Derwish v The Queen
[2016] VSCA 72
•19 April 2016
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 sentence. The applicant filed an application for leave on 30 June 2015 together with an application for an extension of time under s 313 of the CP Act and an affidavit in support sworn by his former solicitor. The solicitor’s firm ceased acting for the applicant in August 2015. The sole proposed ground of appeal is that the judge erred in admitting the coincidence evidence.
On 16 July 2015, the Registrar of Criminal Appeals refused the application for an extension of time. On 23 July 2015, the applicant gave notice of his election to have that application determined by this Court in accordance with s 313(2) of the CP Act.
For reasons that follow, we have concluded that the application should be refused.
Circumstances of the offending
On Sunday 19 September 2010, the applicant saw AA at Flinders Street station and struck up a conversation with her. She was then 17 years old. The applicant said his name was Ali. He asked AA for sexual favours in return for drugs. She refused. He made a number of boasts, including that he had an expensive house in Geelong. He told her that he had connections to the Mafia and that he frequently went to a strip club where he was well known.
After the initial meeting, the applicant called AA on the same day and in the days that followed. They spoke by phone a number of times. In one of the conversations, the applicant asked AA to meet him but she declined. The applicant called again and told her to meet him at Glenroy station. She said she did not want to do so but then agreed because he was threatening the safety of her family.
On 22 September 2010, AA met with the applicant at Glenroy station and they went by taxi to the Formula One Hotel in Fawkner. At the hotel, the applicant told AA to remove her clothes. He said that he had people down the hallway and that he would get them in if she did something wrong. She did not want to take her clothes off but felt she had to comply otherwise the applicant would follow through with his threats. The applicant told AA that he had brought a gun with him and had left it on the cleaning lady’s trolley as they were going in. AA believed he had a gun. The applicant then got on top of AA and put his penis in her vagina (charge 1, Rape).
The applicant then told AA to shower. Upon her return, he handcuffed her to a pole next to the bed. The keys were out of reach (charge 2, False Imprisonment). The applicant fell asleep. After he woke up, he told AA that he knew where Osama Bin Laden was living. He then jumped on top of AA and had sex with her again. He removed the handcuffs as they were hurting her (charge 3, Rape).
The applicant had sex with AA 3 to 4 more times that day. He told her that he had people watching her at the train station.
On 28 September 2010, AA met the applicant again at Glenroy station. She had agreed to meet him, after he asked her 7 to 10 times, because he told her she had to do so and reminded her of the threats he had made. He said that he would find her family and kill them. They drove by taxi to the Formula One Hotel in Fawkner. The applicant put on an adult film. He told AA to lie on the bed. She did so and the applicant had sex with her (charge 4, Rape). AA’s hips hurt. She told the applicant to get off and he did so. After he had sex with AA, she saw him taking pills. Some of these pills were white pills, which he told her were ‘cocaine pills’. He told her that the other pills were ‘energy pills’. The applicant handcuffed AA to a pole next to the bed while he slept (charge 6, False Imprisonment). She managed to slip her hand out of the handcuffs but the applicant reinstated them. He made her have a shower and had sex with her again (charge 5, Rape). The applicant told AA that if she went to the police he would get her family.
On Sunday 19 June 2011, the applicant approached BB while she was at Parliament station. She was then 23 years old. He said his name was Fernando and that he owned quite a few businesses. He offered her a job in a strip club which she declined. He then offered her work in his diamond company as a secretary. BB provided him with her phone number. He called her that night and asked whether she would sleep with him for money. BB said no and that she was unable to talk to him at that time.
They subsequently arranged to meet on 24 June 2011 at the Broadmeadows Shopping Centre. At that meeting, the applicant told AA that he was a big cocaine importer and he was getting millions of dollars of cocaine brought into the country and needed to be seen with her so that she could be his alibi. He told her that if she told anyone he would rape and kill her whole family, her friends and her boyfriend and make her watch. He said he had raped and killed people and that he had his boys watching her every move and that he had been tracking her on her phone so that he would know if she called the police (charge 7, Threat to Kill). BB begged the applicant not to hurt her family and said that she would not go to the police if he did not hurt them.
The applicant and BB met again on 27 June 2011 at Galactic Circus in Crown Casino. He told her that his boys were watching her every move and that she was not to say anything to anybody. He also told her that he had a gun in his jacket and he did not leave anywhere without it. The applicant met BB and her friend (‘CC’) the next day.
The applicant and BB met again on 1 July 2011. The applicant had said it would be her first day of work with his company. He told her that CC was a police informant and that both she and CC needed to be punished. He said that BB had to go to a hotel and sleep with him so that CC would not be harmed. He also told BB that his cousin was looking to make her little sister his sex slave. BB started crying. The applicant told her to shut up because his boys were watching her and would shoot her if she didn’t act normal (charge 9, Threat to Kill). He then made her take a photo of the pair of them on his phone, instructing her to look happy. He made her take some pills, claiming one of them contained a GPS which could only be removed if he ejaculated in her.
They then went to the Formula One Hotel in Fawkner by taxi. The applicant told BB that his cousin required video footage of sexual activity in return for not making her sister his sex slave or hurting CC. BB performed oral sex on the applicant. This was filmed on the applicant’s phone (charge 10, Rape). The applicant then put his penis in BB’s vagina, pulled her hair and called her his ‘shamouta’ (charge 11, Rape). BB felt suffocated because the applicant was a big man. She had bruises and said the intercourse was painful. At some point, on 1 July 2011, BB saw the applicant take a white pill.
On the morning of 4 July 2011, BB received a text message telling her that the video was no good. She called the applicant who told her she needed to make a new video and that, until his cousin was happy with the video, she was still at risk. BB returned to the Formula One Hotel in Fawkner with the applicant. She told him that she did not want to do this anymore. The applicant told her that she had to do it otherwise his cousin would come in and take over. BB stopped crying, lay on the bed and the applicant penetrated her vagina from behind (charge 12, Rape). This episode was filmed.
