Dalton v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0209

ALLAN RAE DALTON	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 December 2023
DATE OF JUDGMENT:	21 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 333
JUDGMENT APPEALED FROM:	DPP v Dalton [2019] VCC 1507 (Judge Higham)

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CRIMINAL LAW – Appeal – Conviction and sentence – Application for extension of time to appeal – Applicant convicted of obtaining a financial advantage from the Commonwealth and attempting to obtain a financial advantage from the Commonwealth – Three year delay in filing application – Explanation for delay unsatisfactory – Absence of merit in proposed grounds of appeal – Application refused.

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Counsel
Applicant:		In person
Respondent:		Mr J Shaw
Solicitors
Applicant:	Unrepresented
Respondent:	Commonwealth Director of Public Prosecutions

PRIEST JA
BEACH JA:

An indictment filed in the County Court charged the applicant with dishonestly obtaining a financial advantage from the Commonwealth[1] (16 charges – charges 1 to 16) and attempting to dishonestly obtain a financial advantage from the Commonwealth[2] (one charge – charge 17). Following a trial during which he was represented by counsel (and solicitor), a jury found the applicant guilty of all charges on 25 February 2019.
[1]Criminal Code 1995 (Cth), s 134.2 (1).
[2]Criminal Code 1995 (Cth), ss 11.1 and 134.2 (1).
A plea in mitigation was heard over three days — 22 May, 9 July and 13 September 2019 — and, on 16 September 2019, the trial judge sentenced the applicant to an aggregate sentence of six years and nine months’ imprisonment, with a non-parole period of four years and nine months.
On 7 December 2022 — more than three years out of time[3] — the applicant lodged a document for filing styled an ‘Application for Extension of Time to File/Serve Notice of Appeal or Notice of Application to Appeal’.[4] That document failed to state whether he wished to challenge his conviction or sentence (or both). He also lodged for filing a ‘General Application – Application for Bail Pending Appeal’. These documents were accompanied by a document entitled ‘Application for Leave to Appeal Against Severity of Sentence’, ostensibly signed by the applicant, dated 7 December 2022, and two affidavits, sworn by the applicant on 7 December 2022.
[3]See Criminal Procedure Act 2009, ss 275(1) and 279(1).
[4]See Criminal Procedure Act 2009, s 313.
Subsequently, the applicant has forwarded to the Registry at least two (and perhaps three) versions of an ‘Application for Leave to Appeal Against Conviction’, the first version containing 14 grounds of appeal, and the second (and third) version containing seven grounds of appeal. The applicant has also lodged for filing a revised ‘Application for Leave to Appeal Against Severity of Sentence’, dated 7 February 2023, containing four grounds. These documents have not been accepted for filing by the Registry.
On 21 April 2023, the Registry accepted for filing an ‘Application for Extension of Time to File/Serve Notice of Appeal or Notice of Application to Appeal’, accompanied by three affidavits: first, an affidavit sworn by the applicant on 7 December 2022; secondly, an affidavit sworn by the applicant on 21 April 2023; and, thirdly, an affidavit also sworn by the applicant on 21 April 2023. The Registry also accepted for filing on 21 April 2023 a ‘General Application – Application for Bail Pending Appeal’.
Hence, the two applications currently before the Court are, first, an application under s 313(1) of the Criminal Procedure Act 2009 to extend the time within which notices of application for leave to appeal against conviction and sentence may be filed; and, secondly, an application for bail pending appeal.
For the reasons that follow, we are of the view that the application for an extension of time must be refused. It is thus unnecessary to consider the application for bail.
The principles that govern an application for extension of time were set out in Madafferi:[5]
The applicant carries the burden of persuading this Court that an extension of time should be granted. When considering the application, it must be acknowledged that time limits exist for sound reasons. Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition (consistently, of course, with the imperative of correcting substantial miscarriages of justice).[6] The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal.[7] Although the exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances of the case,[8] the length of the delay — and the reasons for it[9] — and the prospects of success should the extension be granted,[10] are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise.[11] Thus, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the court may incline towards granting an extension. Where the merits of the proposed appeal are very poor, however, even a satisfactory explanation for the delay might not justify an extension.[12] The discretion must, as we have said, be exercised according to the individual facts of each case.[13]
[5]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
[6]Jopar v The Queen (2013) 44 VR 695, 707 [59] (Priest JA) (‘Jopar’).
[7]Ibid 707 [60].
[8]Kentwell v The Queen (2014) 252 CLR 601, 613 [30] (French CJ, Hayne, Bell and Keane JJ).
[9]Ibid 614 [31].
[10]Ibid 614 [33]. See also Rapovski v The Queen [2017] VSCA 175 [25] (Priest JA).
[11]Jopar (2013) 44 VR 695, 707 [60].
[12]Ibid.
[13]Ibid.
In our view, the applicant’s explanations for failing to file notices within the prescribed time to challenge his conviction and sentence are devoid of substance. No satisfactory reason was advanced for the inordinate delay. Moreover, his proposed grounds of appeal are so lacking in merit, and his prospects of success on appeal against either conviction or sentence so poor, that it would not be in the interests of justice to grant an extension of time.
