Dennis Michael Nona v The Queen (No 2)
[2014] ACTCA 48
•20 June 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Dennis Michael Nona v The Queen (No 2) |
Citation: | [2014] ACTCA 48 |
Hearing Date(s): | 18 June 2014 |
DecisionDate: | 20 June 2014 |
Before: | Refshauge J |
Decision: | 1. Under r 6 of the Court Procedures Rules 2006 (ACT), so much of the operation of subdiv 5.4.7.2 of those Rules is dispensed with as would prevent the Court hearing and determining the application for an extension of time by Dennis Michael Nona. 2. So far as is necessary, the time within which Dennis Michael Nona may appeal against the convictions following the verdicts of the jury given on 5 July 2013 is extended to 5 March 2014. |
Category: | Principal Judgment |
Catchwords: | APPEAL – In General and Right of Appeal – Appeal against conviction – Application for extension of time to appeal against conviction – Reasonable chance of success on appeal – Respondent not misled by Notice of Appeal – No objection raised to appeal for some time – Extension of time allowed. |
Legislation Cited: | Supreme Court Act 1933 (ACT), s 37J(1)(b) Court Procedures Rules 2006 (ACT), rr 6, 5000, 5405, 5472, 5473, subdiv 5.4.7.2 |
Cases Cited: | Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Cookson v The Queen (1989) 45 A Crim R 121 |
Parties: | Dennis Michael Nona (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr S Gill (Appellant) Ms M Jones (Respondent) |
| Solicitors Porters Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | ACTCA 8 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Burns J Date of Decision: 5 July 2013; 25 February 2014 Case Title: R v Dennis Michael Nona Court File Number(s): SCC 447 of 2009; SCC 378 of 2010 |
Refshauge J:
On 5 July 2013, the applicant, Dennis Michael Nona, was found guilty by a jury of various sexual offences. The details are set out in the remarks on sentence (R v Nona (Unreported, Australian Capital Territory Supreme Court, Burns J, 25 February 2014)) and I do not need to repeat them.
On 25 February 2014, Mr Nona was sentenced to a total period of seven years and six months’ imprisonment to commence on 10 August 2012, to take into account pre-sentence custody, and a non-parole period of three years and nine months was set to commence on the same date and end on 9 May 2016.
Mr Nona appealed against that sentence on 5 March 2014. In the Notice of Appeal, he purported to appeal also against the convictions which he said were unsafe and unsatisfactory.
An issue has arisen as to the competency of that appeal. Applying the approach that I took in The Queen v Meyboom (2012) 256 FLR 450, it appears that the appeal against conviction should have been commenced by 3 August 2013. The respondent argued that this was the position.
An application under subdiv 5.4.7.2 of the Court Procedures Rules 2006 (ACT) can be made for an extension of time, including to the Registrar and, if approved, to a judge. I have described what that provision means, and the value of it, in Merrilees v The Queen [2014] ACTCA 10.
Such an application was made by Mr Nona on 30 April 2014. The Crown, however, opposed the extension of time.
It appears that the Registrar took the view that the application was unnecessary and so made no decision about it. For more abundant caution, however, the matter was referred to me as the duty judge to determine the issue.
It may be that such a referral was not strictly in accordance with the relevant provisions of the Court Procedures Rules. Although the respondent properly raised that issue, it was not strenuously argued that I should not determine the issue.
There is no doubt that the Court has power to determine the issue. See r 5405 of the Court Procedures Rules. A single judge of this Court has jurisdiction to deal with the issue. See s 37J(1)(b) of the Supreme Court Act 1933 (ACT).
To put the matter beyond doubt, I will, under r 6 of the Court Procedures Rules dispense with the operation of subdiv 5.4.7.2 of the Rules so far as it would prevent me from hearing this application.
Accordingly, it is now a matter for me to decide it.
The ground of appeal against conviction is that the verdicts were unsafe and unsatisfactory.
The Crown has filed a Notice of Intention to Respond and a Notice of Cross-Appeal. Neither suggested that the appeal against conviction was incompetent. This is in the context of rr 5472 and 5473 of the Court Procedures Rules and the impetus from them that a challenge to the competency of the appeal should be made earlier rather than later.