The applicant told BB to shower and penetrated her vagina with his penis again (charge 13, Rape). BB again showered. The applicant told BB to blu-tack his phone to the side of the desk in the room and instructed her to look happy so that his cousin would be satisfied and not harm CC or make BB’s sister his sex slave. She pressed record on the phone, lay down on the bed and he had sex with her again (charge 14, Rape). He pulled her hair and called her ‘shamouta’ and slut.
On 8 July 2011, BB met the applicant at Broadmeadows Shopping Centre. The applicant said that he was going to kill CC or his cousin would kill her. BB told the applicant that she did not want to be part of this anymore and that he should leave her alone. The applicant told her that his cousin would sign a contract to leave her alone and not hurt her family if she had sex with him again. They attended the Formula One Hotel in Fawkner again. She repeated that she did not want to do this and he threatened her with his cousin again, saying he would come in and finish her off. They had sex on two occasions. The second occasion was filmed. BB was instructed to behave like she was enjoying it and to act happy (charges 15 and 16, Rape).
On 11 July 2011, the applicant told BB that his cousin had been doing some investigating. He told her that her sister had been entrapped by the ‘K’ group who were tracking her.
On 12 July 2011, BB met with the applicant and he told her that his cousin was listening to their conversation through a necklace he was wearing. He told her that the K group wanted to make her brother a heroin addict and hurt her family. The applicant became infuriated with BB and said ‘Fuck you and your family, I know you have been recording us’. He grabbed his necklace and spoke into it, saying ‘Michael, if they’ve been recording us kill her and her family’. BB started crying (charge 17, Threat to Kill).
That night the applicant told BB that the K group wanted him to drug her and to have sex with him. He told her that they would give him a necklace with a small camera in it so they could see what was happening.
On 13 July 2011, BB and the applicant met. He told her that the camera would not activate until 1.00 pm and that she had to take a pill in front of the camera and have sex with him, otherwise her family would be at risk from the K group. They went to the Formula One Hotel in Fawkner. The applicant hung a necklace on the bed and told BB to take a tablet. He had sex with her (charge 18, Rape). He then had her perform oral sex on him (charge 19, Rape).
At no time during any of the sexual activity between the applicant and AA or BB did he wear a condom.
Similarities in the applicant’s offending against AA and BB
As observed by the Crown in its written submissions in this application and the judge in her ruling on 29 August 2012,[1] the above circumstances disclose many similarities in the circumstances of the applicant’s offending against AA and BB. The similarities include the following:
[1]This ruling is discussed at [46]–[47] below.
(a)Both complainants were young women who were approached by the applicant at a train station while they were alone.
(b)The applicant engaged both complainants in a conversation, gave a false name and obtained their telephone number.
(c)The applicant told or implied to the complainants that he was wealthy, involved in business and had a connection to a strip club.
(d)In their first conversation, the applicant offered AA drugs in exchange for sex and offered BB a job at a strip club.
(e) The applicant referenced criminal connections and a firearm.
(f)The applicant telephoned both complainants on the same day as their initial meeting and subsequently in an effort to meet with them.
(g)The applicant threatened both complainants that either he or his violent contacts would cause harm to the complainants and/or their families unless they complied with his demands for sex.
(h) Both complainants were told they were under surveillance.
(i)All of the sexual offending against the complainants occurred at the Formula One Hotel in Fawkner and the applicant used a taxi to transport the complainants to the hotel.
(j) Both complainants acquiesced to sexual activity due to the threats of harm.
(k)Both complainants suffered superficial injuries as a result of the applicant’s size.
(l)The applicant was observed by the complainants to take pills proximate to the offending.
(m)The applicant required both complainants to shower after he sexually penetrated them.
(n) The applicant did not wear a condom.
(o) Both complainants were penetrated repeatedly on each occasion.AA’s evidence and its reliability
Sections 98 and 101 of the EA relevantly provide:
98 The coincidence rule
(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless—
…
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
Note
One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.
…
…
101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. …
In Dupas v The Queen,[2] this Court relevantly stated that, for the purposes of ss 97, 98, 101, 103, 135 and 137 of the EA, the court should consider the quality and weight of the evidence when assessing its probative value.[3]
[2](2012) 40 VR 182 (‘Dupas’).
[3]Dupas (2012) 40 VR 182, 235 [199]. Two days after the oral argument on this application, the High Court published its reasons in IMM v The Queen [2016] HCA 14 (‘IMM’) in which the majority rejected that reasoning in Dupas.
The principal contention in the applicant’s proposed ground of appeal is that the judge failed to properly consider aspects of the evidence of AA which were said to render it unreliable in deciding that its probative value substantially outweighed its prejudicial effect for the purposes of s 101(2) of the EA. It is convenient to set out those aspects of the evidence at this point.
Following the offending constituting charges 4, 5 and 6 on 28 September 2010, the applicant left the Formula One Hotel in Fawkner. Sometime later, AA attended at reception enquiring about his whereabouts. AA left the hotel and approached two police officers, Senior Constable Katherine Graham and Constable Julie Hose, who were nearby to seek directions about how to return home. The officers asked her questions and then took her to Broadmeadows Police Station, where she was again questioned by them and other officers. A LEAP incident report created on 28 September 2010 recorded these discussions.
The LEAP incident report recorded that AA was ‘[s]een … [at] 2105’. She advised officers Graham and Hose that she needed help in getting back home as she was not from the area. She appeared upset and, upon the officers questioning her, stated: that the Mafia were after her and they might kill her; that the Mafia had taken her to the Formula One Hotel in Fawkner; and that she had been raped on two occasions. She told them: that the person who raped her was named Ali; that he was Egyptian; and that he had given her an Egyptian print. She said the incident had happened about an hour ago. She said she was scared to come forward as the applicant had people watching everywhere.
