Adam Power v The Queen - [2018] VSCA 266

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0228

ADAM POWER	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	30 October 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 266
JUDGMENT APPEALED FROM:	DPP v Power [2016] VSC 498 (Hollingworth J)

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CRIMINAL LAW – Conviction – Application for extension of time to file application for leave to appeal against conviction – Aggravated burglary – Manslaughter – Joint criminal enterprise – Enlargement of Crown case against applicant by prosecutor in closing address – Invitation to jury to engage in post-offence incriminating conduct reasoning – Application for discharge of jury refused – Strong direction by trial judge – Whether, applicant having been convicted, substantial miscarriage of justice – Application for leave to appeal filed nearly 12 months out of time – Explanation for delay unsatisfactory – Proposed prospect of success on appeal poor – Application for extension of time refused.

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APPEARANCES:	Counsel	Solicitors
No appearances

KYROU JA

ASHLEY JA:

Adam Power, the applicant, was convicted after trial in the Supreme Court on single charges of manslaughter and aggravated burglary, and five charges of common assault. A jury found him guilty of those charges on 7 March 2016. On 29 September 2016, the Judge imposed a total effective sentence of 12 years’ imprisonment. Her Honour fixed a non-parole period of nine years’ imprisonment.

By document filed 31 October 2017, the applicant sought an extension of time to file a notice of application for leave to appeal against conviction. In support of the extension of time application, the applicant relied upon the affidavit of his solicitor, Nick Marcevski, sworn 30 October 2017.

Also on 31 October 2017, the applicant filed an application for leave to appeal against conviction and a written case. The application specified two grounds:

1. A substantial miscarriage of justice occurred as a result of the prosecutor having invited the jury in his closing address to reason that the applicant’s post-offence conduct constituted an implied admission of his guilt of the charged offences.
2. A substantial miscarriage of justice resulted from the learned trial Judge’s refusal to discharge the jury, after the prosecutor invited the jury in his closing address to reason that the applicant’s post-offence conduct constituted an implied admission of his guilt of the charged offences.

The respondent opposed the application for an extension of time, and relied upon the affidavit of Evelyn Shaw sworn 14 December 2017.

To have been filed within time, the notice of application for leave to appeal against conviction must have been filed by 27 October 2016. So that application was filed nearly 12 months out of time.

On 18 December 2017, a Deputy Judicial Registrar refused the extension of time application.

On 5 January 2018, the applicant filed a notice of election to have his extension of time application determined by the Court of Appeal constituted by two or more judges. It is that application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adam Power v The Queen

Details

AGLC: Adam Power v The Queen [2018] VSCA 266
Case: [2018] VSCA 266
Decision Date: 30 October 2018

CaseChat Overview and Summary

The case of Adam Power against The Queen involved a conviction for aggravated burglary and manslaughter, where Power was part of a joint criminal enterprise. The applicant sought an extension of time to file an application for leave to appeal against his conviction, as the initial application was filed nearly 12 months beyond the statutory deadline. The court was required to determine whether the delay in filing the application could be excused and if there was a reasonable prospect of success on appeal.

The legal issues centred on whether the delay in filing the application for leave to appeal was justifiable and if there was a substantial miscarriage of justice that warranted an extension of time. The court had to consider the invitation by the prosecutor in the closing address for the jury to engage in post-offence incriminating conduct reasoning, which was a significant point of contention. Additionally, the court examined the trial judge's refusal to discharge the jury and the strong direction given to them.

The court found that the enlargement of the Crown's case against the applicant by the prosecutor in the closing address did not constitute a substantial miscarriage of justice. The delay in filing the application for leave to appeal was deemed unsatisfactory, and the prospect of success on appeal was poor. Consequently, the application for an extension of time was refused, and the applicant's conviction and sentence remained in place.

Orders