Arnautovic v The Queen
[2011] VSCA 216
•22 July 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0342
| DRAGAN ARNAUTOVIC |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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JUDGES: | HANSEN JA and ROBSON AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF JUDGMENT: | 22 July 2011 | |
| MEDIUM NEUTRAL CITATION: | [2011] VSCA 216 | |
| JUDGMENT APPEALED FROM: | Decision of Lansdowne AsJ on the papers dated 24 January 2011 | |
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CRIMINAL LAW – Application to extend time to lodge notice of application for leave to appeal against conviction – Refusal by Registrar – Election – Principles to be applied – Discretion to allow extension – No special or substantial reasons for delay – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | The applicant did not seek an oral hearing and was not required to attend | |
For the Crown | Mr M Roper | Mr C Hyland, Solicitor for Public Prosecutions |
HANSEN JA:
This is an application to extend time in which to lodge a notice of application for leave to appeal against conviction. The application was refused by Lansdowne AsJ as Registrar and, on election, has come up before us today. The President has determined that Robson AJA and myself may deal with the matter.
We have read the papers which include the application for an extension of time and the notice of application for leave to appeal against conviction, the affidavit of Adrian Mark Castle together with the exhibits to it and the affidavit of the solicitor from Defteros Lawyers, Dylan Reynolds, in support of the application.
I will ask Robson AJA to deliver the first judgment.
ROBSON AJA:
We have before us an application for an extension of time to lodge a notice of appeal against conviction. I will outline the history of the matter.
On 30 April 2009, before his Honour Judge Smallwood of the County Court, the applicant was convicted of trafficking and possession of a drug of dependence. The applicant was sentenced to ten years for trafficking with two years for possession.
During the trial he was represented by the solicitors of Doogue & O’Brien and represented by Ms Julie Condon of counsel.
On 5 May 2009, an application for leave to appeal against sentence was filed. It was signed by the applicant and witnessed by Mr Gill Doogue of Doogue & O’Brien and filed in the Court of Appeal Registry.
On 13 May 2009, the Adult Parole Board cancelled the applicant’s parole imposed for a prior conviction in 1999. The applicant was required to serve an additional three years imprisonment.
On 23 July 2010, the applicant’s application for leave to appeal against sentence was listed for hearing on 23 July 2010. On 5 July 2010, the Court of Appeal Registry was notified that Defteros Lawyers now acted for the applicant and they requested a vacation of the hearing date of 23 July 2010.
On 13 September 2010, the applicant filed an application dated 9 September 2010, for extension of time within which to lodge a notice of appeal. The reasons he gave in the extension application for the failure to file the notice within the prescribed time were as follows.
I was convicted of trafficking and possession of a drug of dependence in the County Court on 30 April 2009 before his Honour Justice Smallwood. I was sentenced to ten years for trafficking and two years’ possession. The sentences imposed were to be served concurrently with a total effective sentence of ten years and a non‑parole period of eight years. 687 days were declared served by way of pre‑sentence detention.
The applicant says during the trial plea, that he was represented by Doogue & O’Brien, solicitors, with Ms Julie Condon as counsel. He says that following his sentence on 30 April 2009 his solicitors advised him to appeal the sentence immediately. He says that as far as he was aware, the appeal against sentence was lodged in time.
The applicant says:
It was my understanding that the appeal against conviction would be lodged at a later time. However, when I inquired about the appeal against conviction I was informed that I was out of time and that they, my former solicitors, were not prepared to appeal the conviction. I faced difficulties in making contact with my solicitors and asked John Walsh of the Bridge of Hope Foundation to intervene. It is my understanding that John Walsh encountered similar difficulties.
He goes on to say that, ‘Nonetheless, I’ve changed solicitors since this time’.
The applicant says that in late June 2010 he instructed Defteros Lawyers in the appeal against sentence and that Defteros Lawyers represent him on a pro bono basis. He says that Defteros Lawyers visited him at the first available opportunity on 8 July 2010. The applicant says that at this conference he instructed Defteros Lawyers that he wished to appeal against sentence and conviction. He says that he is aware that no notice of appeal has been filed against conviction. He notes that he has pleaded guilty to one of the charges and he says:
Fundamentally I believe the conviction is tainted by my belief that there were fundamental flaws with the operation of my trial.