The LEAP incident report stated that, at the police station, AA specified the room of the Formula One Hotel in Fawkner in which the incident took place. She said that she saw that the applicant had a gun under the bed whilst at the hotel.
The LEAP incident report then recorded that the Fawkner Sexual Offences and Child Abuse Investigation Team was contacted and two police officers in that team, Detective Senior Constable Lauren Lupi and Senior Constable Sinead Sheridan, attended the police station to speak to AA. The LEAP incident report recorded that, during this interview, AA said ‘she [was] supposed to be looking for universities earlier that day, but had received a call from [the applicant] to meet’. She did not disclose the nature of what was alleged to have been done by the applicant to her at the Formula One Hotel in Fawkner, claiming only that ‘it was all inside her’. She is recorded as being concerned that detectives had attended the hotel.
Finally, the LEAP incident report described inquiries made by the police with the manager of the Formula One Hotel in Fawkner, Diana Brendt. It recorded Ms Brendt stating that the hotel room identified by AA had been hired by the applicant who had used the hotel sporadically for the past 18 months. Ms Brendt stated that AA had been at the hotel and that she had come down the stairs inquiring about where the applicant had gone. She described AA as ‘quite calm and dressed alright’ and observed that ‘she didn’t appear to be distressed in any way’.
Officer Lupi signed a statement about the interview. She said that she was advised by officer Graham that AA stated that she had been raped twice at the Formula One Hotel in Fawkner by an Egyptian male named Ali. Officer Lupi also stated that, when she spoke to AA, AA ‘did not disclose the circumstances of the sexual assault’. A note taken by officer Lupi on 28 September 2010 indicates that AA said she had previously used marijuana.
AA’s attendance at the Broadmeadows Police Station on 28 September 2010 did not conclude until after midnight. At 12.05 am on 29 September 2010, AA signed a statement withdrawing her complaint of sexual assault at the Formula One Hotel in Fawkner by the applicant. She stated that the reason for withdrawing this complaint was ‘[b]ecause I would rather not waste officers’ time (my opinion)’.
On 21 July 2011, AA attended another police station where she made a further statement setting out the circumstances of the applicant’s offending (‘2011 Statement’). It appears from her evidence at the committal that this statement was made after she received a call from a police officer who advised her that a ‘similar case had happened’.
The 2011 Statement did not contain any allegation that the applicant threatened AA’s family prior to his first meeting with her on 22 September 2010. In that statement, AA said that, on 22 September 2010, after arriving at the Formula One Hotel in Fawkner, the applicant had told her that ‘he was connected and related to a member of the whole under belly thing’ and that he had brought a gun to the hotel. After having sex with her, he had handcuffed her to a part of a pole which formed part of the bed frame.
AA gave pre-recorded evidence on 15 April 2013. That evidence, insofar as it is relevant to this application, was as follows:
(a)Prior to meeting the applicant on 22 September 2010, the applicant threatened the safety of AA’s family. When the applicant asked AA to meet him at Glenroy station on that day, she did so because she thought he would follow through with these threats.
(b)On 22 September 2010, after arriving at the Formula One Hotel in Fawkner, the applicant told AA that he had placed a gun on a cleaner’s trolley. AA saw the cleaner’s trolley but never saw the gun. In fact, she never saw a gun on any occasion when she was with the applicant. AA denied that she had ever told the police that she had seen a gun.
(c)On 22 September 2010, in the Formula One Hotel in Fawkner, the applicant told AA: ‘If you don't take your clothes off, I'm going to do something’. This meant that he was going to call people in the hallway. When AA was asked whether she saw any people in the hallway, she said: ‘Yes, I saw a young boy, which was looking at us as we were coming up, I thought was suspicious’.
(d)On 22 September 2010 and 28 September 2010, the applicant had handcuffed her to a pole next to the bed. She was able to slip her hand out of the handcuffs on 28 September 2010.
(e)The applicant called AA on Sunday 26 September 2010 to arrange to meet her on 28 September 2010. AA had told her parents she was going to look at courses at Box Hill to ‘cover up’ what she was doing.
(f)On 28 September 2010, after the applicant had committed the offences the subject of charges 4, 5 and 6, he left AA in the hotel room and went downstairs to wait for a car. She waited upstairs in the room for about 45 minutes. She then came downstairs and spoke to a woman at reception. AA was not calm. When she first came to the reception, she hid behind a vending machine to ‘check if it was clear’ but was not ‘crouching down’. She first attempted to get the woman’s attention while hiding behind the vending machine. Once she had the woman’s attention, she walked up to the counter to talk to her.
(g)When AA first approached the police on 28 September 2010, she asked if they knew where the nearest train station was. She was taken to a police station but she did not want to make a statement. This was because she was scared that the applicant would find out. When the police asked her to tell them what happened, she gave the police ‘just a brief outline of what had happened, not every detail’.
(h)On 28 September 2010, AA showed either officer Lupi or officer Sheridan one of her wrists which had marks on it from the handcuffs that the applicant had used.
(i)AA was ‘positive’ that, on 28 September 2010, she told the police that the applicant had threatened her family. She stated that this was the reason why she did not want to make a statement at that time.
(j)AA was also ‘pretty sure’ she had disclosed the circumstances of her sexual assault to either officer Lupi or officer Sheridan.
(k) AA denied being a recreational marijuana user.
In her evidence, AA did not state that the applicant had told her that ‘he was connected and related to a member of the whole under belly thing’.
Officer Graham gave evidence that, at the time that she first spoke to AA, AA seemed ‘really nervous’, ‘really uneasy’ and ‘really upset’. She said that AA told her that she could not speak to her because ‘he’ had people watching. She had to push AA a little bit further in relation to this issue. She escorted AA to the back of her divisional van, at which stage AA became more emotional and ‘sort of began to whimper or cry’. When she asked AA whether she had been assaulted, AA began to cry and nodded. When she asked AA whether she had been raped, AA ‘nodded and … began crying more, avoiding eye contact’.
