Dalton v The King - [2023] VSCA 333

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…

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 Dalton v The King

Details

AGLC: Dalton v The King [2023] VSCA 333
Case: [2023] VSCA 333
Decision Date: 21 December 2023

CaseChat Overview and Summary

Dalton was convicted of obtaining a financial advantage by deception and attempted obtaining of a financial advantage by deception, both involving the Commonwealth. He appealed against his conviction and sentence, applying for an extension of time to appeal. The delay in filing the application was three years, and the explanation provided for this delay was deemed unsatisfactory. The applicant also proposed certain grounds of appeal, but these were found to be without merit.

The central legal issues in this case were whether the court should grant an extension of time for the appeal, given the significant delay in filing the application, and whether the proposed grounds of appeal had any merit. The court had to weigh the reasons for the delay against the need for finality in legal proceedings and assess the strength of the proposed grounds.

The court found that the three-year delay in filing the application was substantial and not adequately explained. The reasons provided for the delay were insufficient to warrant an extension of time. Additionally, the court examined the proposed grounds of appeal and concluded that they lacked merit. The absence of merit in the proposed grounds further supported the decision to deny the extension of time. Consequently, the application for an extension of time to appeal was refused.

The court made no orders extending the time for Dalton's appeal and dismissed the application. The conviction and sentence remained in place as originally determined.

Orders