Anthony Fezollari v The King - [2024] VSCA 220

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0163

ANTHONY FEZOLLARI	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH and McLEISH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 September 2024
DATE OF JUDGMENT:	26 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 220
JUDGMENT APPEALED FROM:	DPP v Fezollari (Unreported, County Court of Victoria, Chief Judge Rozenes, 12 April 2010) DPP v Fezollari (Unreported, County Court of Victoria, Judge Dean, 29 June 2011)

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PRACTICE AND PROCEDURE – Application for extension of time within which to seek leave to appeal against conviction – Application for leave to appeal against conviction – Applicant relying on interim/holding written case – Applicant currently not taking any step to finalise written case – Applicant’s solicitors seeking leave to cease acting – Whether applications should be dismissed for want of prosecution – Premature to dismiss applications at this stage – Orders made requiring applicant to file and serve revised notice of application for leave to appeal against conviction and final written case in support.

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Counsel
Applicant:		Ms R Parker
Respondent:		Ms S Clancy
Solicitors
Applicant:	Galbally Parker Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
MCLEISH JA:

In 2010, following a plea of guilty to one charge of trafficking methamphetamine, the applicant was sentenced to a term of imprisonment. In 2011, following a plea of guilty to another charge of trafficking methamphetamine, the applicant was sentenced to another term of imprisonment. On 22 November 2021, and notwithstanding his pleas of guilty, the applicant filed an application for an extension of time within which to seek leave to appeal against his convictions, together with a document headed, ‘Interim/Holding Written Case for the Applicant’ (‘the applicant’s interim written case’).
The applicant’s interim written case asserts that Nicola Gobbo represented him between 2004 and 2008; and that she informed on him ‘for over two years between at least 31 August 2006 and 12 December 2008’. In seeking an extension of time within which to file an application for leave to appeal against conviction, the applicant advances two proposed grounds of appeal:
1.There has been a substantial miscarriage of justice because the applicant’s legal representative, Nicola Gobbo, was informing on him to police.
2.There has been a substantial miscarriage of justice because of the failure to disclose, and concealment of the fact, that the applicant’s legal representative, Nicola Gobbo, was a registered police informer.
In January 2022, the applicant applied for an order under s 317 of the Criminal Procedure Act 2009 for the Chief Commissioner of Police to produce various documents. That application was resolved by the making of consent orders in this Court in April 2022. A further dispute about redactions to the documents produced by the Chief Commissioner was resolved by orders made on 14 December 2022.[1]
[1]Fezollari v The King [2022] VSCA 281 (McCann JR).
The s 317 issues between the parties having been concluded, on 22 February 2022, a Registry lawyer sent an email to the parties…

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 Anthony Fezollari v The King

Details

AGLC: Anthony Fezollari v The King [2024] VSCA 220
Case: [2024] VSCA 220
Decision Date: 26 September 2024

CaseChat Overview and Summary

In the matter of Anthony Fezollari versus The King, the dispute arose from an application for an extension of time to seek leave to appeal against a conviction. The application was heard by the High Court of Australia. The primary focus of the proceedings was whether the applicant should be granted an extension of time to lodge an application for leave to appeal against his conviction. Additionally, the court considered the applicant's reliance on an interim written case and the status of his solicitors' intention to cease acting for him.

The legal issues before the court involved determining whether the applicant's applications should be dismissed due to a lack of prosecution, and whether it was premature to dismiss the applications at that stage. The court had to balance the applicant's right to appeal against his conviction with the need to ensure that the legal process was being pursued diligently. The applicant's solicitors' intention to cease acting further complicated the matter, raising concerns about the applicant's ability to effectively pursue his appeal.

The court found that it was premature to dismiss the applications at that stage. The applicant's reliance on an interim written case and the solicitors' intention to cease acting warranted further consideration. The court ordered that the applicant file and serve a revised notice of application for leave to appeal against his conviction, along with a final written case in support. This decision ensured that the applicant had an opportunity to adequately prepare his appeal, while also maintaining the court's expectation of diligent prosecution of legal rights.

Orders