Officer Lupi gave evidence that, during her interview with AA on 28 September 2010, AA made no complaint of injury, pain, having her liberty deprived or being handcuffed. She also stated that, during the interview, AA said she had used marijuana previously but was not a user.
Ms Brendt gave evidence that, on 28 September 2010, she observed and spoke to AA prior to AA leaving the Formula One Hotel in Fawkner. She stated that AA had been standing next to, but not hiding behind, a dispenser in the reception. She agreed that AA did not look remotely dishevelled, that AA’s ‘make up was on and perfect’ and that AA had never portrayed any fear, anxiety or distress in her presence.
The judge’s rulings
In its coincidence notice, the Crown sought to adduce evidence of the circumstances of the offending against AA and BB to prove two facts in issue:
(a)first, in relation to the rape charges, that the applicant was aware that AA and BB were not consenting or might not be consenting to the acts of sexual penetration; and
(b)secondly, in relation to the threat to kill charges, that the applicant threatened to kill the family and friends of BB intending that she would fear that the threat would be carried out or being reckless as to whether BB would have such a fear.
The applicant resisted the admission of this evidence on the basis that the Crown had not demonstrated that the evidence had significant probative value or, alternatively, that the probative value of the evidence substantially outweighed its prejudicial effect. Accordingly, the applicant contended that the coincidence evidence was not cross-admissible and that there should be separate trials.
On 29 August 2012, the judge ruled that the evidence of AA and BB was cross-admissible as coincidence evidence. Accordingly, the judge rejected the applicant’s application to sever the indictment (‘First Ruling’).[4]
[4]Transcript of Proceedings, DPP v Derwish (County Court of Victoria, Judge Cannon, 29 August 2012).
In reaching this conclusion, the judge found that there were a number of qualitative and unusual, if not bizarre, similarities in the events and circumstances described by AA and BB which were relevant to the central facts in issue.[5] The judge accepted that there were certain dissimilarities in the threats made to AA and BB. However, she held that the essence of these representations was the same or similar: namely, that either the applicant or his violent contacts would kill or cause serious harm to AA and BB and/or their family or friends if they did not comply with his demands for sex.[6] She also emphasised some of the similarities set out at [26] above.[7]
[5]First Ruling 195, 205.
[6]First Ruling 204.
[7]First Ruling 195, 204–5.
After the First Ruling, this Court published its reasons in Dupas.[8] In the light of those reasons, the judge permitted further argument in relation to the First Ruling. At that time, the applicant eschewed his previous submission that the coincidence evidence of AA and BB lacked significant probative value. Instead, he submitted that the evidence should be excluded because its probative value did not substantially outweigh its prejudicial effect.
[8]The reasoning of the Court, insofar as it is relevant to this application, is set out at [28] above.
The applicant submitted that AA’s evidence lacked sufficient reliability to justify its use in the trial of BB. In particular, he drew the judge’s attention to the following:
(a)AA did not give evidence that the applicant had told her ‘he was connected and related to a member of the whole under belly thing’. This was inconsistent with what AA said in her 2011 Statement.
(b)AA gave evidence that she never saw a gun when she was with the applicant and that she never told the police that she had. This was inconsistent with the LEAP incident report which recorded that AA had said that she had seen a gun under the bed at the Formula One Hotel in Fawkner.
(c)Contrary to AA’s evidence, the LEAP incident report contained no record of AA telling the police that she was handcuffed by the applicant or that he threatened her family.
(d)The LEAP incident report recorded that AA told police that she was supposed to be out looking for universities on 28 September 2010 but received a call from the applicant to meet up. This was inconsistent with AA’s evidence that the meeting had been arranged the previous Sunday and the search for universities was an excuse she gave her parents.
(e)AA gave evidence that she had shown one of her wrists to the police on 28 September 2010. There is no record of her complaining about any injury or pain to her wrist to any police officer on that day.
(f)AA made assertions in her evidence which had not previously been made. These included that: she had once slipped out of the handcuffs; she had once seen a boy in the hallway at the Formula One Hotel in Fawkner; on 28 September 2010, she hid behind a vending machine when she went to the reception area of the hotel.
(g)AA also gave evidence that the applicant made threats to her family before meeting him on 22 September 2010. No such assertion was contained in her 2011 Statement.
(h)Officer Lupi’s statement contradicted AA’s evidence that she had disclosed the circumstances of her sexual assault to her or officer Sheridan.
(i)AA’s evidence that she had never smoked marijuana was contradicted by a note taken by officer Lupi on the evening of 28 September 2010.
On 17 April 2013, the judge published a further ruling in which she reaffirmed her First Ruling (‘Second Ruling’).[9] Her conclusion was as follows:
Having revisited my ruling where I admitted the evidence sought to be adduced as coincidence evidence, and having factored in matters going to reliability — in particular, issues of reliability of the evidence of [AA] and having considered the quality and weight of the evidence in this context, I am of the view that the significant probative value of the evidence substantially outweighs the prejudicial effect it may have on the accused. A good deal of the prejudicial value derives from the probative value of the evidence itself but insofar as it does not, appropriate directions will be given to ensure that the jury does not engage in impermissible reasoning.[10]
[9]DPP v Derwish [2013] VCC 2162.
[10]Second Ruling [20].
In support of her conclusion, the judge repeated her finding in the First Ruling that the case involved two complainants who did not know each other who had made allegations against the applicant of a rather bizarre nature.[11]
[11]Second Ruling [19].
The judge stated that AA presented as a fairly unsophisticated individual who, despite some apparent inconsistencies in her evidence, gave a largely consistent and ‘overall reliable account’ of what she said occurred.[12]
[12]Second Ruling [13].
The judge stated that the only aspect of AA’s evidence which gave her some cause for concern was AA’s disavowal of ever seeing a gun and of ever telling the police she had seen a gun. The judge observed that this evidence appeared to be in conflict with the LEAP incident report and one of the police officer’s notes.[13] She held that, while this inconsistency was a potential concern in respect of that aspect of AA’s evidence, it was not of such a nature in the circumstances of this case which would cause her to exclude AA’s evidence as coincidence evidence.[14]
[13]Second Ruling [14].
