Bowling v The Queen
[2013] VSCA 87
•19 March 2013
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 point, Tessa Green attempted to intervene and assist her friend. She approached the person whom she had seen kicking her friend and said, 'What are you doing?'. Following this, Ms Green's hair was pulled by a woman with dark long hair, and Ms Green hit the woman in self‑defence. The applicant, who was standing behind Ms Green, then struck her to the left side of her face with a closed fist (Charge 1). As Ms Green fell to the ground, she hit a chair occupied by Cheryl Barassi. Ms Barassi, her husband, Ron Barassi, and his cousin, Kenneth Barassi and another friend were seated at a table outside Santos on Fitzroy Street.
Mr Barassi saw the blow to Ms Green's head, Ms Green falling to the ground and the applicant moving away. He stood, and within seconds began to chase the applicant up Fitzroy Street, away from the beach. Mr Barassi tackled the applicant to the ground. They both landed on the ground. A number of other young men began to kick Mr Barassi. The applicant got up, turned to Mr Barassi and kicked him to the head a number of times (Charge 3).
The assault continued until one Boris Kanter, the owner of a nearby bar, intervened. The applicant then ran off up Fitzroy Street.
Mr Barassi was assisted back to his table and was attended by family who gave him ice for his injuries and he went home. He attended at the Cabrini Hospital the next day, complaining of shoulder pain and reported that he believed he had been kicked in the head. A CT scan of his head showed no internal bleeding.
There were two principal defences pursued at trial concerning the second victim, Mr Barassi. First, the identity of the person who kicked Mr Barassi in the head was disputed. Secondly, it was submitted that the injuries which Mr Barassi sustained to the head were not serious injuries. The notice of appeal is only concerned with the conviction relating to the second victim.
The grounds of appeal are as follows:
(1)The learned trial judge erred in directing the jury that they could take into account Ron Barassi's problems with memory when considering whether he had suffered a 'serious injury'.
(2)The guilty verdict of the jury on Charge 3 is unsafe and unsatisfactory in that a jury acting reasonably could not exclude the possibility that persons other than the applicant were responsible for some or all of the injuries that were said in combination to amount to it a 'serious injury'.
Before turning to the merits of these grounds, I turn first to consider the failure to comply with the time limits prescribed under the Criminal Procedure Act2009 (“the Act”) for commencing an appeal.
An application for leave to appeal against conviction or sentence under the Act must be commenced by filing a notice in accordance with the rules of Court within 28 days of sentence.[2]
[2]See ss 275 and 279 of the Criminal Procedure Act 2009.
Where the time for filing a notice of application for leave to appeal has expired, then pursuant to s 313 of the Act, the Court or the Registrar of the Court of Appeal in accordance with the rules of Court, may at any time extend the time to do so. The applicant must show, however, that the circumstances are such that the discretion to extend the time in which the applicant should be permitted to file such a notice should be exercised in the applicant's favour.
The time limits set out in the rules of Court are not to be treated as some empty formality. The rules are intended to ensure finality of the litigation and compliance with time limits will be required in the ordinary case. The applicant must generally place material before the Court which will persuade the Court that there are special and substantial reasons to extend the time.[3]
[3]See R v O'Keefe (1979) VR 1, 4; R v Darby (Unreported, Supreme Court of Victoria, 2 May 1975).
The longer the time which has elapsed since the expiration of the prescribed period, the more special the circumstances will have to be. Where there is a considerable lapse of time, the practice of the Court is not to grant the extension unless the Court is satisfied that there are such merits in the proposed appeal that it would probably succeed. These considerations have been repeated by this Court on numerous occasions.[4]
[4]R v Davis (2003) 6 VR 538; DPP v Hayden [2006] VSCA 152; R v Croft [2008] VSCA 61.
An applicant who is dilatory or who has acted so as to indicate that they do not intend to appeal has no entitlement to an expectation that the discretion will be exercised in their favour. Even where the applicant demonstrates that there are substantial reasons for delay, if there has been a significant delay, the grant of an extension of time will ordinarily depend upon the applicant establishing that the decision is so attended by doubt as to render it likely that the appeal will succeed.[5]
[5]R v Davis (2003) 6 VR 538, 539 [6] (Winneke ACJ); R v Croft [2008] VSCA 61, [21] (Kellam JA).
Even where the lapse of time is short, the applicant must show that the appeal has sufficient prospects of success.[6] Thus, though a ground belatedly raised may have some merit, its merit may sometimes be overwhelmed by other considerations which tell against a grant of an extension of time.[7]
[6]DPP v Hayden [2006] VSCA 152, [13] (Maxwell P and Vincent JA).