The applicant’s offending was summarised in the trial judge’s reasons for sentence.[14] It is unnecessary to repeat that summary. For present purposes it is enough to observe that the applicant’s offending related to the lodgement of 16 false business activity statements (‘BAS’) for the period from March 2010 to June 2011, and consequent payment of refunds by the Australian Tax Office (‘ATO’) (charges 1 to 16), and the submission of a false BAS for the period July 2011, in respect of which no refund was issued (charge 17). The applicant deliberately and falsely overstated the expenditure of a company, Greenhills Grange Property Limited (‘Greenhills’) — which was involved in a property development in Greensborough — thereby obtaining a greater Goods and Services Tax refund from the ATO than was due.
[14]DPP v Dalton [2019] VCC 1507, [3]–[16].
In the Application for Extension of Time to File/Serve Notice of Appeal or Notice of Application to Appeal, filed 21 April 2023, the applicant sets out the following reasons for failing to file or serve a notice within the prescribed time, and the grounds on which the application is made, as follows:
1Subsequent to my being sentenced I have never had a meaningful discussion with my legal representative who appeared in court on my behalf.
2Subsequent to my being sentenced, I was in discussions with senior counsel who advised me that I have very strong grounds for appeal, I communicated the details of the basis of my appeal grounds to this counsel.
3Subsequent to my being sentenced, I requested the Brief of Evidence in my matter be forwarded to senior counsel from the barrister who represented me in court. This took some months to transfer the file.
4Some months after my being sentenced, I spoke to the principal of the law firm who represented myself, [named] via Video Link, and after she perused only one document I was advised I must appeal the sentence on the basis of ‘incompetence of counsel’ as the document submitted to the court was factually incorrect and effectively worked against my best interests as a result.
5I continued with discussions and correspondence with the senior counsel above who continually stated there were strong grounds for appeal. Throughout this period I was corresponding by mail seeking documents to assist in my appeal.
6In early 2020, the country was subject to the outbreak of the COVID–19 pandemic and there were significant disruptions to business, the courts and the legal system as a whole. Legal counsel were not attending court or their chambers. I continued my search for relevant documents to assist in my appeal.
7In early 2021, Corrections Victoria transferred myself to the Beechworth Correctional Centre, but all my legal documents were held at Margoneet Correctional Centre. It took me some months to get these documents forwarded to me to allow me access to them.
8During 2021, the senior counsel above advised he would not proceed in the matter on the basis of ‘incompetence of counsel’ as he knew my previous counsel – and his father. He has a personal interest and declined to act. He referred me to lawyers in Footscray, who advised they were too busy to even read the file.
9Subsequently I have had to prepare my application as best as I could, having had no formal legal training.
10I have finally completed the documents to the best of my ability and submit them to the court accordingly.
11My intention is to have the matter accepted and lodged with the court, seek appeal bail, and then obtain legal representation and locate and assemble all the documents and evidence I require to have my matter heard appropriately.
12Throughout my dealings with the Executive in relation to applications for:–
a.Part/Full Remission of Sentence
b.Early Release on Licence
c. Parole Applications
I have always made it clear that I would hold back on litigating the matter whilst the Executive considered the applications for the reasons of saving the courts time and resources and the costs and inconvenience associated for both parties. The Executive have failed in their obligations to address the applications in a realistic time frame and therefore the applicant has been reluctantly forced to resort – after an extended timeframe – to litigating the matter through this court. The greatest portion [of] responsibility for the delay in lodgement of the applications lies solely with the delay in processing the above applications by the Executive. All relevant documentation and correspondence can be made available to the court if required.
As we have mentioned, the applicant swore two affidavits on 21 April 2023. The second of those replicates much of what is in the first. So far as relevant, it is in the following terms:
2Subsequent to my being sentenced, it took many months to obtain all of the relevant documentation, transcripts, court video and brief in relation to my matter.
3In discussions with the principal of the law firm which represented myself at trial, late in December 2019, I was advised that I must appeal my conviction and sentence on the basis of incompetence of counsel but that the firm could not represent me in that matter.
4It took many months to discuss the matter of an appeal with counsel who acknowledged I had strong grounds for appeal.
5My efforts were severely affected by the COVID–19 pandemic with courts and other organisations limited due to restrictions imposed by the pandemic.
6Upon my transfer to Beechworth Correctional Centre from Margoneet Correctional Centre, my box of files and documents were not transferred with me and it took some additional months for these documents to reach myself.
7Due to the pressures on my partner and the frequency of burglaries at our home at the very times she was visiting myself at Margoneet, she was fearful and forced to move ‘for her own safety’. Such move resulted in many documents and belongings being packed and placed in storage for security. My partner does not know which of these documents are relevant to my appeal, or specifically where said specific documents are, and it would be a major project for her to wade through all the stored items to locate them.
8I have recently obtained a report produced by accounting firm PKF which outlines specific failures in the prosecution case presented to the court against myself.
9The report outlines failings by the accountant Tobias^[[15]] in his conduct whereby he unlawfully submitted BAS claims to the ATO. These failures constitute breaches under the Taxation Act which would allow for an action against Tobias for his failures which have caused the applicant loss and damages if such an action was not time barred.
