and Glenn Weaven v The Queen - [2018] VSCA 127

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0195
GLENN WEAVEN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN, PRIEST and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 May 2018
DATE OF JUDGMENT:	21 May 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 127
JUDGMENT APPEALED FROM:	R v Weaven [2011] VSC 508 (Weinberg JA)

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CRIMINAL LAW — Appeal — Conviction — Application for extension of time to appeal — Applicant convicted of murder — Six year delay in filing application — Refusal of extension of time by Registrar — Election to have application determined by Court of Appeal — Fresh or new evidence — Confession obtained through ‘scenario’ technique — Whether psychologist’s opinion and change in Canadian jurisprudence post-trial constitutes ‘fresh’ evidence — Whether other evidence constitutes ‘new’ evidence — No prospect that appeal would succeed — Application refused — Criminal Procedure Act 2009 s 313(2) — R v Hart [2014] 2 SCR 544; R v Wichman [2016] 1 NZLR 753 discussed — Tofilau v The Queen (2007) 231 CLR 396; Madafferi v The Queen [2017] VSCA 302 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Matthews	Stary Norton Halphen
For the Respondent	Mr M D Stanton	Mr John Cain, Solicitor for Public Prosecutions

WHELAN JA:

I have read in draft the judgment of Priest JA with which I agree. For the reasons he gives, the application for extension of time should be dismissed.

PRIEST JA:

An application for extension of time

More than six years ago, on 18 August 2011, a jury in the Supreme Court convicted the applicant of the murder of Mary Lou Cook.

On 12 October 2011, the trial judge sentenced the applicant to be imprisoned for 20 years, and set a non-parole period of 16 years.[1] Thus, the time limit for filing an application for leave to appeal against conviction expired on 9 November 2011.[2]
[1]R v Weaven [2011] VSC 508 (Weinberg JA). 754 days’ pre-sentence detention was declared.
[2]Section 275(1) of the Criminal Procedure Act 2009 requires a notice of application for leave to appeal against conviction to be filed within 28 days after the day on which a person is sentenced, subject to any extension under s 313 of the Act.

Notwithstanding the very long delay, on 15 September 2017 the applicant filed an application for an extension of time within which to file an application for leave to appeal against his conviction, together with an application for leave to appeal against conviction.

The Registrar of Criminal Appeals refused an extension of time on 25 January 2018. In summary, the Registrar did so because he considered that:

(a) Mr Weaven has not provided a satisfactory explanation for the delay, which is substantial;
(b) Mr Weaven has not demonstrated that there are such merits in the proposed appeal that it would probably succeed;
(c) Mr Weaven has not sufficiently demonstrated special and substantial reasons for extending time; …

Pursuant to s 313(2) of the

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.

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Details

Case: [2018] VSCA 127
Decision Date: 21 May 2018

CaseChat Overview and Summary

The applicant, Glenn Weaven, sought an extension of time to appeal his conviction for murder. The application was filed six years after the time limit for appealing had expired. The Registrar had already refused the application, but the applicant elected to have the matter determined by the Court of Appeal. The primary legal issues were whether the psychologist's opinion and the subsequent changes in Canadian jurisprudence constituted fresh evidence, and whether the other evidence presented constituted new evidence. The court also had to determine if there was a prospect that the appeal would succeed.

The court examined the definition of fresh and new evidence as per the Criminal Procedure Act 2009, and considered the decisions in R v Hart and R v Wichman. It held that the psychologist's opinion did not amount to fresh evidence, as it did not address the circumstances of the applicant's confession. The court also found that the changes in Canadian jurisprudence did not constitute fresh evidence as they did not provide new information that was not previously available. Additionally, the court determined that the other evidence presented did not constitute new evidence, as it was either already considered at trial or did not provide new information. Finally, the court found that there was no prospect that the appeal would succeed.

Based on the findings, the Court of Appeal refused the application for an extension of time to appeal. The court held that the applicant had not provided sufficient grounds for an extension of time under the Criminal Procedure Act 2009, and that the application was not made within a reasonable time. The court also noted that the applicant had not demonstrated that the appeal had a reasonable prospect of success.

No further orders were made by the court.

Orders