 1A (entitled "Standard Non-Parole Periods") was inserted into the CSP Act by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002. The provision created standard non-parole periods for several offences in a table located at the end of s54D ("the Table"). The Table only applied to offences committed on or after 1 February 2003. In 2007 and 2008 other offences were added to the Table. The standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table (s54A(1)). It "represents an offence in the middle of the range of objective seriousness for offences in the Table" (s54A(2)). When imposing a sentence of imprisonment for a standard non-parole period offence, "the court is required to impose the standard non-parole period unless it determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period" (s54B(2)). A court is obliged to make a record of its reasons for increasing or reducing the standard non-parole period. It must identify in those reasons each factor that it took into account (s54B(4)).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In summary, the applicant submitted that the matters raised by the Crown did not constitute a barrier to this Court granting an extension of time and intervening where the justice of the case warranted that course. He submitted that when determining whether an extension of time ought to be granted, this Court should take into account all relevant factors including the merits of the proposed grounds of appeal.Consideration There have been recent statements of principle in relation to the importance of the concept of finality. In Montero v R [2013] NSWCCA 214 Leeming JA made the following observation. He did so in the context of an application for extension of time within which to apply for leave to appeal against sentence where the error complained of was non-compliance with Muldrock. His Honour said:"2 There is a further reason for refusing the application for an extension of time. It is well established that a change in the law, even a change whose effect is that a conviction would be quashed on appeal, is not of itself sufficient to warrant the granting of an extension of time in which to appeal. This is an aspect of the principle of finality...." Having referred to R v Ramsden, R v Unger and State of NSW v Kable [2013] HCA 26; 87 ALJR 737 Leeming JA concluded:"6 Those principles have been applied in this Court, including in R v Gregory [2002] NSWCCA 199 at [38] - [45] and Etchell v R [2010] NSWCCA 262; (2010) 205 A Crim R 138 at [19] - [24]. They were applied by the New Zealand Court of Appeal in R v Knight [1998] 1 NZLR 583 at 587-588 on which in turn the Hong Kong Court of Final Appeal has consistently relied (the most recent decision is Chau Cheuk Yiu v Poon Kit Sang [2012] HKCFA 42; [2013] 1 HKC 478: see at [9] - [11] and [53] - [59]). All four of those decisions recognise that "exceptional" circumstances must be shown to warrant departing from the principle of finality.7 What will amount to the requisite exceptional circumstances cannot be defined exhaustively. However, in the present case, the application is more than three years out of time, and the majority of the sentence has been served. Most importantly, there is no explanation at all for the delay from 30 October 2009 until late 2011, save that the decision in Muldrock pointed to the possibility of an argument that the sentencing judge, who was bound by R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, had erred. That demonstrates the wholly adventitious background to the application which is now made. In my view this is a clear case for not departing from the principle stated in Unger." Neither RA Hulme J nor Button J expressed a view on this point because the matter had not been fully argued and because it was unnecessary to do so for the resolution of the application. In Chau Cheuk Yiu v Poon Kit Sang [2012] HKCFA 42; [2013] 1 HKC 478 Justice Chan PJ (with whom Justice Ribeiro PJ, Justice Litton NPJ and Justice Gleeson NPJ agreed) said on the issue of finality:"54 Where the sole or real ground of the proposed appeal is that there was a previous misunderstanding of the applicable law, the principle to be applied for determining whether to grant an extension of time was stated by this Court in Hung Chan Wa. In that case, Chief Justice Li (with whom the other members of the Court agreed), having considered the relevant overseas jurisprudence, held that this ground by itself would not justify an extension but that there could be exceptional circumstances in a particular case which would justify an extension. He added that the circumstances must be so exceptional that the occasions when they would be held to exist would be very rare. 55 It is acknowledged that in the majority of cases, this principle may create a sense of grievance for the parties concerned. However, the finality principle is considered as of such critical importance to the overall administration of the justice system that this factor outweighs other factors save in exceptional circumstances in which case extension should be granted. Where such exceptional circumstances exist, one would expect that they would be plain and obvious and readily identifiable."