The applicant notes that his solicitors are not in possession of the trial transcript.
At the same time as the applicant filed the application for an extension of time, he filed a notice of application for leave to appeal against conviction. The grounds upon which he wishes to appeal are set out as follows:
1.It was not open to a properly instructed jury to be satisfied beyond reasonable doubt that I was guilty of the offence as charged;
2.In all the circumstances the verdicts of the jury on Count 1 are unreasonable or cannot be supported having regard to the evidence;
3.A miscarriage of justice occurred by the learned trial judge failing to instruct the jury that uncorroborated evidence of my injury could not be deemed an aggravating factor and;
4.A miscarriage of justice occurred by the learned trial judge allowing evidence of particular telephone intercept materials that were irrelevant to the Crown case and the charge I was defending; the allowance of this material had a prejudicial impact on my capacity to be fairly tried before an impartial jury and;
5.A miscarriage of justice occurred by the learned trial judge’s failing to properly charge the jury prior to deliberating their verdict.
In response to the application, Adrian Mark Castle, solicitor, swore an affidavit on 29 November 2010, filed on behalf of the Director of Public Prosecutions. He recites the history of the matter, as I have gone through. Mr Castle says in paragraph 22 that he has been advised by the informant, Detective Sergeant Kerryn Maloney that due to the absence of a timely application against conviction and the abandonment of the sentence appeal, all trial exhibits, including the telephone intercepts, recordings, have been destroyed.
Mr Castle also makes submissions in the affidavit. He says that the Director of Public Prosecutions opposes the application for an extension of time within which to lodge a notice of appeal against sentence. He says that on behalf of the Director of Public Prosecutions, he makes the following observations in respect of the unsworn application for extension of time and the proposed notice of appeal against conviction filed on behalf of the applicant.
Mr Castle says that the applicant’s solicitors, Doogue & O’Brien, promptly prepared a pro forma notice of appeal against sentence and had it signed by the applicant and his solicitor in Bill Doogue’s presence on 5 May 2009. Mr Castle says that, had instructions been given to appeal against conviction at that time, a pro forma application for leave to appeal against conviction could have been signed at the same time or shortly afterwards. He says that the applicant does not explain why he expected his solicitor to file a notice of appeal against conviction later on. He says that the applicant does not disclose in his application whether he received legal advice about an appeal against conviction at the time he gave instructions to appeal against sentence and signed the notice of appeal against sentence on 5 May 2009.
Mr Castle says that it appears from the materials available that the applicant did not contest the fact that he was in possession of heroin on the day of his arrest. Instead he disputed his involvement in trafficking heroin during the period that he was under police surveillance and telephone interception.
Mr Castle says that the applicant does not disclose in his material that he effectively had two firms of solicitors acting for him in separate matters at the time of his plea and sentence and that the firm acting for him in the 2009 plea was replaced by the one already handling the applicant’s endeavours to overturn his 1999 conviction.
Mr Castle says that at paragraph 9 of his unsworn application, the applicant stated that Defteros Lawyers visited him at their first available opportunity on 12 July 2010 despite the statement by counsel on 29 April 2009 that Mr Defteros was already acting for the applicant. Mr Castle says that despite the statements made by counsel on 29 April 2009, nothing further was filed with the Court of Appeal concerning the applicant’s 1999 conviction until 14 September 2010, at about the same time as his application for extension of time to lodge a notice of appeal against conviction in this matter. Mr Castle says that no adequate explanation is given as to why the applicant did not give instructions to appeal against conviction before July 2010, notwithstanding the ongoing involvement of his current solicitors since April 2009.
