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Derwish v The Queen

Derwish v The Queen

Case [2016] VSCA 72 19 April 2016

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Appeal

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0133

NOURELDIN DERWISH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG AP, REDLICH and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 April 2016
DATE OF JUDGMENT:	19 April 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 72
JUDGMENT APPEALED FROM:	DPP v Derwish [2013] VCC 2162 (Judge Cannon)

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CRIMINAL LAW – Application for extension of time to file application for leave to appeal against conviction – Delay of approximately 18 months – Applicant not personally responsible for any part of delay – Affidavit in support sworn by solicitor in applicant’s former law firm did not explain 9 months of this delay for which she was personally responsible, and was otherwise vague and inadequate – Solicitor’s supervising partner requested to attend hearing to explain delay – Observations on the duties of lawyers in meeting statutory deadlines and in preparing affidavit in support of extension of time – Kentwell v The Queen (2014) 252 CLR 601 applied.

CRIMINAL LAW – Application for extension of time to file application for leave to appeal against conviction – Prospect of success – Cross-admissibility of coincidence evidence of 2 complainants – Whether judge properly assessed reliability of first complainant’s evidence in determining that its probative value in relation to offences against second complainant substantially outweighed its prejudicial effect on applicant – Evidence Act 2008, ss 98, 101(2) – IMM v The Queen [2016] HCA 14 considered – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Lewenberg & Lewenberg
For the Respondent	Ms F L Dalziel	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG AP
REDLICH JA

KYROU JA:

Introduction and summary

The applicant was arraigned in the County Court on an indictment containing four charges of rape and two charges of false imprisonment in relation to a complainant (‘AA’) and nine charges of rape and four charges of threat to kill in relation to a second complainant (‘BB’). AA and BB did not know each other and the offending against them had similar features but was otherwise unconnected.

Prior to the trial, the Crown gave a coincidence notice in accordance with s 98(1)(a) of the Evidence Act 2008 (‘EA’) in respect of the evidence of AA and BB. The applicant applied to sever the indictment on the basis that the evidence of each complainant was not cross-admissible against the other complainant. In two separate pre-trial rulings, the judge rejected the application.

On 24 May 2013, the applicant was found guilty by jury of all of the charges save that it returned a directed verdict of not guilty in respect of one of the threat to kill charges. On 10 December 2013, he was sentenced to a total effective sentence of 12 years and 3 months’ imprisonment with a non-parole period of 8 years.

Section 275(1) of the Criminal Procedure Act 2009 (‘CP Act’) requires that an application for leave to appeal against conviction be filed within 28 days after…

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 Derwish v The Queen

Details

AGLC: Derwish v The Queen [2016] VSCA 72
Case: [2016] VSCA 72
Decision Date: 19 April 2016

CaseChat Overview and Summary

The applicant in Derwish v The Queen sought an extension of time to file an application for leave to appeal against his conviction, arguing that he was not personally responsible for any part of the delay. The case was heard by the court, which was tasked with determining whether the applicant's delay in filing the application was justifiable and whether the application had a reasonable prospect of success. The court examined the affidavit in support, which was sworn by a solicitor from the applicant’s former law firm. The affidavit did not adequately explain a significant portion of the delay and was considered vague and inadequate. Consequently, the court called upon the supervising partner of the solicitor to attend the hearing and provide an explanation for the delay.

The legal issues before the court included whether the delay was attributable to the applicant and whether the application had a reasonable prospect of success. The court found that the affidavit in support did not sufficiently address the reasons for the delay, particularly a nine-month period for which the applicant’s former solicitor was personally responsible. This inadequacy in the affidavit was a crucial factor in the court’s decision. Furthermore, the court assessed the applicant's prospects of success in the appeal, focusing on the cross-admissibility of coincidence evidence from two complainants and the reliability of the first complainant’s evidence. The court concluded that the judge had properly evaluated the probative value of the first complainant’s evidence against its prejudicial effect on the applicant, in line with the Evidence Act 2008 and the principles set out in IMM v The Queen.

The court ultimately found that the delay was not entirely attributable to the applicant, and there was a significant portion of it for which the former solicitor was responsible. However, due to the inadequacies in the affidavit and the lack of a satisfactory explanation from the supervising partner, the court refused the application for an extension of time. The court held that the application did not have a reasonable prospect of success, as the judge’s assessment of the evidence was sound and aligned with the statutory framework and relevant case law.

Orders