The issue of the competency of the appeal against conviction was raised indirectly in the hearing of an application for bail pending the appeal. See Nona v The Queen [2014] ACTCA 15. Subsequently, the application under subdiv 5.4.7.2 of the Court Procedures Rules was made and opposed by the Crown.
The requirements to be satisfied for an extension of time within which to appeal have been set out in The Queen v Meyboom at 458-62; [48]-[76]. In summary, they require an explanation for the failure to comply with the time limits, an account of any prejudice that a respondent will suffer by reason of a delay and the merits of the proposed appeal. A failure by a prospective appellant’s lawyers should not ordinarily be visited on the litigant unless there is some fault on his or her part. These principles are closely aligned with what was said in R v O’Keefe [1979] VR 1 at 5, recently applied in the Victorian Court of Appeal in Jopar v The Queen (2013) 275 FLR 454 at 464-5; [56].
So far as the explanation for delay is concerned, I read an affidavit of a solicitor for Mr Nona. The deponent was not Mr Nona’s solicitor at the time of the conviction.
The evidence was that Mr Nona had, following the verdict of the jury, given instructions to appeal against the verdicts. An advice from counsel was sought and it appears that the advice, given well within twenty-eight days after the verdicts, was to the effect that an appeal should be commenced on the ground that the verdicts were unsafe and unsatisfactory. That view was confirmed by senior counsel.
The solicitor for Mr Nona, however, took the view that such an appeal could not be commenced until Mr Nona had been sentenced. Indeed, Mr Nona was told
At this stage, we are not appealing anything in the HG Matter [the matter in which the verdicts had been returned]. However, once you are sentenced, our advice is that you should appeal to the Court of Appeal on the basis that the jury’s verdict was unsafe and unsatisfactory.
Consistent with this advice, the Notice of Appeal, filed within twenty-eight days after the sentence, included an appeal against conviction on that ground as I have noted above (at [17]).
As I have also noted above (at [13]), no objection was taken to the competency of the appeal until the question was raised with the Court.
It seems to me that, in the circumstances, this is a reasonable and satisfactory explanation for the delay in commencing the appeal.
No affidavit specifically in response to the application was filed by the Crown. There is, accordingly, no evidence of specific prejudice that may be suffered by the respondent should the time for appealing against the conviction be extended. Nor was there any controversy about the explanation for the delay.
That is not to say, of course, that there is no prejudice occasioned by the delay. That issue is more complex.
The prejudice is not, as mentioned by Ms M Jones, Crown prosecutor, for the respondent, limited to what the prosecution authorities themselves may suffer but includes the interests of the complainant herself who, if the appeal is upheld and a re-trial ordered, may be required to give evidence in that re-trial. This was recognised as relevant as long ago as in R v Brown [1963] SASR 190 at 194. This position has been ameliorated by the implementation of the Sexual Assault Reform Program (see R v Zuber (2010) 175 ACTR 1 at 2-3; [1]-[4]) where, in certain circumstances, a complainant’s evidence may be recorded and the recorded evidence played at the re-trial. That, however, did not appear to have happened in this case.
While the prejudice to the complainant is by no means relevant, I do note that this is an historical case of sexual assault where the events are said to have occurred between 1 September 1995 and 29 July 1996. That does not deny the stress on a complainant of the further uncertainty that is occasioned by an appeal, but is a relevant factor.
There is, of course, the presumptive prejudice occasioned by delay in itself, as identified by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551. That is relevant to the whole period since the date of the alleged offence, not merely the “marginal prejudice” that occurs after the time limit has expired.
I must and do take these matters into account.
The next issue is whether Mr Nona has prospects of success on the appeal.
It has been said that even where the explanation for delay is satisfactory, an extension may not be justified when the merits of the proposed appeal are poor. See Jopar v The Queen at 465; [60]. Thus, the question of the prospects of success of the appeal is important.
While the delay has not been insignificant, namely eight months, the circumstances and the Crown response, at least initially, suggests that the Crown has not been misled by the Notice of Appeal actually filed.