Mr Castle says that the applicant’s solipsistic assertion at paragraph 12 of his unsworn application cannot be treated as a submission that his appeal has any merit. Mr Castle says that in the absence of any references to trial transcripts, in particular transcripts of rulings and the judge’s charge, the grounds of appeal set out in the proposed notice of appeal are unsubstantiated. Mr Castle says that it is not apparent that the grounds of appeal set out in the proposed notice of appeal have been drafted by a practitioner who was present, at or otherwise involved in the trial proceedings concerned.
Mr Castle says that the prosecution is severely prejudiced by the delay of 16 months from the expiry of time for filing of a notice of appeal of sentence, being 13 April 2009, until the filing of the current application on 13 September 2010, which delay has occasioned the destruction of crucial exhibits.
Mr Castle goes on to say that on behalf of the Director of Public Prosecutions it is submitted that the applicant has failed to provide an adequate reason or explanation for failure to file notice of appeal within time; the applicant has failed to show that he has an arguable ground of appeal against his conviction; the applicant has failed to show that his proposed appeal against his conviction has a reasonable prospect of success; and the prosecution is severely prejudiced by the delay which has occasioned the destruction of original records of telephone intercepts on the understanding that the matter was finalised.
An affidavit in support of the application has been filed and it is sworn by Dylan Reynolds. He refers to Mr Castle’s affidavit and says that the purpose of his affidavit is to clarify a number of factual errors and misunderstandings for the benefit of the court and the Office of Public Prosecutions.
He says that Defteros Lawyers were not and are not solicitors on the record for the application for leave to appeal against the conviction pertaining to the 1999 conviction. He says that the comments made on the transcript by Julie Condon did not reflect the actual state of affairs at that time.
Mr Reynolds says that Defteros Lawyers have been solicitors on the record for the application for leave to appeal against the 2009 sentence since 5 July 2010. He says that therefore to suggest that the applicant had two firms acting for him at the time of his plea and sentence in 2009 is factually incorrect. He submits that these issues raised by Mr Castle have no bearing on any assessment of the merits of this application.
Mr Reynolds says that Defteros Lawyers were only made aware on 29 November 2010 of the fact that a separate file was opened by the Court of Appeal Registry for this out of time application for leave to appeal against conviction. He says that Defteros Lawyers filed a notice of appearance that same day.
Mr Reynolds refers to Mr Castle’s deposing that on 5 July 2010 the Court of Appeal Registry was notified that Defteros Lawyers now acted for the applicant and that they asked for the vacation of the hearing date of 23 July 2010 for the application for leave to appeal against sentence. He says that this is correct. Mr Reynolds says that Defteros requested the hearing date of 23 July be vacated by letter to the Court of Appeal Registry dated 12 July. He said that this letter stipulated a clear chronology of events detailing Defteros Lawyers’ involvement in the application for leave to appeal against the 2009 sentence.
The letter states that in late June 2010 Defteros Lawyers received instructions in relation the appeal against sentence; on 21 June Defteros Lawyers notified the Court of Appeal of the difficulties faced in adhering to the timetable for submission of appeal grounds by email. On 5 July Defteros Lawyers received a selection of the materials from the applicant’s previous solicitors, Doogue & O’Brien, these materials include the only copy of the transcript of plea and sentence Defteros Lawyers had been provided with.
On 8 July Mr Reynolds says that he attended the applicant at Melbourne Remand Centre to obtain further instructions. At this time the applicant instructed him that he wished to appeal against the 2009 conviction. On 9 July Mr Reynolds says that he received authority from his principal to represent the applicant in the conviction appeal.
Mr Reynolds refers to Mr Castle’s statement that the applicant’s application for leave to appeal against sentence has since been abandoned. He says that as of 17 December 2010, that he is not aware that any sentence appeal has been abandoned. He says that he believed this was also the understanding of the Court of Appeal.
Mr Reynolds says that it is his understanding that the applicant’s appeal against the 2009 sentence is alive and awaiting the outcome of this application. He says that he is aware, however, that the application for leave to appeal against the 1999 conviction was abandoned on 28 August 2000.
