Director of Public Prosecutions (ACT) v Tuifua

The Director of Public Prosecutions (ACT) applied to the Supreme Court of the Australian Capital Territory for leave to appeal out of time against a sentence imposed on Frederick Tuifua. The Director contended that the individual sentences, the aggregate sentence, and the non-parole period were all manifestly inadequate. The primary judge had imposed an aggregate sentence of 20 years imprisonment with a non-parole period of 10 years, comprising sentences for assault occasioning actual bodily harm, murder, and intentionally inflicting grievous bodily harm.

The central legal issue before the Court was whether "special reasons" existed, as required by rule 5405(2) of the Court Procedures Rules 2006 (ACT), to grant the Director leave to file a notice of appeal and case summary out of time. The deadline for filing the notice of appeal was 17 December 2021, but it was not filed until 20 December 2021, with the application for leave to appeal out of time lodged on 20 December 2021 and filed on 22 December 2021.

The Court considered that the negligence of the Director's solicitors could constitute "special reasons" for an extension of time, referencing established authorities. It was noted that the respondent had been put on notice of the Crown's intention to appeal at the time of sentencing. The delay in filing was attributed to an oversight by a junior colleague who was on leave, and the subsequent preparation of the application by a senior solicitor. The respondent did not oppose the application, given the limited extension sought and the reasons provided. The Court found that there was an arguable ground of appeal and that, in the circumstances, including the respondent being notified of the appeal intention and the short delay, special reasons existed to grant the extension.

The Court ordered that the applicant be granted leave to file a notice of appeal and case summary no later than 4 February 2022, notwithstanding the expiry of the time prescribed by rule 5405 of the Court Procedures Rules 2006 (ACT).