Often, it is said, as in Cookson v The Queen (1989) 45 A Crim R 121 at 124, that a long delay, and that includes something of or in excess of six months, requires exceptional circumstances or that the appeal will probably succeed (R v Marsh (1935) 25 Cr App R 49), but it does not seem to me that this rule should be applied directly here because of the particular circumstances.
When considering Mr Nona’s application for a stay of proceedings, Nona v The Queen [2014] ACTCA 15, I also had to consider the prospects of success of his appeal, though in the context of Mr Nona having to show special or exceptional circumstances to justify a stay.
I concluded (at [45])
I find, in the circumstances, that it is very difficult to say on the material before me that the appeal against conviction, while apparently arguable at least, has substantial prospects of success.
The two issues raised in that application to show the merits of the appeal were again agitated here. On this occasion, the Crown prosecutor, though not trial counsel, was able to take me more precisely to the relevant evidence. I summarised the issues in the earlier decision (at [37]-[38], [41]) as follows:
37.Mr Gill submitted that the prospects of success on the appeal against conviction were good because the convictions were, as would be expected in such cases, heavily reliant on the evidence of the complainant, which, it was said, was severely damaged as to two occasions by objective facts.
38.The first occasion was when one of the incidents of which she complained was said by her to have occurred on a date before her mother and Mr Nona had not met, meaning, Mr Gill submitted, that it could not have then happened.
...
41.The second occasion was when the complainant asserted the offence occurred while another complainant – that is a complainant in the earlier trial – was taken to hospital suffering an epileptic attack. Mr Gill said that, again, the offence could not have happened because other evidence showed that the complainant had actually accompanied the other complainant to hospital, making it impossible for the offence to have been committed as alleged.
I was, in argument, taken to the particular parts of the transcript and to some of the exhibits to assess the evidence.
A challenge to a conviction on the basis that the conviction is unsafe and unsatisfactory requires the court to make an assessment of the whole of the evidence to see whether the decision of the jury was open to it. See Mulcahy v The Queen [2012] ACTCA 3 at [4]. It is difficult, but not impossible, to carry out that task in an application for an extension of time and, instead, it appears appropriate to consider the significant challenges that are made by the prospective appellant.
In the circumstances, however, it is not appropriate that I analyse the evidence in detail.
I have read the parts of the transcript to which my attention has been drawn, indeed, I have scanned briefly the whole of the complainant’s evidence.
I accept that there are incidents to which she refers and which she dates according to events but with which other evidence seems to be inconsistent and which suggest they could not have happened at that time or in that way. While the complainant, not unreasonably, suggests that she cannot be certain of dates, it is a different matter when she references the allegations to events which can otherwise be dated or by circumstances (such as the presence of her mother at the hospital where her epileptic sister was taken or, indeed, at the home before then).
I am very conscious that, as the High Court has made clear in cases such as Fox v Percy (2003) 214 CLR 118; M v The Queen (1994) 181 CLR 487 at 494, an appellate court must give due recognition, especially on issues of credibility, to the advantage that the court which sees and hears a witness has.
Nevertheless, I am satisfied that, where, as here, it appears that the convictions depend so significantly on the evidence of the complainant, a very careful scrutiny is required of that evidence. See R v Murray (1987) 11 NSWLR 12. An appellate court can make some assessment of that, notwithstanding the jury’s advantages.
As a result, I am satisfied that there is a prospect that Mr Nona may satisfy an appeal court that the convictions are unsafe and unsatisfactory.
Mr Gill submitted that, given the definition of “conviction” as “a conviction recorded by the Supreme Court” in the Dictionary to the Court of Appeal rules (r 5000 of the Court Procedures Rules), no extension of time is actually required. Ms Jones submitted that, given the definition of “conviction” in the same rule as “a finding of guilt recorded by the Supreme Court”, an extension was required.
Given the conclusion to which I have come, I do not need to make a finding about this controversy.
Accordingly, insofar as it is necessary, I shall extend the time for the commencing an appeal from the conviction of Mr Nona.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 27 January 2015 |
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