Mr Reynolds deals with Mr Castle’s evidence about the destruction of the exhibits. He says that the exhibits that have been destroyed may not necessarily mean that the transcripts have been destroyed although this is not clear. He says that it is also unclear whether the TI recordings are stored or archived digitally and further copies may be produced.
Mr Reynolds says that if a complete set of transcripts are available, that they may be admitted as evidence of the content of the calls. He says that Defteros Lawyers have in their possession a number of transcripts provided by the applicant’s prior solicitors. He says that these are yet to be indexed.
Mr Reynolds says that Defteros Lawyers are not aware of what compromises the complete list of trial exhibits as they have not received a copy of the trial transcript and accordingly can only comment on the TI materials.
Dealing with the application for extension of time, Mr Reynolds says at that the applicant advises that it was expressed to him by solicitor Doogue & O’Brien following sentence that an application for leave to appeal against conviction would be filed pursuant to the applicant’s instructions at that time.
Mr Reynolds does not add the usual statement that he believes what he has been told, although that may have been an oversight.
Mr Reynolds says that:
The applicant clearly and in no uncertain terms instructed his solicitors to appeal against conviction.
Mr Reynolds says that the reason why the application for leave to appeal against conviction was not made at the time of filing the application for leave to appeal against sentence or in a timely fashion generally by the solicitors after being clearly instructed to do so is not known to Defteros Lawyers or the applicant. He says that:
The applicant instructs that Doogue & O’Brien were acting for the applicant on a pro bono basis.
Mr Reynolds says:
That nonetheless the applicant instructs that his instructions were clear and that as a result of not understanding the time limits of filing the application for leave to appeal against conviction, he assumed any delay was part of due process.
Mr Reynolds says that:
The applicant instructs that he learnt of the failure of his solicitors to follow his instructions when he was told that not only had they not made the application for leave to appeal against conviction but if the applicant wished this to be done he would need to find a new solicitor.
Mr Reynolds says that:
At this time the applicant contacted Defteros Lawyers and withdrew his instructions from Doogue & O’Brien. By this time, however, the applicant’s application was significantly out of time.
Mr Reynolds deals with Mr Castle’s statement that the applicant does not disclose in his application whether he received legal advice about any appeal against conviction at the time he gave instructions to appeal against sentence.
Mr Reynolds says that the applicant was advised by Doogue & O’Brien and Ms Julie Condon of counsel that it was their view that an application for leave to appeal against a conviction may not be successful. Notwithstanding this the applicant chose to proceed with an application for leave to appeal against conviction. Mr Reynolds says that he refers to previous submissions as to the facts that transpired following those instructions being given.
Mr Reynolds deals with Mr Castle’s deposition that it is also not apparent that the grounds of appeal set out in the proposed notice of appeal had been drafted by a practitioner who was present at or otherwise involved in the trial proceedings concerned. Mr Reynolds says that this is accurate. He says that:
Defteros Lawyers first flagged our instructions regarding an appeal against conviction to the Court of Appeal by email dated 12 July 2010 at the same time as requesting an extension of time for the sentence appeal grounds.
Mr Reynolds says that on 3 September 2010 Defteros Lawyers contacted the court and requested the trial transcript so that Defteros Lawyers would be in a position to properly advise the applicant as to his legal position with regard to an application for leave to appeal against conviction.
Mr Reynolds says that on 7 September 2010 the request for transcript was declined.
Mr Reynolds says that accordingly Defteros have done everything in their capacity to properly advise the applicant with the very limited materials available.
Mr Reynolds then says that the applicant’s instructions were to seek leave to appeal both sentence and conviction. Mr Reynolds says that the failure of the applicant’s solicitors to follow their instructions was not a matter that should prejudice the applicant’s right of appeal. Mr Reynolds says that the grounds listed by the applicant for an appeal against conviction are heavily disadvantaged by the fact that his solicitors are not in possession of the trial transcript. Mr Reynolds says that it is not possible for Defteros Lawyers to make detailed submissions as to proposed grounds for appeal as these are not known beyond the issues raised by the applicant. He says that the full list of trial exhibits is not known to Defteros Lawyers. He says that the fact that the TI exhibits have been destroyed should not prejudice the applicant’s right to appeal. Mr Reynolds says that while it is a well‑established principle that statutory limits enable finality in a given proceeding, the 17 months delay in bringing this application for leave to appeal against conviction has been occasioned by numerous factors beyond the control of the applicant and that Defteros Lawyers have done everything in their power to bring this matter to an expeditious resolution and keep the court properly informed of developments.
