Director of Public Prosecutions (ACT) v Tuifua
[2022] ACTCA 1
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Director of Public Prosecutions (ACT) v Tuifua |
Citation: | [2022] ACTCA 1 |
Hearing Date: | 2 February 2022 |
DecisionDate: | 2 February 2022 |
Before: | Mossop J |
Decision: | See [11] |
Catchwords: | APPEAL – APPLICATION FOR LEAVE TO APPEAL OUT OF TIME – Crown appeal against sentence – manifest inadequacy – respondent put on notice of Crown intention to appeal at time of sentence – limited extension of time sought – solicitor’s error constitutes “special reasons” for the purposes of r 5405 Court Procedures Rules 2006 (ACT) – application not opposed by respondent – appropriate to grant extension of time |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) Court Procedures Rules 2006 (ACT), r 5405 |
Cases Cited: | Dewson v MacDonald [2014] ACTCA 39 Henry v The Queen [2019] ACTCA 5 R v Tuifua [2021] ACTSC 298 |
Parties: | ACT Director of Public Prosecutions ( Applicant) Frederick Tuifua ( Respondent) |
Representation: | Counsel A Williamson ( Applicant) J Fahmy ( Respondent) |
| Solicitors ACT Director of Public Prosecutions ( Applicant) Fahmy Lawyers ( Respondent) | |
File Number: | ACTCA 62 of 2021 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 19 November 2021 Case Title: R v Tuifua Citation: [2021] ACTSC 298 |
MOSSOP J:
Introduction
By application dated 20 December 2021, the Director of Public Prosecutions seeks leave to appeal out of time from a sentence imposed on 19 November 2021. For reasons which are not quite clear, while the document was lodged for filing on the 20 December 2021, it is only stamped as having been filed on 22 December 2021.
The sentence imposed by the primary judge on 19 November 2021 involved an aggregate sentence of imprisonment of 20 years and a non-parole period of 10 years: see R v Tuifua [2021] ACTSC 298 at [70]. The aggregate sentence comprised a sentence of 12 months for assault occasioning actual bodily harm, a sentence of 18 years for murder and a sentence of two years and five months for intentionally inflicting grievous bodily harm. The starting point on the count of murder was a period of 22 and a half years. The actual period required to be served prior to release was not the non‑parole period of 10 years but instead a period of 11 years because one of the sentences was excluded from the non-parole period provisions of the Crimes (Sentencing) Act 2005 (ACT).
The Draft Notice of Appeal challenges the sentences on the grounds that the individual sentences, the aggregate sentence and the non-parole period are all manifestly inadequate. As explained by counsel for the Director, the focus of the appeal will be on the non-parole period, particularly having regard to what was said by the Court of Appeal in Henry v The Queen [2019] ACTCA 5 at [37].
The affidavit of Katie Louise McCann dated 22 December 2021 discloses, to some extent, the reasons why the extension of time is necessary. On the day the sentence was imposed, Ms McCann was notified by the Deputy Director of Public Prosecutions, Anthony Williamson, that the Crown intended to appeal against sentence on the basis of manifest inadequacy. Mr Williamson told her that he had spoken to counsel for the respondent and notified him of the Crown’s intention to appeal. Ms McCann then directed an unidentified “junior colleague” to prepare a Draft Notice of Appeal and to liaise with Mr Williamson to settle the document for filing.
Rule 5405(1)(b) of the Court Procedures Rules 2006 (ACT) provides that the time for appealing against a sentence is 28 days after the day the order appealed from was made. This meant that the last day for filing the Notice of Appeal was 17 December 2021. As of that date, Ms McCann’s junior colleague was on leave.
On 20 December 2021, Mr Williamson asked whether a Notice of Appeal had been filed and Ms McCann discovered that it had not been filed. She then prepared the application seeking leave to appeal out of time and lodged it for filing. It was lodged for filing that day, which was the next business day following 17 December 2021. She says that she is not aware of the reason why the Notice of Appeal was not filed. There is no evidence that she had spoken to the junior colleague about the issue and no explanation why she had not done so. Mr Williamson, who appeared for the Director on the application, conceded that it was an oversight or error. Rule 5405(2) of the Court Procedures Rules provides that the Court of Appeal may “at any time and for special reasons” give leave to file a Notice of Appeal and case summary. This is the mechanism which the Director seeks to invoke.
Consideration
The principles to be applied are summarised by Refshauge J in Dewson v MacDonald [2014] ACTCA 39 at [9].
The authorities addressing the approach taken to extensions of time required by the negligence of an applicant’s solicitors were reviewed in Jess v Scott (1986) 12 FCR 187 at 189-192 in the context of a requirement that there be “special reasons”. Those authorities initially involved a rejection of the possibility that a solicitor’s error may constitute special reasons or a similar formulation, but subsequent authorities reflected a change in attitude which would permit such an error to be within the scope of that concept. In R v Harrington [2015] ACTCA 2 at [9] and R v Nicholas; R v Palmer [2019] ACTCA 38 at [1], the Court of Appeal addressed circumstances in which the Director had failed to file a Notice of Appeal within time.
The position adopted by the respondent in relation to the application was to not oppose it, having regard to the very limited extension of time sought and the reasons for the application. That was an appropriate stance to have adopted. I am satisfied that, as articulated by Mr Williamson, there is an arguable ground of appeal. Obviously, matters of manifest excess or inadequacy are, to a significant extent, a matter of impression. However, the ground of appeal satisfies the relatively modest threshold of arguability.
In the circumstances of the case, as outlined in the reasons of the primary judge, given that the respondent was put on notice of the intention to appeal, the very short period prior to the filing of the application for leave to appeal out of time and the reasons for the failure to file within time, I am satisfied that special reasons exist and that it is appropriate to grant the extension of time to permit the appeal to proceed.
Order
The order of the Court is:
1. The applicant is given leave to file a Notice of Appeal and case summary no later than 4 February 2022 notwithstanding the expiry of the time for filing a Notice of Appeal and case summary under r 5405 of the Court Procedures Rules 2006 (ACT).
| I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 1 April 2022 |
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