[15]Kenneth Tobias was an accountant. From October 2009, the applicant had assumed responsibility for all Greenhills’ bookkeeping and for the lodging of the company’s BAS. The applicant provided to Tobias (or a member of his staff) the figures for the BAS statement. Those figures were then used to prepare the relevant statement, which would be lodged electronically with the ATO through the tax agent portal.
10I have recently obtained a document downloaded from the ATO website, under ATO letterhead, which clearly demonstrates why the answer given by the prosecutor to a juror’s question which was adopted by the presiding judge and forced onto the jury as a whole, is absolutely incorrect.
11This contradiction in 9 above would have been known as incorrect by the ATO investigator and the Commonwealth Police Officer who had conduct of the matter and who were present in the court at the time. They chose to say nothing and further chose not to correct the prosecutor, knowing his answer was clearly wrong at law.
12This contradiction in 9 above absolutely questions thereby undermining Quantum and conviction.
13I have further been delayed by restriction of access to computer facilities as a result of lockdowns at this site on a number of occasions due to the introduction of COVID–19 to this site.
14In as a result of 12 above, there are currently draconian restrictions in place at Beechworth Correctional Centre as a result of the latest introduction of COVID–19 to Beechworth by the transfer of infected prisoners from the Ravenhall ‘hot spot’ who were placed randomly in the prison population without being tested for COVID–19 upon their arrival at this site.
15As a consequence of 12 above currently approx. 50% of the inmates at this site have tested COVID positive, with a further percentage being treated as close contacts.
16Since the COVID pandemic struck, the applicant has made application to the Executive for:–
a.   Part/Full Remission of Sentence
b.   Early Release on Licence
c.   Parole
as a consequence of the COVID response. Throughout this time, in good faith, in all correspondence it has been made clear the applicant would not move forward with litigation to the Appeals Court, or Judicial Reviews for failure to address the applications or for failures to make a decision. The delays caused by failure of the Executive to address these applications was the predominant reason for delays in making the applications to the court. It became obvious to the applicant after an extended timeframe, that although the applicant was attempting to save the courts resources, avoid costs for all concerned and settle the matter in a simple, fair and just manner, the applicant had no option but to resort to the Appeals Court. Copies of all applications and all correspondence between the parties will be made available to the court and all parties upon request.
Neither the application nor the affidavit material provides any adequate explanation for the delay in endeavouring to invoke this Court’s jurisdiction. Among other things, the following observations may be made about the reasons advanced by the applicant for his failure to file notices of application for leave to appeal within the prescribed time.
First, in his application, the applicant states that, subsequent to being sentenced, he was in discussion with ‘senior counsel’, who told him that he had ‘very strong grounds for appeal’. Precisely when these discussions took place, however, and what grounds (against conviction or sentence or both) that counsel considered to be ‘strong’, are not identified. Certainly the applicant has produced no supporting material from ‘senior counsel’.
Secondly, in his application, the applicant states that ‘some months’ after being sentenced he spoke to the principal of the law firm who represented him, and she told him he must appeal the sentence based on trial counsel’s incompetence. In his affidavit, however, the applicant swore that he spoke to the principal of the firm in late December 2019, and she told him he ‘must appeal [his] conviction and sentence on the basis of incompetence of counsel but that the firm could not represent [him] in that matter’. There is nothing in the material to suggest that, in the period between being sentenced (on 16 September 2019) and late December 2019, the applicant sought any advice about the prospects of appealing, let alone took any steps to initiate an appeal (whether against conviction or sentence).
Thirdly — and very significantly — the material is silent as to any steps that the applicant may have taken throughout the whole of 2020 to initiate appellate proceedings. The only reference to the year 2020 is in his application, in which the applicant asserts that in early 2020 the country was subject to a COVID–19 pandemic, so that ‘there were significant disruptions to business, the courts and the legal system as a whole’. Acknowledging that it was not business as usual, this Court’s own experience is that, despite the pandemic, lawyers were available to advise on prospective appeals; appellate proceedings continued to be initiated; and the Court of Appeal continued to function, throughout the whole year. We would infer from the dearth of material, that the applicant did nothing meaningful throughout that year to initiate appellate proceedings.
Fourthly, there is scant material as to any steps that the applicant might have taken in 2021 to appeal. In his application, he asserts that, at some unspecified time in 2021, senior counsel advised that he would not ‘proceed in the matter on the basis of “incompetence of counsel” as he knew [the applicant’s] previous counsel – and his father’. The applicant also states that he was referred to lawyers in Footscray, ‘who advised they were too busy to even read the file’. Once more, there is no supporting material from senior counsel. Nor is there anything to suggest that the applicant took any other steps throughout that year to advance his case (or cases) on appeal.
Fifthly, in his application the applicant states that, after senior counsel said he could not act, he (the applicant) had to prepare his application as best he could. Very significantly, however, the applicant did not lodge an application for extension of time with the Registry until 7 December 2022. Even making due allowance for the fact that the applicant was unrepresented, that is an inordinate delay, for which the applicant has failed to advance any acceptable explanation.

