Derwish v The Queen

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.