[7]Keshtiar v The Queen [2011] VSCA 122, [29] (Ashley JA).
The new practice directions are designed to ensure that in addition to the obligation to give prompt notice of the intention to appeal, a written case must be filed which outlines the issues the applicant wishes to pursue.[8] The practice directions place further responsibility for prompt notification of these matters with the legal practitioners who represented the applicant at the time of trial or sentence. The Court's ability to deal efficiently and expeditiously with criminal appeals thus depends upon the profession's adherence to the time limits imposed under the Act and compliance with the procedures contemplated by the rules and practice directions. The unavailability of trial transcript or exhibits does not provide an excuse for non-compliance. Counsel and those instructing him or her at the trial or on sentence are, it must be assumed, able to draw necessary grounds of appeal and an appropriate written case setting out in substance why there is merit in those grounds.
[8]Supreme Court of Victoria, Practice Direction No 2 of 2011 (First Revision) (“practice directions”), s 4.
Furthermore, the new regime does not permit delay because new solicitors of an applicant's choosing or counsel of choice is either unavailable or cannot give the matter the immediate attention required.
Even where an applicant is out of time through no fault of his or her own, the applicant will be required to demonstrate to a higher standard that the appeal has prospects of success. That burden is a direct result of non-compliance with time limits by the applicant’s legal representatives.
I now turn to the delay in this case which is to be judged by the principles to which I have just referred.
It is to be noted that the applicant was sentenced on 16 December 2011. The applicant, in an unsworn affidavit dated November 2012, and which I was told was likely prepared with the assistance of his now solicitors, stated that he was informed by his barrister at time of sentence on 16 December that he would likely receive a lengthy term of imprisonment, and 'there was already an appeal in progress'. He confirmed to his barrister that he wished to appeal both his conviction and sentence.
Following his sentence he deposes that he was transferred to the Melbourne Assessment Prison where he was advised by a fellow prisoner that Ms Zarah Garde‑Wilson might be able to assist him with an appeal. He made contact with her. She attended at Port Phillip Prison in January 2012, but in February 2012, when advised that a sum of money would have to be placed in trust, the applicant realised he was unable to afford her services.
Following this, in February 2012, he was advised by another prisoner to approach Defteros Lawyers. They attended that month and also made a request for funds which he was unable to afford. Consequently in March 2012, he made a request of the Victorian Legal Aid duty lawyer service to make contact with the lawyers who had acted for him during the trial. He was eventually contacted by his former solicitor whom he instructed to proceed with an appeal against conviction and sentence.
The applicant states that since March 2012, he has had no further contact with his solicitor whom he believed had commenced to process his application and was simply awaiting a date for his appeal to be heard. He further deposes that he was not advised that his appeal had not been initiated until he was contacted by Mr Huynh of Legal Aid in late August 2012 who had arranged to take over the carriage of the matter from his solicitors. The applicant states that he then again confirmed he wished to appeal against conviction and sentence.
Understandably, the applicant states that the delay in lodging the appeal has been attributed to the conduct of the various lawyers with whom he was dealing, and that he at all material times believed that from March 2012 his former lawyers had the matter in hand.
A further affidavit was filed from the solicitor from Legal Aid who states that he was contacted in early August 2012 when the file was transferred from the offices of the applicant's former solicitors to Legal Aid. At that time Mr Huynh was advised that the applicant wished to appeal against his conviction and sentence and that counsel was to be briefed to settle the written case. No notice of appeal had yet been lodged.
No explanation has been provided to the Court as to the lapse of time between March and August 2012, saved that I was informed by counsel this morning that some difficulties then existed between Legal Aid and the applicant's solicitors which may have resulted in the applicant's solicitors not being approved as practitioners who could act in legal aid matters. Beyond that information from the bar table, nothing has been placed before the Court to explain that delay. A written explanation by the applicant’s former solicitors was necessary.
I was also told this morning that the applicant had made a decision immediately following his conviction that he no longer wished to have the solicitors then retained continue to act for him. That information had not been included in the material provided to the Court.
Mr Huynh in his affidavit continues that following the receipt of the file from the applicant's former solicitors, Legal Aid made a request for the charge and sentencing remarks, and after some short delay, that material was provided, it appears, by approximately the end of August.
Again there is no explanation proffered to the Court for the delay which occurred between late August 2012 and the time that the notice of application for leave to appeal and written case were filed with the Court in December 2012.