Sixthly, and most importantly, it appears that the real reason for the applicant’s failure to initiate appellate proceedings may be gleaned from both his application and the affidavit material. In his application the applicant states that he has ‘always made it clear that [he] would hold back on litigating the matter whilst the Executive considered the applications’ he had made for remission of sentence, release on licence or parole. It is thus abundantly clear that the applicant made a deliberate choice not to invoke this Court’s jurisdiction, hoping instead that he would obtain alternative relief from ‘the Executive’.
Quite apart from the failure to provide any adequate explanation for the delay, the proposed grounds of appeal are, as we have indicated, bereft of merit. As to conviction, the proposed grounds of appeal in the most recent version of the Application for Leave to Appeal Against Conviction appear generally to raise the following overlapping complaints: first, defence counsel was incompetent (grounds 1, 2 and 7); secondly, delay in laying charges against the applicant caused a miscarriage of justice (ground 3); thirdly, the applicant did not have access to documents necessary in his defence (grounds 3 and 4); fourthly, the prosecution introduced inadmissible evidence (ground 5); and, fifthly, in answer to a jury question, the judge misdirected the jury (ground 6).
With respect to sentence, the applicant’s grounds appear to raise the following (once more overlapping) complaints: incompetence of counsel (grounds 1, 2 and 3); manifest excess (ground 3); and an aggregation of errors (ground 4).
So far as conviction is concerned, we are unable to see anything in the material that would suggest that trial counsel was unprepared for trial, or lacked understanding of the crucial issues. Beyond bald assertion, the applicant does not say how any deficiencies in counsel, or in counsel’s conduct of the trial, resulted in a miscarriage of justice. Further, we are unable to see how the length of time that elapsed between the commission of the offences and the laying of charges could have caused any substantial miscarriage of justice. Similarly, the complaint that the applicant had no access to documents is without substance, since there is nothing to suggest that the prosecution failed to make complete disclosure of all relevant documents. Moreover, the applicant provides no particulars of the complaint that inadmissible evidence was introduced at his trial (let alone how it may have caused a substantial miscarriage of justice). And as to the contention that the judge erred in his answer to the jury’s question, we note — without descending into detail — that the judge discussed the answer to the jury’s question with counsel in the absence of the jury, and, ultimately, provided an answer upon which both counsel agreed.
Turning to sentence, we see nothing in the complaints concerning counsel’s incompetence. Nor do we see anything in the complaint of manifest excess. The applicant — who had previously been imprisoned on more than one occasion for crimes of dishonesty — offended over a period of 17 months, dishonestly obtaining $479,714.84.
Since no satisfactory explanation for the delay in attempting to initiate appellate proceedings has been advanced, and given the absence of merit in any putative appeal, it would not be in the interest of justice to grant the extension of time sought. The application for an extension of time must be refused.
In light of the foregoing, there is no occasion to consider the application for bail pending appeal.

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[2023] VSCA 333

21 December 2023