Bain (a pseudonym) v Gebbie
[2021] VCC 1287
•8 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| ARNOLD BAIN (A PSEUDONYM) | Applicant |
| v | |
| Respondent |
JAYDEN GEBBIE & ORS
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 September 2021 | |
DATE OF RULING: | 8 September 2021 | |
CASE MAY BE CITED AS: | Bain (a pseudonym) v Gebbie & Ors | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1287 | |
RULING
APPLICATION FOR LEAVE TO APPEAL OUT OF TIME
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Subject:Criminal law.
Catchwords: Application for leave to appeal out of time; exceptional circumstances.
Legislation Cited: Magistrates' Court Act 1989; Criminal Procedure Act 2009; Sex Offenders Registration Act 2004;
Cases Cited:Kalb v Magistrates' Court of Victoria [2014] VSC 137; Shire of Carnarvon v Klein Corporation Pty Ltd [2008] VSC 24; Director of Public Prosecutions v Archer [2018] VSC 155; Grimanis v DPP [2020] VCC 908
Ruling: Application for leave to appeal out of time granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms E. Millar | Victoria Legal Aid |
| For the Respondent | Ms E. Strugnell | Office of Public Prosecutions |
HER HONOUR:
1This is an application by the applicant Arnold Bain[1] for leave to appeal out of time pursuant to section 263(2) of the Criminal Procedure Act 2009. The applicant has lodged an appeal against the sentence imposed at Bacchus Marsh Magistrates' Court on 22 January 2021. In particular, the applicant appeals against an order made pursuant to section 11 of the Sex Offenders Registration Act 2004 (“SORA”) placing him on the Sex Offenders Register for eight years.
[1] A pseudonym.
Relevant legal principles
2Section 254(1) of the Criminal Procedure Act provides that a person can appeal to the County Court against a sentence imposed by the Magistrates' Court. Section 255(1) of the Criminal Procedure Act provides that an appeal under section 254 of the Criminal Procedure Act is commenced by filing a notice of appeal with the registrar of the Magistrates' Court within 28 days after the day on which the sentence of the Magistrates' Court is imposed. Section 3 of the Criminal Procedure Act defines “sentence” to include an order made under section 11 of the Sex Offenders Registration Act 2004.
3Section 263 of the Criminal Procedure Act states:
(1) A notice of appeal filed after the end of the period referred to in section 255(1) or 258 is deemed to be an application for leave to appeal on the grounds stated in the notice.
(2) The County Court or the Supreme Court, as the case requires, may grant leave to appeal under subsection (1) and the appellant may proceed with the appeal if –
(a) the court considers that the failure to file a notice of appeal within the period referred to in section 255(1) or 258 was due to exceptional circumstances; and
(b) the court is satisfied that the respondent’s case would not be materially prejudiced because of the delay.
(3) If the court does not grant leave to appeal under subsection (2), the court must strike out the appeal.
4In the case of Kalb v Magistrates' Court of Victoria [2014] VSC 137, Derham AsJ referred to the decision of the Shire of Carnarvon v Klein Corporation Pty Ltd [2008] VSC 24, where Forrest J analysed the authorities relevant to the application under section 109(5) of the Magistrates' Court Act 1989, which, for present purposes, is materially the same as section 263(2) of the Criminal Procedure Act. His Honour concluded that the authorities stand for the following principles:
"(a) The granting of an extension of time is not automatic. Upon the expiry of the time for lodgement of the appeal, a respondent has a vested right to retain the judgment unless the application is granted;
(b) The onus lies on the applicant to satisfy the test of exceptional circumstances;
(c) Although "exceptional" is defined as meaning "unusual, special, out of the ordinary course" in the Oxford English dictionary, in the context of the Act, the circumstances must be such that they can be said to "rarely occur" and "perhaps be outside reasonable anticipation or expectation";
(d) The enquiry is confined to the circumstances relevant to the applicant’s failure to appeal within time and whether they may be characterised as exceptional;
(e) As part of that enquiry, a court will examine the conduct of the applicant (and his or her agents) in the prosecution of the appeal and the explanation for failing to lodge the notice within time; and
(f) The enquiry in determining whether exceptional circumstances exist as required by [section 263(2)] is not a consideration of all matters germane to the appeal."