[14]Second Ruling [15].
In relation to the other inconsistencies in AA’s evidence raised by the applicant, the judge stated that the Crown took her through them and that she agreed with the Crown’s submission that they did not impact on the reliability of AA’s evidence in such a way as to warrant the evidence being excluded under s 101(2) of the EA on the charges relating to BB.[15]
[15]Second Ruling [10], [16].
Principles relating to extensions of time
In Kumar v The Queen[16] — which was decided prior to the High Court’s decision in Kentwell v The Queen[17] — this Court summarised the principles governing an application for extension of time to apply for leave to appeal against conviction as follows:
[16][2014] VSCA 102 (‘Kumar’).
[17](2014) 252 CLR 601 (‘Kentwell’).
(1)the prescription by the statute of the time limit for giving notice is intended to secure finality and compliance is intended to be required in the ordinary case;
(2)extension of the time is a matter for the discretion of the Court, and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension;
(3)rigid restrictions cannot be imposed on the exercise of discretion but in general the Court will require special and substantial reasons for extending the time;
(4) the longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be;
(5) it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;
(6) a reasonably satisfactory account of the failure to comply with the statutory requirement needs to be forthcoming.[18]
[18]Kumar [2014] VSCA 102 [8] (citations omitted).
These principles must now be read in the light of Kentwell. That case concerned an application for an extension of time to apply for leave to appeal against sentence under the applicable New South Wales legislative provisions. Although those provisions are not identical to s 313 of the CP Act, they similarly confer a wide discretion on the Court of Criminal Appeal.
In Kentwell, French CJ, Hayne, Bell and Keane JJ (with whom Gageler J agreed) expounded a number of principles governing the exercise of the discretion to grant an extension of time under the New South Wales legislative provisions. Some of those principles concerned applications for leave to appeal against sentence and are therefore not presently relevant. Set out below are those principles which are relevant to applications for leave to appeal against conviction:
(a)The wide discretion conferred on the Court of Criminal Appeal to extend time is to be exercised by consideration of what the interests of justice require in the particular case.[19]
(b)The interests of justice will often pull in different directions. They may include consideration of the adverse effect on the victim, or on the community generally, occasioned by reopening a concluded criminal proceeding.[20]
(c)The length of the delay in applying for leave and the reasons for it are relevant factors.[21]
(d)The review of an old conviction may raise consideration of the capacity to hold a new trial that is fair to both sides. For example, witnesses may no longer be available and exhibits may have been lost or destroyed. Reopening a conviction for an offence of violence may occasion acute stress to the victim, including by the prospect of being required to give evidence.[22]
(e)Relevant to the determination of the interests of justice on an application to extend time is the prospect of success should the extension be granted.[23]
[19]Kentwell (2014) 252 CLR 601, 613 [30].
[20]Kentwell (2014) 252 CLR 601, 614 [32].
[21]Kentwell (2014) 252 CLR 601, 614 [31].
[22]Kentwell (2014) 252 CLR 601, 613 [29].
[23]Kentwell (2014) 252 CLR 601, 614 [33].
Length and reasons for delay in the present case
As set out at [4] above, the applicant filed an application for leave to appeal against conviction on 30 June 2015, approximately 18 months out of time.
In the affidavit in support of the applicant’s application for an extension of time, which was prepared on 24 June 2015 and affirmed on 29 June 2015, the applicant’s former solicitor deposed the following:
(a)Consideration had been given to pursuing an appeal against conviction and sentence at the time that the applicant was sentenced, namely 10 December 2013. The applicant gave instructions for the drafting of a written case.
(b)On 21 January 2014, trial counsel recommended an appeal against conviction and advised that he required the trial transcript and ‘a copy of a ruling’ made by the judge during the trial. On the same day, the solicitor ascertained that the judge and her associate were on leave.
(c)On 6 February 2014, the solicitor spoke to the judge’s associate ‘who advised she did not have a transcript of [the judge’s] charge but that it could be requested from the Victorian Government Reporting Service’.
(d)On 7 February 2014, the solicitor emailed the Victorian Government Reporting Service requesting a ‘copy of the audio recording’ of the judge’s charge. The affidavit does not disclose whether this recording was provided to her.
(e)On 7 February 2014, the judge’s associate emailed to the solicitor the First Ruling ‘which was a different ruling to the one [she] had requested’.
(f)On 28 February 2014, trial counsel advised that he did not yet have the trial transcript or ruling. On 11 March 2014, the solicitor emailed the judge’s associate requesting ‘the correct ruling’.
(g)On 17 June 2014, the solicitor received the requested ruling from the judge’s associate. The affidavit does not set out when she received the trial transcript. However, on 17 June 2014, she forwarded to trial counsel the requested ruling and advised him that transcript of AA and BB’s evidence had been sent to him.
(h)The solicitor communicated with trial counsel on numerous occasions about the written case. On 22 August 2014, trial counsel stated that he was involved in a case out of Melbourne and that he would be attending to the written case on the following Monday. Trial counsel ultimately provided the written case on 29 September 2014.
(i)On 5 August 2014, a telephone conference with the applicant took place. On 16 September 2014, the applicant enquired about the progress of ‘his matter’. Between the receipt of the written case and June 2015, the applicant called the solicitor’s firm approximately once every three to four weeks to enquire as to the progress of the filing of his appeal.
The final two paragraphs of the affidavit were as follows:
Having received the written case, preparation of the affidavit was not addressed and remained incomplete for some time.
I am mindful of the relevant judgment in Damien John Smith v The Queen [2013] VSCA 310 and I am of the belief that there remains a likelihood of success upon appeal in this matter.
