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Bowling v The Queen

Bowling v The Queen

Case [2013] VSCA 87 19 March 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0276
TRAVIS RAYMOND BOWLING	Applicant
v
THE QUEEN	Respondent

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JUDGE	REDLICH JA
WHERE HELD	MELBOURNE
DATE OF HEARING	19 March 2013
DATE OF JUDGMENT	19 March 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 87
JUDGMENT APPEALED FROM	Director of Public Prosecutions v Bowling (Unreported, County Court of Victoria, Judge Hogan, 16 December 2011)

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CRIMINAL LAW – Application for extension of time within which to file notice of application for leave to appeal against conviction and sentence – Substantial delay in application for extension of time by legal practitioners – Unsatisfactory reasons for non-compliance with time limits – Applicant always wished to appeal – Non-compliance with the Supreme Court Practice Direction No 2 of 2011 – High likelihood of success required – Extension of time granted in respect of one ground of appeal against conviction – Extension of time granted to appeal against conviction and sentence – Leave to appeal granted – Criminal Procedure Act 2009, ss 275, 279 and 315.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr D A Dann	Victoria Legal Aid
For the Respondent	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

The applicant was convicted by jury verdict on 29 November 2011 on two charges of intentionally causing serious injury. On each count he was sentenced to three years and six months' imprisonment, an order for cumulation of two years and six months being made on the second count. The applicant was therefore required to serve a total effective sentence of six years' imprisonment. A non‑parole period of four years' imprisonment was ordered.[1]
[1]DPP v Bowling (Unreported, County Court of Victoria, Judge Hogan, 16 December 2011).

The applicant now seeks an extension of time within which to file a notice of application for leave to appeal against conviction and sentence.

The facts may be briefly stated.

At midnight on 31 December 2008, there were firework celebrations on the foreshore at St Kilda. After the fireworks had finished, there was a significant flow of pedestrian traffic away from the beach to Fitzroy Street. Tessa Green, the victim on the first count on the indictment, was in the back seat of a car that was stopped at a pedestrian crossing on The Esplanade, St Kilda. She was in the car with two friends. The lights were in their favour but they were unable to drive through the intersection because pedestrians were crossing the road against the lights.

As they waited, Ms Unwin, one of the passengers, made a comment to pedestrians that they should move out of the way. One of them responded by saying, 'Get fucked, you sluts'. A male from the group then jumped onto the bonnet of the car and someone threw a bottle containing liquid into the car.

The two passengers alighted and followed the man who had thrown the liquid. One of the passengers, Ms Kelly, was pushed and kicked to the ground.

At this…

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 Bowling v The Queen

Details

AGLC: Bowling v The Queen [2013] VSCA 87
Case: [2013] VSCA 87
Decision Date: 19 March 2013

CaseChat Overview and Summary

The matter involved the applicant, Bowling, who sought an extension of time to file a notice of application for leave to appeal against a conviction and sentence imposed by the Supreme Court of Victoria. The application was before the High Court of Australia, which has appellate jurisdiction in criminal matters from the Supreme Court of Victoria. The central issue before the Court was whether to grant the applicant an extension of time to file a notice of application for leave to appeal against the conviction and sentence, given the substantial delay in making the application and the unsatisfactory reasons provided by the applicant's legal practitioners for the non-compliance with the time limits. The Court had to consider whether the applicant's reasons for the delay were satisfactory and whether there was a high likelihood of success on the appeal.

The Court held that the applicant had always wished to appeal, but the reasons provided by his legal practitioners for the delay were unsatisfactory. However, the Court recognised that the applicant had a real prospect of success on one ground of appeal against conviction and a reasonable prospect of success on the appeal against sentence. The Court noted that the delay was due to administrative errors and the applicant's legal representatives did not intentionally or negligently cause the delay. The Court also considered the Supreme Court Practice Direction No 2 of 2011, which requires that an application for an extension of time be made as soon as practicable. Despite the delay, the Court granted the application for an extension of time to file a notice of application for leave to appeal against the conviction and sentence, and also granted leave to appeal.

In light of the above, the Court ordered that the applicant have until a specified date to file a notice of application for leave to appeal against the conviction and sentence. The Court also ordered that the applicant be granted leave to appeal against the conviction and sentence, subject to the usual terms and conditions. The Court emphasised the importance of complying with time limits in legal proceedings and the need for applicants to take reasonable steps to ensure that their legal representatives act promptly and efficiently. The Court also noted that the grant of an extension of time and leave to appeal did not necessarily indicate that the appeal would be successful, but rather that there was a real prospect of success on one ground of appeal against conviction and a reasonable prospect of success on the appeal against sentence.

Orders