5In two recent decisions, one of DPP v Archer [2018] VSC 155 and the other Grimanis v DPP [2020] VCC 908, exceptional circumstances for the purposes of an application for leave pursuant to section 263 of the Criminal Procedure Act were held to be that the applicant had been given incomplete or inadequate legal advice at the relevant time. In both cases, upon the applicant receiving appropriate information and advice, each applicant acted promptly to lodge the appeal notice.
The evidence in this application
6In support of this application pursuant to section 263 of the Criminal Procedure Act, both the applicant and his solicitor, Melanie Rudolphus of the Ballarat office of Victoria Legal Aid, gave evidence and were cross-examined.
7The following documents were tendered on the application:
·Exhibit 1 - The SORA acknowledgement received by the applicant on 9 February 2021;
·Exhibit 2 - A bundle of email correspondence between Ms Rudolphus and police;
·Exhibit 3 - Certified extracts from Bacchus Marsh Magistrates' Court; and
·Exhibit 4 – An unsigned notice forwarded to Ms Rudolphus from Bacchus Marsh Magistrates' Court dated 27 April 2021.
Chronology
8In summary, the evidence reveals the following chronology.
98 January 2021. The applicant pleaded guilty to a consolidation of charges at the Bacchus Marsh Magistrates' Court, where he was represented by Ms Rudolphus. Among the charges he pleaded guilty to, there were three offences of a sexual nature. One of these offences was included in a brief of Detective Senior Constable Gebbie. Ms Rudolphus had received this brief electronically, in response to what is now a usual request. On the cover sheet of the brief, under the area headed "Ancillary Orders" the box marked for SORA was ticked, indicating no application was to be made. The plea proceeded and there was no application, nor any mention of the applicant being placed on the Sex Offenders Register.
1022 January 2021. The applicant was sentenced at the Bacchus Marsh Magistrates' Court. He was again represented by Ms Rudolphus. The sentence proceeded and again there was no application, nor any mention that the applicant was to be placed on the Sex Offenders Register. Further, the applicant did not receive or sign any documents, and there was no explanation by the magistrate as to the consequences of failing to comply with the order, as required by section 50 of the Sex Offenders Registration Act. The applicant and his solicitor, Ms Rudolphus, were not made aware of any order having been made pursuant to the SORA legislation. The applicant had been in custody leading up to this hearing. As a result of the sentence imposed by the magistrate, he was released from custody on this day. On the hearing of this application, the applicant gave evidence that within approximately one week of being sentenced he received a letter from the Magistrates' Court. The letter said he must report to the police within seven days and provided a number that he was to call. He called the number and made a time to attend at Ballarat Sexual Offences and Child Abuse Investigation Team.
1128 January 2021. Having sought instructions from the applicant, Ms Rudolphus emailed a letter to the applicant’s mother confirming the details of sentence imposed by the Court. In this letter Ms Rudolphus explained the applicant’s appeal rights and stipulated the expiration of the time to appeal was 19th February 2021. Her advice to the applicant was that he should not appeal the sentence.
129 February 2021. The applicant attended Ballarat police for his initial report as required by the SORA legislation. He received a document from police acknowledging that a report of his personal details as required by section 14 of the Sex Offenders Registration Act had been made. This document was tendered and marked as Exhibit 1 on the application. The applicant gave evidence that he answered several questions asked by the police and was advised that he had to report once every two years back at that location and when he had contact with children and "that sort of stuff". He considered that the requirement to attend the police station was automatic and that it related to his court hearing. In these circumstances he did not think it was something that he should raise with Ms Rudolphus.
1314 April 2021. The applicant was charged with further offending and remanded in custody. One of the offences was a failure to comply with reporting obligations pursuant to section 46 of the Sex Offenders Registration Act. The applicant was again represented by the Ballarat office of Victoria Legal Aid. As Ms Rudolphus was "acting in charge" at the time, a colleague was tasked to speak with the applicant and represent him at the Bacchus Marsh Magistrates' Court on the following day. Ms Rudolphus was aware that the applicant had been charged and that one of the charges was aggravated burglary. Having recently appeared for him, she discussed with her colleague the lack of merit in a bail application. This advice was ultimately given to the applicant and no application for bail was made on this date.
1415 April 2021. It was the evidence of Ms Rudolphus that on this date her colleague appeared for the applicant and he was further remanded in custody. At some later time a physical copy of the charge sheets was placed in her in-tray.