During the oral argument on this application, counsel for the applicant (who was not the trial counsel) conceded that the affidavit did not provide an acceptable explanation for the delay in the filing of the application documents and said that he did not have any instructions about the reasons for the delay. The Court informed counsel that the affidavit was not only wholly inadequate, but it was also offensive to the Court because it baldly asserted that the affidavit ‘remained incomplete for some time’ — nine months to be exact — without giving any reasons for this extraordinary neglect. Through the applicant’s current instructing solicitor, the Court invited the supervising partner at the applicant’s previous law firm to attend the hearing to provide an explanation to the Court.
That supervising partner attended the hearing and informed the Court that, while he was aware of the initial delay by trial counsel in preparing the written case, he did not become aware of the delay in the finalisation of the affidavit until May or June 2015. He said that, when he looked into the matter, he formed the view that the solicitor who acted for the applicant was ‘crippled by anxiety’ in relation to the applicant’s case and, as a result, he arranged for another solicitor to assist in the finalisation of the affidavit and the filing of the application documents. He did not read the affidavit before it was filed. He apologised to the Court for the delay that was caused by his firm and for the inadequacy of the affidavit.
Counsel for the applicant submitted that the applicant did not personally contribute to any part of the delay and emphasised that the applicant had given timely instructions for the drafting of a written case and enquired about the progress of the filing of his appeal from time to time. We accept this submission. It is clear that the applicant relied on his lawyers — as he was entitled to do — to protect his interests. But they let him down badly and in the process failed to provide to the Court the assistance to which it was entitled.
We do not accept that the difficulties in obtaining documentation from the County Court justified any delay in the preparation of an application for leave to appeal and the applicant’s written case. This is because trial counsel was briefed promptly and he had sufficient personal knowledge of the trial and the judge’s rulings to enable him to prepare those documents, particularly since they relied on a single proposed ground of appeal. Even if it is accepted that the difficulties in obtaining documentation from the County Court sufficiently explained the initial period of trial counsel’s delay, no satisfactory explanation has been provided for his delay of three months following receipt of that documentation.
The delay of nine months in the preparation of the affidavit by the applicant’s former solicitor is egregious. Accepting, for present purposes, that the solicitor experienced personal difficulties in managing the conduct of the applicant’s case, it defies belief that she did not seek assistance from the supervising partner and that that partner did not take steps prior to May 2015 to ascertain what was going on and to provide assistance to the solicitor. It is clear that the relevant firm did not have proper systems in place to ensure that it, through its employee solicitor, properly discharged its duties to the applicant.
It is essential that law firms have proper supervisory systems in place. It must be remembered that it is the firm that is on the record as the instructing solicitor and not the employee solicitor who has the primary carriage of a proceeding. Where the employee fails to discharge his or her duty to a client or to the Court, the partners of the firm may also be in breach of their duties and may be held responsible.
The affidavit is unsatisfactory, wholly inadequate and even improper given its brevity, glibness, and glaring omissions. These include the lack of any acknowledgement that there was a serious dereliction of professional responsibility. It is very vague about the sequence of events, the communications that took place, the documents to which reference is being made and why it was necessary for trial counsel to have those documents in order to formulate the proposed ground of appeal or the written case within the time required under the CP Act and the Supreme Court (Criminal Procedure) Rules 2008. The solicitor did not acknowledge that her conduct was unacceptable or take responsibility for the egregious delay after she received the necessary documents from trial counsel. This is not the type of affidavit which a solicitor should file with the Court when seeking to persuade it to exercise a discretion in favour of his or her client.
It is extraordinary that, having formed the view that the employee solicitor had been unable to discharge her responsibilities and having arranged for another solicitor to assist her in the finalisation of the affidavit, the supervising partner did not read the affidavit to satisfy himself that it included all the relevant available information to assist the Court to understand the reasons for the delay. This is another serious example of the breakdown of the supervisory systems within the firm in relation to the applicant’s case. Once again, responsibility for the inadequacies in the affidavit does not lie solely with the employee solicitor; the firm must bear greater responsibility because it is the solicitor on the record and its partners were more experienced than the solicitor and had a duty to supervise her.
Far too often, this Court has had to contend with affidavits in support sworn by lawyers which provide merely a sketchy outline of events between the time an offender is sentenced and the time that an application for an extension of time is filed, without full and frank disclosure of all of the available information that is relevant to the Court’s assessment of the reasons for the delay and their adequacy. It appears that there is a misconception within the legal profession that, provided that the offender is not personally responsible for the delay and he or she has an arguable case on the merits, the Court will overlook the delay and any inadequacy in its explanation. As confirmed by the High Court in Kentwell, the length of the delay and the reasons for it are relevant factors in the exercise of the Court’s discretion to grant or refuse an extension of time.
The time limits for filing an application for leave to appeal against conviction or sentence must be taken seriously by the legal profession. They must be diarised and closely monitored. Failure to comply with them may have serious consequences for an applicant and may also have implications for his or her lawyers. In an appropriate case, even if an extension of time is granted despite unacceptable delay by a lawyer, this Court will not hesitate to refer the lawyer’s conduct to the Legal Services Board for investigation of whether disciplinary action is warranted. In these circumstances, a lawyer who swears an affidavit in support of an application for an extension of time must fully and frankly disclose all relevant events and, where relevant, take responsibility for personal acts or omissions which contributed to the delay.
In the present case, following the attendance of the supervising partner during the oral argument, he sent a letter to the Registrar of the Court of Appeal advising that he and his partners held a meeting on the same day at which they adopted more rigorous supervisory systems, details of which were set out in the letter. The firm is to be commended for acknowledging its failings and for its prompt remedial action.
Prospect of success
As stated at [28] above, in Dupas, this Court relevantly stated that, for the purposes of ss 97, 98, 101, 103, 135 and 137 of the EA, the court should consider the quality and weight of the evidence when assessing its probative value.[24] As the Court in that case was dealing with s 137, its reference to ss 98 and 101 was obiter. However, the Court’s observations have been cited with approval in Murdoch v The Queen[25] in the context of ss 97, 98 and 101 and in Velkoski v The Queen[26] in the context of s 97.
