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

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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

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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.

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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:

1. 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.

1. 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.

1. 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.

1. 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.

1. 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, Mr Tehan responded by informing the Court that he had already concluded that all but one of the grounds in the written case should be abandoned.  The Court then pointed out that there also appeared to be real difficulties with respect to the one remaining ground, and that it should be given close attention.

1. The adjournment was granted, and the hearing of the application was adjourned to a date to be fixed.  Subsequently, the representatives of the applicant informed the Court that the applicant wished to abandon his application.  It must be assumed that, following the further review of the case by senior counsel, the conclusion was reached that there were no reasonably arguable grounds of appeal.

1. There are, we think, some lessons to be learned from this sequence of events.  The written case on behalf of the applicant was prepared by counsel who had represented him at trial.  The involvement of trial counsel in appeals against sentence and conviction is encouraged by this Court, for the reasons set out in Practice Direction No 2 of 2011 (which governs the new appeal procedures established in 2011), as follows:

A core objective of this Practice Direction is to ensure that matters of fact and law which are in issue at trial are clearly identified and properly ventilated at trial, and that appeal grounds are drawn and argued by reference to what took place at trial.  Experience suggests that this objective is likely to be achieved in most cases by the involvement of trial counsel in the appeal process.  There will of course be cases in which appellate review of a conviction or sentence will require the involvement of counsel other than, or in addition to, trial counsel.  These may include cases in which it is necessary to consider a matter of law which was not ventilated at trial.  What follows should be read accordingly.[2]

[2]Supreme Court of Victoria, Practice Direction No 2 of 2011 (First Revision), Court of Appeal:  Criminal Appeals, 1.

1. As is there pointed out, however, there will always be cases in which appellate review will require the involvement of additional, or different, counsel.  This was such a case.  What was required, but had not happened until the forced change of counsel, was for the grounds of appeal as formulated by trial counsel to be reviewed by other counsel, once the Crown’s clear and cogent rebuttal of the grounds had been received.  In this case, the Crown’s response was served more than two months before the date fixed for the hearing.  It ought to have been clear to those representing the applicant, upon receipt of the Crown’s written case, that the position required review.  It is, after all, one of the key objectives of requiring parties to file full and detailed written cases that late abandonment of grounds should be avoided wherever possible.[3]

   [3]See, eg, RWS v The Queen [2012] VSCA 249, [27]–[28].

1. We understand, of course, that the engagement of new counsel to provide a second opinion in this way will have funding implications.  In very many cases, this will be an issue for Victoria Legal Aid (‘VLA’).  VLA has been an active participant in the implementation of the criminal appeal reforms, which has contributed enormously to their success.  The reforms have, in turn, resulted in very substantial savings to VLA in their funding of criminal appeals.

1. The course we suggest should likewise be cost-effective.  In the present case, the timely engagement of counsel to provide a second opinion would in all likelihood have obviated the need for any expenditure on preparation for a hearing which, in the event, never took place.

1. There should be a grant of leave to abandon the application.

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