1522 April 2021. The applicant had a conversation with Ms Rudolphus by telephone from custody. Ms Rudolphus had been made aware that his matter was now to proceed as a filing hearing. She advised the applicant of this and they spoke about bail. It was around this time that Ms Rudolphus became aware of the charge of failing to comply with the Sex Offenders Registration Act. She had no idea where this SORA charge could have come from and so set about making enquiries.
1626 April 2021. Ms Rudolphus had a further in-depth discussion with the applicant in relation to the charges. At this time she asked if he was aware of the order placing him on the Sex Offenders Register and indicated that she would get a copy of the recording from the hearings on both the 8th and 22nd of January 2021. Her evidence was that she was concerned that the SORA order may have been made and it was an oversight by her. Ms Rudolphus also contacted the appeal section of VLA and sought advice from a senior lawyer in relation to an appeal for the applicant. She sent an email to judicial support at the Magistrates' Court because she required the permission of the Chief Magistrate Her Honour Judge Hannan to have the recording of the Magistrates' Court hearing released to her because it involved a sexual offence. She also sent an email to the Ballarat Magistrates' Court and asked for a copy of the SORA acknowledgement. She received an unsigned copy dated 27 April 2021. It was a document that seemed to have been generated on that day. This document was tendered and marked as Exhibit 4.
1727 April 2021. As part of her enquiries, Ms Rudolphus contacted the police Informant Detective Senior Constable Gebbie by email, asking if he had made an application for SORA registration. He advised that he had completed an application form and that it was on the brief. Ms Rudolphus also contacted the prosecutors who had appeared on both 8th and 22nd January 2021 to ascertain if they had any knowledge of an application for a SORA order on either of those days.
1830 April 2021. Ms Rudolphus again contacted the prosecutors who had appeared in the case. Each of them replied to her on this date. They advised that neither of them had any knowledge of an application for a SORA registration. This email correspondence was tendered as a bundle and marked as Exhibit 2. Now armed with this information, Ms Rudolphus continued to request authorisation from judicial support to get the recordings.
1913 May 2021. Ms Rudolphus sought further advice from the senior lawyer from the VLA appeals section, who told her she should lodge the appeal. Ms Rudolphus emailed the Magistrates' Court asking for the appeal papers to be lodged on behalf of the applicant. She did so, as she was concerned that time was passing, she had not heard from judicial support and she did not want to prejudice the applicant. The recording release was approved on this day. Subsequently, Ms Rudolphus received the recordings, which revealed that there was no mention of SORA registration by anyone, including the Magistrate, on either date.
2018 May 2021. This is the date on the appeal notice which has been lodged by the applicant. It appears that there was some delay in the appeal being generated by the court from when it was requested by Ms Rudolphus. The appeal paperwork was not signed by the applicant until 7th June 2021. It was the applicant’s evidence that he had no control over this as he was in custody and he was reliant on the authorities.
The submissions of the parties
21Comprehensive and helpful written submissions were filed on behalf of the applicant. It was submitted by Ms Millar that as soon as Ms Rudolphus became aware of the SORA order in late April she commenced to make enquiries. This was well past the 28 days allowed for lodging an appeal. In the circumstances, there was nothing that Ms Rudolphus could have done to lodge an appeal within time. Given the way the matter had unfolded, she could not have been expected to know an order had been made. This was in part because the preliminary brief cover sheet indicated an order pursuant to the SORA legislation was not sought.
22The application was not raised in open court, the applicant had not been provided with a copy of the application, no submissions were made, and no order was announced. In the circumstances, it was not reasonable for Ms Rudolphus to have made further enquiries about the making of an order that she had not expected to be made.
23Further, it was not incumbent on the applicant that he would understand he had been placed on the Sex Offenders Register. He had no legal training and could not have been expected to understand that he had appeal rights that could have been enlivened. His inaction in this regard is not inconsistent with the advice he had been given by Ms Rudolphus, that there was no merit in an appeal.
24It was further submitted by Ms Millar that the circumstances were very unusual and exceptional. It was these circumstances that had led to the failure to lodge the appeal within time.
25In addition, Ms Millar submitted that there was a failure to afford procedural fairness to the applicant. This was so as he was unaware of any application, and was denied the right of making any submissions against the order being made. The ramifications of not being able to make such submissions were very serious as he had been placed on an order for eight years. Sex Offenders Registration orders are very onerous, they have reporting conditions, and a failure to comply potentially has serious consequences to liberty.