[24]Dupas (2012) 40 VR 182, 235 [199].
[25](2013) 40 VR 451, 472 [84]–[85].
[26](2014) 242 A Crim R 222, 269 [179].
It will be recalled that when the judge’s First Ruling on the cross-admissibility of the evidence of AA and BB was revisited in the light of Dupas, the applicant no longer contended that AA’s evidence did not have ‘significant probative value’ for the purposes of s 98 of the EA. Notwithstanding this unchallenged finding by the judge, the applicant submitted that the judge was required to assess the reliability of AA’s evidence for the purposes of undertaking the balancing exercise required by s 101(2).
There are a number of assumptions inherent in the applicant’s argument about which we should make comment. First, in the setting where the evidence of two or more complainants is said to be cross-admissible as coincidence evidence, the evaluation under s 98 of the EA will usually depend upon the content of the statements the complainants have made, and whether the similarities in their content are inexplicable as coincidence. A comparison of the content of their statements would not ordinarily require any consideration of the complainants’ reliability or credibility as witnesses.
Secondly, two days after the oral argument on this application, the High Court published its reasons in IMM v The Queen[27] in which the majority rejected the reasoning in Dupas that a judge must take into account reliability when considering the probative value of evidence for the purpose of s 98.[28] The majority reasoning in IMM, though primarily concerned with ss 97 and 137, would also appear to apply to s 101(2) so that reliability is not to be taken into account when considering probative value under that balancing exercise.
[27][2016] HCA 14.
[28]IMM [2016] HCA 14 [54].
Thirdly, the only prejudice identified by the applicant was that the coincidence evidence, if accepted, showed that he had committed acts and made threats of a broadly similar nature or for the same purpose, namely to coerce another victim into being sexually compliant, and was therefore of bad character. We entertain reservations as to whether the very purpose of the coincidence evidence falling within s 98 of the EA can provide the basis for a finding of prejudice under s 101(2). If the prejudice lies in its probative value, it is not an impermissible prejudice.
One can readily understand how the prejudicial effect of coincidence evidence which is extrinsic to the circumstances of the offence charged can outweigh its probative value. For example, where the victim of a sexual assault gives evidence that the accused used a knife with a distinctive handle, evidence by a bank teller that the accused threatened him or her with a knife with the same distinctive handle may satisfy the test of significant probative value in s 98, but that probative value is likely to be outweighed by the prejudicial effect of the disclosure to the jury that the accused may have committed an armed robbery. Another example may be where the coincidence evidence discloses the bad character of the accused in a context which is separate from the offending conduct for which he or she is charged.
The above examples can be contrasted with a situation where the witnesses are complainants who give evidence that the accused committed the same type of offence against them and that the offending had numerous distinctive features such that the court is satisfied, first, that it is improbable that the events described occurred coincidentally and, secondly, that the evidence of the complainants had significant probative value. In this situation, the prejudicial effect of the coincidence evidence is intrinsic to the offending conduct for which the accused is charged. Given that the significant probative value of the evidence is derived from the features which create the improbability that the events occurred coincidentally, we have doubts as to whether those same features can give rise to a prejudicial effect so that the probative value does not substantially outweigh that prejudicial effect.
Of course, if coincidence evidence is prejudicial so that the jury might engage in impermissible propensity reasoning, a fair trial is capable of being assured by an appropriately worded propensity warning.[29]
[29]See Pfennig v The Queen (1995) 182 CLR 461, 528 (‘Pfennig’); Papakosmas v The Queen (1999) 196 CLR 297, 325–6 [91]–[94].
It is not necessary for us to reach any concluded view on the above issues, as we are satisfied the judge did not err in the application of s 101(2) of the EA. As appears from [50] above, the judge concluded that ‘[a] good deal’ of the prejudicial effect of AA’s evidence arose from its significant probative value as coincidence evidence and that, insofar as any prejudice arose independently, it could be dealt with by appropriate directions to the jury. The applicant has not complained about the judge’s charge or the propensity warning that she gave to the jury.
We will now consider the submissions made by the applicant in support of his proposed ground of appeal that the judge erred in admitting AA’s evidence as coincidence evidence on the charges relating to BB.
The applicant submitted that the judge erred in ruling that AA’s evidence was sufficiently reliable to warrant its admission on the charges relating to BB. In support of this contention, the applicant largely repeated his submissions made before the judge which are set out at [49] above. The applicant’s written case did not repeat the submissions set out at [49(d)] and [49(g)] above regarding AA’s search for universities and the absence of a threat to AA’s family in the 2011 Statement, respectively.
The applicant further submitted that the judge’s analysis erroneously presumed a burden on him to establish that AA’s evidence was not cross-admissible. He also contended that it was unclear from the Second Ruling: whether the judge conducted the weighing process required by s 101(2) of the EA; or what standard of satisfaction the judge reached in deciding to admit AA’s evidence on the charges relating to BB.
In our opinion, there is no realistic prospect of the applicant establishing any component of the proposed ground of appeal.
The contention that the judge failed to properly assess the reliability of AA’s evidence is without substance. The Second Ruling, when read in the context of the First Ruling, makes it clear that the judge considered the inconsistencies between AA’s evidence and her prior statements and also the proposed evidence of other witnesses, upon which the applicant relied. The judge accepted the Crown’s submissions about those inconsistencies and concluded that they did not affect the overall reliability of AA’s evidence. The judge was entitled to reach this conclusion for the following reasons.
First, insofar as there were inconsistencies between AA’s evidence and the evidence of police witnesses about what AA said or did on 28 September 2010, the inconsistencies are explicable by the fact that AA was distressed and did not wish to make a complaint against the applicant or to give a detailed account of what had occurred. AA’s distressed state was not conducive to her accurately remembering all of the details of what she said or did while she was with the police. Also, some of AA’s statements to the police were made after she was pressed to disclose further information notwithstanding her express reluctance to do so. In these circumstances, it is not surprising that:
(a)in her evidence, AA provided details of statements or conduct that she did not mention previously such as:
(i) that AA once slipped out of the handcuffs and once saw a boy in the hallway of the Formula One Hotel in Fawkner; and
(ii) that she hid behind the vending machine at the hotel’s reception on 28 September 2010.
