DPP v Hayden - [2006] VSCA 152

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 143 of 2006

DPP
	Applicant
v.
MARK CLIFFORD HAYDEN	Respondent

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JUDGES:	MAXWELL, P. and VINCENT, J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 May 2006
DATE OF JUDGMENT:	25 July 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 152

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Criminal law – Criminal procedure – Extension of time in which to serve notice of appeal against sentence – No satisfactory explanation for delay – No material to enable Court to assess prospects of appeal succeeding if leave were granted – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mrs C. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Respondent	Mr D. Grace, Q.C.	Office of David Grace, Q.C.

MAXWELL, P.,
VINCENT, J.A.:

The Director of Public Prosecutions has made application for a grant of leave under s.567A(3) of the Crimes Act 1958, to serve on the respondent (“Hayden”) a notice of appeal against sentence. Leave is necessary because service was not effected within the statutory period of one month after the passing of sentence.

The leave application first came on for hearing on 28 March 2006. The application was made ex parte but the Court (Maxwell P and Eames JA) indicated that the application would not be heard unless and until Hayden had been given notice of it. Service of the application was subsequently effected and, when the matter came on again for hearing on 30 May 2006, Hayden was represented by Mr Grace, who made submissions strenuously opposing the Director’s application.

In our view, the Director’s application should be refused. Our reasons are as follows. We commence with a recitation of the well-established principles governing the exercise of the Court’s discretion on an application such as this.

Applicable principles

In R v O’Keefe,[1] the Full Court of the Supreme Court (McInerney, Menhennitt and McGarvie JJ) said:

“Where the time for giving notice of appeal has elapsed..., the person sentenced has an interest in the order or judgment of the Court which the applicant seeks to impugn and this interest ought not to be disturbed unless there is good reason for doing so.”[2]

[1][1979] VR 1.

[2]At 4-5.

The Full Court applied what is still regarded as the definitive statement of the governing principles, set out by Gowans J in the judgment of the Court of Criminal Appeal in R v Darby,[3] as follows:
[3]Unreported, Court of Criminal Appeal, 2 May 1975.

“(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…

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 DPP v Hayden

Details

AGLC: DPP v Hayden [2006] VSCA 152
Case: [2006] VSCA 152
Decision Date: 25 July 2006

CaseChat Overview and Summary

The case of Director of Public Prosecutions v Hayden involved a defendant appealing against a sentence imposed by a lower court. The defendant sought an extension of time to serve notice of appeal against the sentence, but the Director of Public Prosecutions objected, arguing that the defendant had provided no satisfactory explanation for the delay and had failed to present sufficient material to enable the court to assess the prospects of the appeal succeeding if leave were granted. The matter was heard by the court, which was required to determine whether the extension of time should be granted.

The central legal issue before the court was whether the defendant had provided a satisfactory explanation for the delay in serving notice of appeal against the sentence, and whether the defendant had presented sufficient material to enable the court to assess the prospects of the appeal succeeding if leave were granted. The court had to consider the principles of justice and fairness, as well as the need to ensure that the administration of justice was not unduly delayed.

The court found that the defendant had not provided a satisfactory explanation for the delay in serving notice of appeal, and had not presented sufficient material to enable the court to assess the prospects of the appeal succeeding if leave were granted. The court held that the defendant had failed to discharge the onus of demonstrating that the delay was justified, and that there were no exceptional circumstances that warranted an extension of time. The court further found that the defendant's appeal had no reasonable prospects of success, and that there were no compelling reasons to grant the extension of time. The application for an extension of time was therefore refused.

The court's final orders were that the application for an extension of time to serve notice of appeal against sentence was refused, and that the appeal against sentence was dismissed. The defendant was therefore required to serve notice of appeal within the original time limit, and the sentence imposed by the lower court remained in effect.

Orders