and Arunkumar Pillai v The Queen - [2013] VSCA 359

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0055
ARUNKUMAR PILLAI	Applicant
v
THE QUEEN	Respondent

---

JUDGES	MAXWELL P, COGHLAN JA and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	24 October 2013
DATE OF JUDGMENT	9 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 359

---

CRIMINAL LAW – Appeal – Conviction – Written case – Change of counsel – Grounds of appeal abandoned – Hearing adjourned – Application for leave to abandon – Leave granted.

PRACTICE AND PROCEDURE – Criminal appeals – Written case – Grounds of appeal – Grounds drawn by trial counsel – Whether grounds reasonably arguable – Crown written case identified serious flaws in grounds – Whether second opinion required – Late abandonment of grounds – Application ultimately abandoned – Function of written case procedure – Supreme Court (Criminal Procedure) Rules 2008 (Vic) r 2.05, Practice Direction No 2 of 2011.

---

Appearances:	Counsel	Solicitors
For the Applicant	Mr P F Tehan QC	Patrick W Dwyer
For the Respondent	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P

COGHLAN JA
LASRY AJA:

The applicant was convicted of sexual offences following a trial in the County Court. He filed an application for leave to appeal against conviction. Following the events described below, the applicant now seeks leave to abandon the application.

Ordinarily, there would be no occasion to publish reasons in connection with the abandonment of an application for leave to appeal. The particular circumstances of this case, however, make it both appropriate and necessary to say something about what occurred.

The application was listed for hearing on 24 October this year. Two days before the hearing, the Court was notified that counsel for the applicant had unexpectedly become unavailable and that counsel newly-briefed to appear on behalf of the applicant would need to seek an adjournment of the hearing, as there was insufficient time for him to prepare for the hearing.

By the time this notification was received, the members of the bench had in preparation for the hearing read the written cases filed respectively by the applicant and the Crown.[1] It seemed to us that there were very real difficulties with the grounds of appeal as formulated, and the arguments advanced in support. Most of those difficulties had been clearly and cogently identified in the written case filed by the Crown in response. Accordingly, those representing the applicant were advised that the adjournment would be granted but that, for the assistance of counsel, there would be a brief mention so that the preliminary views of the Court could be conveyed.
[1]Supreme Court (Criminal Procedure) Rules 2008 (Vic) , r 2.05.

At the mention on 24 October 2013, Mr Tehan QC appeared for the applicant. He confirmed that he had only been recently retained and was not in a position to present argument on that day. When the Court indicated its view that there were substantial difficulties with the arguments as outlined in the applicant’s written case,…

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 and Arunkumar Pillai v The Queen

Details

AGLC: Pillai v The Queen [2013] VSCA 359
Case: [2013] VSCA 359
Decision Date: 9 December 2013

CaseChat Overview and Summary

The appellant, Arunkumar Pillai, appealed against his conviction for a criminal offence. The appeal was heard in the Supreme Court of Victoria. The central issue in the appeal was whether the appellant's conviction should be quashed due to significant errors in the trial counsel's representation, which were identified in the written case provided to the court. The appellant's new counsel sought to abandon the grounds of appeal initially drawn by the trial counsel, due to the serious flaws identified by the Crown in those grounds.

The court had to determine whether the grounds of appeal, as originally drafted by the trial counsel, were reasonably arguable. The Crown argued that the grounds contained serious flaws, rendering them unsound. The appellant's new counsel sought to abandon these grounds, and the court considered whether the written case procedure mandated a second opinion before such abandonment could be allowed. The court also examined whether the abandonment of the grounds was made in a timely manner, in accordance with the rules and practice directions governing criminal appeals in Victoria.

The court found that the grounds of appeal, as initially drafted, were not reasonably arguable and contained significant errors. The court acknowledged that the appellant's new counsel had identified these flaws and sought to abandon the grounds. However, the court noted that the abandonment occurred late in the process, and the appellant had not sought leave to abandon the grounds until after the hearing had commenced. The court granted leave for the appellant to abandon the grounds, but emphasised the importance of adhering to the procedural rules and timelines when abandoning grounds of appeal. Ultimately, the appeal was dismissed, and the conviction was upheld.

No further orders were made by the court.

Orders