Anthony Fezollari v The King
[2024] VSCA 220
•26 September 2024
| 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 which, after referring to earlier communications, provided:
Given the indications provided, the Court is content with the following timetable:
•29 March 2023: Applicant to file revised notice of application for leave to appeal against conviction and written case.
•26 April 2023: Respondent to file written case.
On 15 January 2024, the solicitors on the record for the applicant (‘the solicitors’) filed a notice that they had ceased to act. No other legal practitioner has filed any notice that that practitioner is now acting for the applicant; and no leave has been given to the solicitors to file a notice ceasing to act, as is at least arguably required by r 2.04(4) of the Supreme Court (Criminal Procedure) Rules 2017 (‘the Rules’).
Between January 2024 and the present, there have been various communications between the solicitors, the respondent and the Court about the progress of the applicant’s proceedings in this Court. From these communications, it appears that the applicant is overseas (perhaps in Albania); his precise whereabouts are unknown; his precise intentions in relation to his applications are unknown; and the solicitors are no longer being instructed by him and/or performing any legal services for him.
In these circumstances, and having regard to the lack of progress of the applicant’s proceeding, on 1 August 2024, the respondent filed an outline of submissions seeking the dismissal of the applicant’s applications pursuant to r 2.03(2) of the Rules. Rule 2.03(2) provides:
(2)Two Judges of Appeal may constitute, and may exercise all the jurisdiction and powers of, the Court of Appeal to dismiss an appeal or an application for leave to appeal —
(a)for noncompliance with this Order; or
(b)if it is otherwise appropriate to do so.
On 27 August 2024, McCann JR made an order, pursuant to r 2.13(1)(b) of the Rules, that the applicant’s application for leave to appeal against conviction and his application for an extension of time be referred for dismissal to two judges of appeal. This is the hearing of the referred application.
On 16 September 2024 the respondent filed an outline of submissions as to dismissal and dispensation with the requirement to give notice of referral for dismissal, together with an affidavit of Megan Elizabeth Healy affirmed 16 September 2024.
The applicant is not currently in breach of any order of the Court or provision of the Rules. The email communication of 22 February 2022 did not constitute an order or direction of the Court. Moreover, while the material filed in support of the respondent’s dismissal application details the attempts that have been made to notify the applicant that the solicitors are no longer acting for him and that the respondent is seeking to have his applications dismissed, there is no evidence that either of these matters have actually been brought to the attention of the applicant. In the circumstances, we think it is premature at this stage to dismiss the applicant’s applications.
Instead, we think it appropriate that a formal order requiring the applicant to file and serve a final written case should now be made; the position of the applicant’s former solicitors should be regularised; and further steps should now be taken to notify the applicant that, in the event of his non-compliance with this order, he will be at real risk of having his applications dismissed for want of prosecution. To that end, we propose to make the following orders:
(1)By 4:00 pm on 10 February 2025, the applicant file and serve a revised notice of application for leave to appeal against conviction, and a final written case in support of his application for an extension of time and revised application for leave to appeal against conviction.
(2)The solicitors on the record for the applicant email to each email address they have for the applicant, and send to each postal address they have for the applicant, copies of these reasons, the respondent’s submissions dated 1 August and 16 September 2024, the affidavit of Megan Elizabeth Healy affirmed 16 September 2024 and the exhibits thereto, and the orders made this day.
(3)Following compliance with order (2), the solicitors file and serve an affidavit detailing their compliance with the order.
(4)The respondent’s application for the dismissal of the applicant’s application for leave to appeal against conviction and his application for an extension of time be adjourned until 17 March 2025.
(5)Liberty to apply.
Upon the filing of a satisfactory affidavit of compliance with order (2) above, we would likely grant (on the papers, and to the extent necessary) leave to the solicitors to withdraw and formally cease acting for the applicant.
Finally, we should state for the sake of completeness that, in the event of the applicant not complying with order (1) above and/or providing some satisfactory explanation for any non-compliance with that order, then the applicant should be aware that he will be at real risk of having his applications for an extension of time and leave to appeal against conviction dismissed for want of prosecution at the hearing on 17 March 2025.
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