David Llewelyn Hicks v The Queen - [2018] VSCA 9

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0235

DAVID LLEWELYN HICKS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, BEACH and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	2 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 9
JUDGMENT APPEALED FROM:	DPP v Hicks (Unreported, County Court of Victoria, Judge Lewitan, 24 November 2015 (Conviction))

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CRIMINAL LAW — Appeal — Conviction —Application for extension of time to appeal against conviction — Applicant convicted at trial of five charges of obtaining a financial advantage by deception — Applicant previously succeeded in appeal against sentence —Whether applicant unfit to be tried — Whether the merits of the proposed appeal warrant extension — Explanation for delay unsatisfactory — Proposed grounds of appeal lacking merit — Application for extension of time refused — Criminal Procedure Act 2009, s 313 — Madafferi v The Queen [2017] VSCA 302.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearances	No appearances
For the Respondent	No appearances	No appearances

PRIEST JA
BEACH JA
NIALL JA:

An application for extension of time

On 24 November 2015, a jury in the County Court found the applicant guilty of five charges of obtaining a financial advantage by deception.[1]
[1]Crimes Act 1958, s 82.

Following a plea, on 11 December 2015 the trial judge sentenced the applicant to a total effective sentence of six years’ imprisonment, with a non-parole period of four years.

When represented by counsel and solicitors very experienced in the criminal law, the applicant successfully appealed against that sentence; so that, on 13 July 2016, this Court re-sentenced the applicant to a total effective sentence of four years and six months’ imprisonment, with a non-parole period of two years and six months.[2]
[2]Hicks v The Queen [2016] VSCA 162 (Weinberg and Priest JJA).

More than a year after his success in this Court with respect to sentence, the applicant filed an application for an extension of time within which to file a notice of application for leave to appeal against conviction,[3] dated 5 October 2017. That application, apparently prepared by the applicant without the assistance of a legal practitioner, contains three grounds:
[3]See Criminal Procedure Act 2009, s 313.

GROUND 1.
The applicant was medically unfit to manage and instruct an appeal against conviction [sic] until August 2016.
Full recovery from five-vessel open-heart by-pass surgery was not confirmed until August 2016 by Bendigo Hospital.
GROUND 2.
The applicant was blocked from lodging an appeal against conviction by his solicitor Steven Pica until July 2017.
Despite continuous communication from the applicant from August 2016 until June 2017, and payment of significant legal fees, Pica advised the applicant that he was now too late to appeal.
GROUND 3.
The applicant has prepared his own appeal against conviction since July 2017, all delays being directly attributable to a lack of resources at Loddon prison and the inadequate mail system provided by Corrections Victoria.

In support of the…

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.

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Details

Case: [2018] VSCA 9
Decision Date: 2 February 2018

CaseChat Overview and Summary

The applicant, David Llewelyn Hicks, appealed against the refusal of an application to extend the time for him to lodge an appeal against his conviction for five charges of obtaining a financial advantage by deception. The appeal was heard in the Victorian Court of Appeal. Hicks had been convicted at trial and had previously succeeded in an appeal against his sentence. He sought an extension of time to appeal against his conviction, arguing that he was unfit to be tried and that the proposed grounds of appeal had merit.

The court was required to determine whether Hicks was unfit to be tried at the time of his trial and whether the merits of the proposed appeal warranted an extension of time. The court also considered whether Hicks had provided a satisfactory explanation for the delay in lodging the application and whether the proposed grounds of appeal had merit.

The court found that Hicks's explanation for the delay in lodging the application was unsatisfactory, as it did not provide a reasonable excuse for the delay. The court also found that the proposed grounds of appeal lacked merit, as they were not arguable and did not have a reasonable prospect of success. The court held that the applicant was not unfit to be tried at the time of his trial, as he had been able to conduct his defence and participate in the trial. Therefore, the application for an extension of time was refused.

The court made no orders regarding the extension of time for Hicks to appeal against his conviction. The conviction and sentence remain unchanged.

Orders