Borg v The King - [2024] VSCA 65

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0180

LEONARD BORG	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, TAYLOR and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2024
DATE OF JUDGMENT:	16 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 65
JUDGMENT APPEALED FROM:	DPP v Borg (Unreported, Supreme Court of Victoria, 2 April 2012, Lasry J)

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CRIMINAL LAW – Appeal – Conviction – Murder – Application for an extension of time – Whether defence counsel incompetent – Where counsel’s cross-examination relied on an overheard conversation between witnesses – Where counsel accused a witness under cross-examination of being the murderer – Where counsel’s cross-examination criticised by trial judge for repeating prosecution case – Incompetence not demonstrated – Application for an extension of time refused – TKWJ v The Queen (2002) 212 CLR 124 considered.

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Counsel
Applicant:		Mr C Mandy SC with Mr G Chipkin for the Applicant
Respondent:		Mr M D Stanton and Mr G Buchhorn for the Respondent
Solicitors
Applicant:	Christopher Dale OAM
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA
KAYE JA:

Introduction

Almost 12 years ago, on 2 April 2012, after a trial in the Supreme Court of nine weeks’ duration, a jury found the applicant guilty of murdering an associate, Peter Rule.
Following the jury’s verdict, the applicant pleaded guilty to handling stolen goods and cultivating a narcotic plant, cannabis.
On 21 November 2012, the judge imposed a total effective sentence of 23 years and nine months’ imprisonment, with a non-parole period of 19 years.[1] That sentence was, however, held to be manifestly inadequate on an appeal by the Director of Public Prosecutions, and, on 22 July 2013, this Court resentenced the applicant to a total effective sentence of 28 years and nine months’ imprisonment, with a non-parole period of 24 years and nine months.[2]
[1]DPP v Borg [2012] VSC 565 (Lasry J).
[2]DPP v Borg [2013] VSCA 181 (Buchanan, Nettle and Osborn JJA). The individual sentences were 28 years’ imprisonment for murder; 12 months’ imprisonment for handling stolen goods; and three years’ imprisonment for cultivating a narcotic plant.
On 1 December 2022 — about a decade out of time[3] — the applicant sought to file a Notice of Application for Leave to Appeal Against Conviction (‘the Notice’) and Written Case, together with an application for an extension of time within which to file the Notice (‘the application’). The application for an extension of time was supported by an affidavit sworn by the applicant on 6 November 2022 (‘the affidavit’).
[3]By virtue of s 275(1) of the Criminal Procedure Act 2009, any application for leave to appeal was required to be filed within 28 days after the applicant was sentenced; that is, on or about 29 November 2012.
If granted an extension of time, the applicant seeks leave to appeal against conviction on a single ground: ‘A substantial miscarriage of justice resulted from the incompetence of defence counsel’.
For the reasons that…

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 Borg v The King

Details

AGLC: Borg v The King [2024] VSCA 65
Case: [2024] VSCA 65
Decision Date: 16 April 2024

CaseChat Overview and Summary

In the case of Borg v The King, the appellant, Borg, sought an extension of time to appeal his conviction for murder, challenging the competence of his trial counsel. The High Court of Australia was tasked with deciding whether Borg's trial counsel was incompetent, which allegedly contributed to a miscarriage of justice. The basis for this challenge included instances where the counsel's cross-examination was said to have relied on an overheard conversation between witnesses, accused a witness of being the murderer, and was criticised by the trial judge for repeating the prosecution's case.

The court needed to determine whether Borg's trial counsel was indeed incompetent and if such incompetence led to a miscarriage of justice. The court closely examined the instances cited by Borg, including the reliance on an overheard conversation, the accusation made during cross-examination, and the judge's criticism of the counsel's approach. Despite these concerns, the court found that none of these instances demonstrated incompetence to the extent that it would have caused a miscarriage of justice. The court considered that the jury understood and applied the trial judge's directions properly.

The reasoning of the court was grounded in the understanding that for an extension of time to be granted, it must be shown that there was a satisfactory reason for the delay and that the incompetence of counsel led to a miscarriage of justice. The court concluded that even if Borg had provided a satisfactory reason for the delay, it would have been futile to grant an extension of time since the alleged incompetence did not meet the required threshold. The case of TKWJ v The Queen was considered, reinforcing the court's decision that the incompetence must be significant enough to impact the fairness of the trial.

The court ultimately refused the application for an extension of time. The reasoning was that the alleged instances of incompetence did not reach the level necessary to justify a finding of miscarriage of justice, and thus, an extension of time would not be granted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

We have no reason to think that the jury would not have understood and applied these directions.Conclusion Properly analysed, none of the matters relied upon by the applicant could found the conclusion that senior counsel’s incompetence caused his trial to miscarry. In those circumstances, even had the applicant advanced a satisfactory reason for his delay in attempting to invoke this Court’s jurisdiction, it would be futile to grant an extension of time. The extension of time will be refused.

Ratio Decidendi

Legal Principle Established

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