Having regard to the principles to which I have referred, I therefore examine the merits of the two grounds of appeal on the basis that it will be necessary for the applicant to demonstrate that one or either of these grounds is probably likely to succeed.
In relation to the first ground, having reviewed the judge's charge, it seems to me clear that the trial judge, in directing the jury as to what would constitute serious injury, instructed the jury that serious injury would include psychological injury, and in that context referred to the evidence of Mr Barassi that he had had difficulties with his memory since the assault.
Her Honour told the jury:
As I have said, you're entitled to take into account the combination of injuries to the head as you find them to be as well as any psychological impact if you find it attributable to those injuries. You'll bear in mind that the evidence before you from Dr Jansen was that at the time of the injury Mr Ron Barassi was a 72‑year‑old man with a history of irregular heartbeat for which he was on Warfarin and you will bear in mind that Mr Barassi says that his memory has suffered as a consequence of this attack.
Her Honour earlier said to the jury:
... that serious injury includes psychological injury or impairment which may have arisen.
Then her Honour whilst reciting the evidence of a critical Crown witness, added the observation:
There is no need for me to tell you that the brain is inside the head. You are entitled to use your commonsense and appearance.
In the respondent's initial written case, it was submitted that her Honour's direction would not have been understood by the jury as enlarging the scope of the serious injury upon which the prosecution relied, but that her Honour was merely reminding the jury of the victim's explanation for why he could not remember on which side of his face he had sustained bruising. However, in oral submissions this morning, counsel for the Director, in what appeared to me to be a shift in position, submitted that loss of memory fell within the concept of psychological injury or damage, and that it would have been so understood by the jury and that it did not involve any enlargement of the prosecution case.
Obviously, if the Crown was relying upon the victim's loss of memory as being a consequence of the injuries which he sustained at the hand of the applicant, it would have been necessary to demonstrate in some way that there was a causal connection between that loss of memory and those injuries. No such evidence was adduced because it does not appear to me that that was the case which the prosecution was seeking to mount during the trial. It was not until the judge's charge that the notion that serious injury could encompass loss of memory was ventilated for the first time.
For those reasons, I am persuaded that there is not only arguable substance in the first ground of appeal but that it will probably succeed as presently advised. I would, therefore, on that ground, grant an extension of time.
I am not of the same view in relation to the second ground of appeal.
The Crown case, that it was the applicant who inflicted the head injuries to Mr Barassi, rested almost entirely upon the direct observations of the witness Boris Kanter, who said that he observed the applicant kick the victim to his head. His evidence was otherwise that he observed other persons around the body of the victim kicking other parts of his body, but neither he nor any other witness in the trial stated that they observed anyone other than the applicant kick the victim's head.
In oral argument this morning, counsel for the applicant submitted that ground 2 was put on two bases. First, that the jury could not be satisfied beyond reasonable doubt by Mr Kanter's evidence that the applicant kicked the victim to the head. That was the primary issue before the jury at trial. The judge's charge, in a compelling way, makes plain to the jury that that was the primary issue which they were required to determine. I can see no basis on that limb of ground 2 for concluding that there is reasonable prospect that that ground would succeed.
Turning to the second limb, it was submitted that as the victim had sustained three bruising injuries to his head, the jury should not have been satisfied beyond reasonable doubt that it was the applicant who caused all of those injuries. That was not an issue that was raised, it appears, in the trial.
On the basis of Mr Kanter's evidence, being the sole evidence concerning the applicant and his kicking of the victim, it was open to the jury to conclude that the applicant, and no‑one else, kicked the victim to his head so as to cause those injuries.
Having regard to the way in which the trial was conducted and bearing in mind the onus which rests upon the applicant in seeking an extension of time, I would not extend the time to file a notice of application for leave to appeal on this ground.
I turn then to the application for leave to appeal against sentence and to seek leave out of time.
In my view, the sentences imposed for these assaults are susceptible to the reasonable argument that they are both manifestly excessive and that the total effective sentence is manifestly excessive. If the injuries to Mr Barassi were not to be viewed in law as serious, then so much the more likely that the sentence imposed is excessive. But even if the injuries do fall within the category of serious injuries, in my view the prospect of success is sufficiently high to justify an extension of time within which leave to appeal should be granted.
For those reasons I will order that there be an extension of time within which to file a notice of leave to appeal on ground 1 and to appeal against sentence. I would grant leave to appeal as to both conviction and sentence.
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