Efandis v The Queen - [2014] VSCA 42

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0157

VASILIKI EFANDIS
	Applicant
v
THE QUEEN
	Respondent

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JUDGES	WEINBERG and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	7 March 2014
DATE OF JUDGMENT	19 March 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 42
JUDGMENT APPEALED FROM	DPP v Efandis (Unreported, Supreme Court of Victoria, Kaye J, 10 September 2008 (date of conviction))

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CRIMINAL LAW – Conviction – Murder – Appeal – Election against refusal by Deputy Registrar (Legal) of application for extension of time – Delay of more than five years in instituting appeal – Various firms of solicitors provided advice as to merits – Prospects said to be ‘guarded’ – Belated claim that verdict unsafe and unsatisfactory – Whether adequate explanation provided for delay – Whether jury ‘must’ have entertained a doubt as to applicant’s guilt – Application refused – R v Darby (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 2 May 1975); Libke v The Queen (2007) 230 CLR 559 and SKA v The Queen (2011) 243 CLR 400 considered.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Mr R Lawson with Mr N Leslie	Allan McMonnies
For the Crown	Mr J Champion SC with Ms K Argiropoulos	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

In 2008, the applicant, Vasiliki Efandis, was convicted of the 2004 murder of her partner, George Marcetta. The trial was lengthy, having commenced on 23 July 2008 and concluded with a guilty verdict on 10 September 2008. The applicant was sentenced, on 28 November 2008, to 24 years’ imprisonment with a non-parole period of 20 years.

For reasons that I shall shortly explain, the applicant did not seek to challenge her conviction, at least in any formal sense,[1] until some five years or so had elapsed, in the latter part of 2013. She then sought an extension of time, pursuant to s 313(1) of the Criminal Procedure Act 2009 within which to file an application for leave to appeal.
[1]An application for leave to appeal containing what might be described as ‘holding grounds’ was filed in December 2008. However, no further steps were taken in relation to that application and it was eventually dismissed in June 2011, effectively for want of prosecution.

Not surprisingly, the Deputy Registrar (Legal) rejected that application. He considered that the applicant had failed to provide an adequate explanation for the lengthy delay in initiating an appeal. He also considered that the proposed appeal had little likelihood of success. He noted, in that regard, that the sole ground of appeal upon which the applicant proposed to rely, namely that the verdict was ‘unsafe and unsatisfactory’, had not been well articulated.

The applicant now seeks, before this Court, to invoke s 313(2) of the Criminal Procedure Act 2009. That section relevantly provides:

If the Registrar of Criminal Appeals of the Supreme Court refuses an application to extend time under subsection (1), the applicant is entitled to have the Court of Appeal determine the…

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] VSCA 42
Case: [2014] VSCA 42
Decision Date: 19 March 2014

CaseChat Overview and Summary

Efandis was convicted of murder and sentenced to life imprisonment. Efandis appealed against his conviction and sentence, contending the jury must have entertained a doubt as to his guilt. The appeal was delayed by over five years, and various firms of solicitors provided advice on the merits of the appeal, which was described as having guarded prospects. The appeal was instituted after the deadline for doing so, and the applicant sought an extension of time. The application for an extension was refused by the Deputy Registrar (Legal). The applicant elected to appeal against that refusal. The central legal issues before the court were whether an adequate explanation had been provided for the delay in instituting the appeal and whether the jury must have entertained a doubt as to the applicant’s guilt.

The court held that the applicant had not provided an adequate explanation for the delay in instituting the appeal. The applicant had received legal advice from various firms of solicitors over the years, but these did not provide a satisfactory explanation for the delay. The court found that the applicant had not shown any exceptional circumstances that would warrant an extension of time. The court also held that the applicant had not demonstrated that the jury must have entertained a doubt as to his guilt. The applicant’s belated claim that the verdict was unsafe and unsatisfactory did not establish that the jury must have had a doubt as to his guilt. The court found that the applicant had not met the high threshold required to succeed in an appeal against conviction on the ground that the verdict was unsatisfactory.

The court dismissed the appeal against the refusal to grant an extension of time. The appeal was dismissed, and the conviction and sentence of the applicant were upheld. The court did not make any orders in relation to costs.

Orders