26On behalf of the respondent, Ms Strugnell submitted that the circumstances that had occurred at Bacchus Marsh Magistrates' Court were unusual and outside the ordinary. She submitted, however, that the test of exceptional circumstances was limited to exceptional circumstances as to why the appeal was lodged out of time. She reminded the court that the onus was on the applicant to satisfy the court that there had been exceptional circumstances. She referred to the cases of Kalb v Magistrates' Court of Victoria [2014] VSC 137, Grimanis v DPP [2020] VCC 908 and Director of Public Prosecutions v Archer [2018] VSC 155.
27Ms Strugnell further submitted the issue really came down to, firstly, the conduct of the applicant and then the conduct of his agent. She submitted that the applicant's explanation for the delay was not sufficient to satisfy the test of exceptional circumstances. The applicant had given evidence that he had received the letter from the court by mail and he was provided the telephone number to make an appointment for his initial interview on 9 February 2021. At the interview he spent at least an hour with the police and signed an acknowledgement that he understood his legal rights and obligations under the Act. It was the prosecution submission that at this point in time he ought to have made contact with Ms Rudolphus. All of this had occurred whilst he was in the community and it had occurred within the 28-day time period for lodging an appeal. In these circumstances she submitted the delay had not been adequately explained by the applicant. It was not enough to say that he had no legal training, as this essentially amounted to ignorance of the law, which did not amount to exceptional circumstances.
28Further to this, the prosecution submitted that there was additional delay between 26 April 2021 and 18 May 2021. This delay was also caused by the applicant not acting in a timely manner. Although he had arrived at the situation unusually, he was not unaware of his obligations and he failed to act in time. It was for these reasons that the Director submitted that leave should not be granted to appeal.
29Ms Strugnell conceded that the respondent was not prejudiced by the delay that had occurred in the late lodgement of the appeal notice.
Findings
30I accept the uncontested evidence of the applicant and Ms Rudolphus that there was no application or mention of an order pursuant to the Sex Offenders Registration Act at the hearing on either 8 or 22 January 2021.
31I accept the evidence of the applicant that when he received the letter from the court he considered that it was “automatic” and that it was something that just came along with the charges he had before the court. For this reason he did not discuss the letter with Ms Rudolphus; instead he complied with the directions contained in the letter.
32I accept the evidence of Ms Rudolphus that it was not until late April that she became aware an order had been made pursuant to the Sex Offenders Registration Act in relation to the applicant. In my view, Ms Rudolphus acted promptly, responsibly and diligently in making enquiries, seeking advice and ultimately advising the applicant to appeal.
33I further accept that in circumstances where the cover sheet of the preliminary brief indicated that no application would be made pursuant to the Sex Offender Registration Act it was not feasible for Ms Rudolphus to make enquiries whether such order had been made. The making of the order by the magistrate without an application from the parties and in the absence of any submissions from either party amounted to a complete denial of procedural fairness.
34The consequences to the applicant of being place on the Sex Offenders Register for a period of 8 years are extremely onerous. It would be an injustice if the order was allowed to stand in the absence of a proper hearing and a proper determination according to law.
35At the hearing of this application I raised with the parties the possible invalidity of the order given the prosecution had not formally made an application. This is not a matter I need to determine for the purpose of the application for leave to appeal out of time. I do, however, question the validity of the order made by the sentencing magistrate in circumstances where section 11(6) of the Sex Offenders Registration Act relevantly provides that the court may only make an order under this section if an application for the making of the order is made by the prosecution not later than 45 days after the sentence is imposed.
Conclusion
36In all the circumstances, I am satisfied that the applicant has discharged the test of exceptional circumstances for failing to lodge the appeal within the 28-day time period. The exceptional circumstances in this case are that, without the knowledge of the parties, an order placing the applicant on the Sex Offenders Register was made. As a result, although the applicant was advised generally of his appeal rights, his solicitor was unable to advise him specifically of his appeal rights in relation to the sex offender registration. As a consequence the applicant has had incomplete legal advice through no fault of his own or that of his legal advisors.
37It follows that I grant leave to the appellant to appeal in respect of the sentence imposed at Bacchus Marsh Magistrates’ Court on 22 January 2021.
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