With the benefit of these two affidavits the application was heard before Associate Justice Lansdowne on 24 January of this year. She refused the application. On 1 February 2011 the applicant gave notice of his election to have his application for an extension of time determined by the Court of Appeal.
The principles that the Court should apply in applications such as this were set out in R v O’Keefe [1979] VR 1, at page 5, in the joint judgment of McInerney, Menhennitt and McGarvie JJ where they quote the principles set out by Gowans J in R v John Edward Darby which is an unreported decision dated 2 May 1975. The principles espoused by Gowans J which were adopted by the Full Court are as follows:
1. The prescription by the statute of the time limit for giving notice is intended to secure finality, and compliance is intended to be required in the ordinary case.
2.Extension of the time is a matter for the discretion of the Court and the applicant must put material considerations before the Court which will persuade it to exercise its discretion in favour of an extension.
3.Rigid restrictions cannot be imposed on the exercise of discretion but in general the Court will require special and substantial reasons for extending the time.
4.The longer the time that has lapsed since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be.
5.It is the practice of the Court not to grant any considerable extensive time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed.
6.A reasonably satisfactory account of the failure to comply with the statutory requirements needs to be forthcoming.
Applying those principles to this case, the delay is something in the order of 16 months. The time for an appeal was 28 days. I have had regard to what Mr Reynolds says in his affidavit, nevertheless in my opinion the applicant’s explanation for failure to comply with the time limit is not reasonably satisfactory.
The applicant says in his application for an extension of 13 September 2010 that following sentence on 30 April his solicitors advised him to appeal the sentence immediately. He says he understands the appeal against sentence was lodged in time. It was lodged on 5 May 2009. He then goes on to say that it was his understanding that the appeal against conviction would be lodged at a later time. He does not elaborate on how he came to the understanding. He does not say that he expressly instructed his solicitors to lodge the appeal against conviction and they failed to do so. He does not say when he inquired about the appeal conviction and he gives no explanation as to why the appeal against conviction was not lodged at the same time as the appeal against sentence.
The applicant says he faced difficulties in making contact with his solicitors, and when he asked John Walsh to assist him to make contact he encountered similar difficulties. He does not explain what these difficulties were. For example, he does not say whether he was prevented from writing a letter to his solicitors.
With regard to the merits of the appeal, there is little if any material before the Court to suggest that applicant’s appeal would probably succeed. I take into account what Mr Reynolds says but nevertheless the Court would expect there to be some explanation going to the merits of the appeal and there is in fact none at all.
I have already been through the grounds of the appeal set out in the proposed notice. Mr Reynolds does not elaborate on these grounds, nor go to why the appeal would probably succeed.
I am not satisfied that the reasons put forward by the applicant are special or substantial. As I said, the delay is some 16 or 17 months. The circumstances would need to be exceptional and the appeal before the Court does not establish any exceptional circumstances.
The extension of time is a matter for the discretion of the Court and in my discretion I would refuse the application for the extension of time to seek leave to appeal against conviction.
HANSEN JA:
I agree and I add only these few particular matters.
In view of the affidavit of Mr Reynolds, I would make it clear that I approach the case on the basis that he is correct in asserting that the application for leave to appeal from sentence remains on foot and that the matters referred to in paragraph 28(b) and (f) of Mr Castle’s affidavit are not correct, that is to say I do not rely on the assertions of Mr Castle that are disputed by Mr Reynolds and which I have just mentioned.
Approaching the case on that basis, I agree completely with what Robson AJA has said.
The order of the Court will be that the application is dismissed.
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