(b)AA gave evidence that she said things to the police in respect of which the police have no record, such as:
(iii) that AA told the police that she was handcuffed and showed them her wrist; and
(iv) that the applicant had threatened her family.
(c)AA disavowed stating to the police that she saw a gun as distinct from being told by the applicant that he had a gun.
Secondly, some of the alleged inconsistencies upon which the applicant relied are not true inconsistencies, but rather additional detail that AA recalled for the first time during the special hearing or did not previously consider required disclosure. Her evidence that she slipped her hand out of the handcuffs, that she saw a boy in the hallway and that she hid behind a vending machine falls into this category.
Thirdly, AA’s evidence that she hid behind the vending machine at the reception of the Formula One Hotel in Fawkner is not irreconcilable with Ms Brendt’s evidence that AA was standing next to the machine. AA gave evidence that she was behind the machine and then stepped forward as she obtained Ms Brendt’s attention. AA did not assert that she was crouching behind the machine or that she was completely out of view. AA may have felt hidden by the machine but, from Ms Brendt’s viewpoint, AA was merely next to the machine. Further, Ms Brendt gave evidence that, while the vending machine was visible from the reception desk, a person standing on the side of the dispenser would not be visible from outside the hotel. Given that AA did not wish to be seen by the applicant of whose whereabouts she was not aware, it is likely that her evidence was meant to convey that she stood on the side of the vending machine so as to hide from the applicant rather than Ms Brendt.
Fourthly, the fact that officer Lupi’s statement differs from AA’s evidence about the identity of the police officer to whom she disclosed the circumstances of her sexual assault on 28 September 2010 is hardly material. AA’s evidence was that she made the disclosure to officer Lupi or officer Sheridan whereas officer Lupi’s statement records that AA did not disclose the sexual assault to her. However, AA told officer Graham that she had been sexually assaulted and this information was provided to officers Lupi and Sheridan by officer Graham.
Fifthly, in relation to AA’s evidence that she told the police that the applicant had handcuffed her, that evidence is supported by the fact that the police found handcuffs at the applicant’s home when they searched it.
Sixthly, in relation to AA’s disavowal of having seen a gun, this did not affect the significance of her evidence and that of BB because its probative value lay in the fact that both AA and BB said that the applicant mentioned being in possession of a gun as part of his threatening behaviour. AA mentioned seeing the gun, as distinct from being told about it, only on 28 September 2010 when she was in a distressed state.
Seventhly, there is no substance to the applicant’s submission concerning AA’s failure to give evidence that the applicant told her he was a part of ‘the whole under belly thing’. It is not uncommon for witnesses to omit details when giving evidence of stressful events some years later. In any event, the gravamen of AA’s evidence was that the applicant mentioned his alleged connections with organised crime to make her fear him and do his bidding. Also, as the judge concluded that AA was unsophisticated, it is not clear what she understood ‘under belly’ to mean.
Eighthly, the inconsistency between the evidence of officer Lupi that AA told her on 28 September 2010 that she had previously used marijuana and AA’s evidence denying that she ever used marijuana is irrelevant to any of the facts in issue at trial and could not have a material impact on the reliability of AA’s evidence on those facts.
Viewed in the context set out above, the combined effect of the inconsistencies upon which the applicant relied was not such as to seriously undermine the reliability of AA’s evidence on the issues at trial. Accordingly, the inconsistencies do not demonstrate any error in the judge’s Second Ruling.
The applicant’s contention that the judge failed to conduct the balancing exercise between the probative value of the coincidence evidence and its prejudicial effect that is required by s 101(2) of the EA is without merit. The Second Ruling clearly indicates that the judge complied with that section. The judge made an assessment of the reliability of AA’s evidence before considering whether its probative value substantially outweighed its prejudicial effect on the applicant. She could not have reached the conclusion set out at [50] above if she had not undertaken the balancing exercise.
Similarly, there is no substance to the applicant’s contention that the judge failed to indicate what standard she used in reaching the conclusion required by s 101(2) of the EA. That section does not require the court to apply any particular standard of satisfaction. The balancing of the two incommensurables[30] set out in the section do not lend themselves to the reaching of any particular standard of satisfaction in the same way that disputed facts lend themselves to findings in accordance with particular standards. All that the section requires is that the court assess the probative value of the evidence and the prejudicial effect it may have on the accused and determine whether the probative value substantially outweighs its prejudicial effect. That is precisely what the judge did in the present case.
[30]Pfennig (1995) 182 CLR 461, 528. See also Dupas (2012) 40 VR 182, 228 [178].
Contrary to the applicant’s submission, there is no indication in the Second Ruling that the judge impermissibly reversed the onus of proof in relation to the admissibility of the coincidence evidence. Following the giving of the coincidence notice, the judge heard extensive submissions on two occasions as to whether the evidence covered by that notice was admissible in accordance with ss 98 and 101(2) of the EA. The onus was on the Crown to persuade the judge that the evidence was admissible under those provisions. In finding that the evidence was admissible, the judge obviously concluded that the Crown had discharged that onus.
Conclusion
In Kentwell, the High Court referred to other potentially relevant considerations, such as the adverse effect on victims or the community occasioned by reopening a concluded criminal proceeding and whether a new trial that is fair to both sides is possible. The parties did not make any submissions on those considerations. In particular, the Crown has not suggested that the granting of an extension of time would result in any relevant prejudice.
Having regard to the absence of any realistic prospect of an appeal against conviction succeeding, we have concluded that the interests of justice in the present case overwhelmingly require that the application for an extension of time be refused.
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