Efandis v The Queen - [2014] HCATrans 182

[2014] HCATrans 182

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M27 of 2014

B e t w e e n -
VASILIKI EFANDIS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 AUGUST 2014, AT 2.32 PM

MR R.A. LAWSON: If your Honours please, I appear with my friend, MR N.R. LESLIE, for the applicant. (instructed by Gaffey and Chintulda Lawyers)

MS S.M.K. BORG: If the Court pleases, I appear on behalf of the respondent. (instructed by Solicitor for Public Prosecutions (Vic))

CRENNAN J: Yes, Mr Lawson.

MR LAWSON: Your Honours can see at the second volume of the application book at 587 the beginning of the applicant’s summary of argument.

CRENNAN J: Yes, we have that.

MR LAWSON: She sought a time extension, having been convicted in September - November 2008. She sought leave to appeal coupled with an application for an extension of time with documents filed in August 2013 which was in excess of four and a half years. So when the Court of Appeal dealt with the matter in March this year, there were two questions. First, could a time extension be given and, secondly, on the merits, should leave to appeal be granted. The Court of Appeal decided the matter ‑ ‑ ‑

KIEFEL J: Well, the merits affect the first question as well, do they not?

MR LAWSON: Yes. The Court of Appeal decided the question 12 days later on 19 March and the principal judgment was from Appeal Justice Weinberg, which begins at 567 in the second volume of the applicant’s book. The Court of Appeal, we say, rightly regarded the authorities that governed the question of a time extension to be Darby’s Case and cases that had followed it and the six principles of Darby’s Case were set out by his Honour and they appear at 574.

His Honour has made, with respect, two errors. The first is to regard as he has principle (6) set out at 574 as paramount. So his Honour has said this application which is, first of all, seeking an extension of time is so late. Principle (6) which says an applicant must give a reasonably satisfactory explanation of the tardiness has not been forthcoming and that is the end of the matter.

KIEFEL J: Well, this would not be first occasion on which a court has held that a failure to provide such an account is essential to an extension of time.

MR LAWSON: There was, in the court below, two affidavits before the Court: one sworn in August 2013, a second sworn in the first week of October 2013 by the applicant’s sister and a further affidavit sworn by the principal of the firm who was acting for the applicant then. The explanation of the delay has been adverted to by his Honour in the first…

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 Efandis v The Queen

Details

AGLC: Efandis v The Queen [2014] HCATrans 182
Case: [2014] HCATrans 182
Decision Date

CaseChat Overview and Summary

The case of *Efandis v The Queen* concerned an appeal to the High Court of Australia by the applicant, Efandis, against his conviction for murder. The central dispute revolved around the admissibility of certain evidence during his trial, specifically evidence relating to his prior convictions and alleged bad character.

The High Court was required to determine whether the trial judge erred in admitting evidence of the applicant's prior convictions and other evidence suggesting a propensity to commit violent offences. This involved considering the application of the rules of evidence, particularly those concerning the admissibility of character evidence and the potential for such evidence to prejudice the jury against the accused. The court also had to assess whether the admission of this evidence, if improper, had occasioned a miscarriage of justice.

In its reasoning, the High Court examined the principles governing the admission of evidence of prior convictions and bad character. The court affirmed that such evidence is generally inadmissible if its sole purpose is to establish a propensity to commit the offence charged. However, it acknowledged that evidence of prior convictions may be admissible if it has a legitimate probative value for a purpose other than establishing propensity, such as demonstrating a common purpose or a particular modus operandi. The court found that the evidence admitted in this case was primarily directed at establishing the applicant's propensity for violence and was therefore improperly admitted, as its prejudicial effect outweighed any legitimate probative value.

Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders