Ejueyitsi v Maloney - [2007] WASCA 3

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: EJUEYITSI -v- MALONEY [2007] WASCA 3

CORAM: WHEELER JA

HEARD: 3 NOVEMBER 2006

DELIVERED : 10 JANUARY 2007

FILE NO/S: CACR 109 of 2006

BETWEEN: VINCENT BABANTUNDE EJUEYITSI
Appellant
AND
JOHN MALONEY
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :HASLUCK J
File No  :SJA 1010 of 2006

Catchwords:

Appeal - Extension of time - Lengthy delay - Relevant factors - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Justices Act 1902 (WA), s 184, s 206A, s 206A(3), s 206C
Migration Act 1958 (Cth)
Rules of the Supreme Court, O 65A r 2(b)

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant: Mr A J Camp
Respondent: No appearance

Solicitors:

Appellant: Butcher Paull & Calder
Respondent: Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Lancaster v The Queen [1989] WAR 83
R v Kaddour (2005) 156 A Crim R 11

Case(s) also cited:

Nil

WHEELER JA: This is an application for leave to appeal from the refusal of an extension of time. It arises in the following way.
It was alleged against the appellant that in March and June of 1999 he committed two offences under the Migration Act 1958 (Cth). He was acquitted of one. However, he was convicted after trial on 24 October 2001 in the Court of Petty Sessions at Perth in relation to the complaint alleging that on or about June 1999 he made to an officer performing functions under the Migration Act a statement that to his knowledge was false in a material particular. The statement concerned how long he had resided at a particular address. The question to which it was an answer formed part of an enquiry into the genuineness of his relationship with his wife, and was therefore relevant to his eligibility for a spousal visa.
The appellant was at all relevant times aware of his right to appeal. However, his solicitor advised him that, given the minor nature of the offence and the cost of appealing, it was not worth while to do so. Further, the appellant says in his affidavit that he was unemployed at the time of conviction and was unable to afford the fees required to lodge an appeal. He paid the fine of $1000 by instalments.
There the matter rested, until in November 2004 the appellant lodged an application for permanent residency in Canada, and his application was refused because of his conviction. He lodged an application for leave to appeal and for extension of time within which to appeal in January 2005, by which time he was more than three years and two months out of time.
On 4 March 2005, the application for leave to appeal was heard before Miller J, and it appears that his Honour refused both the application to extend time and the application for leave to appeal. The appellant appealed…

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 Ejueyitsi v Maloney

Details

AGLC: Ejueyitsi v Maloney [2007] WASCA 3
Case: [2007] WASCA 3
Decision Date: 10 JANUARY 2007

CaseChat Overview and Summary

The case of Ejueyitsi v Maloney involved an application by the applicant, Ejueyitsi, to extend the time for filing an appeal against his conviction and sentence. The application was made to the Supreme Court of Western Australia, presided over by Hasluck J. The central issue in the case was whether the applicant had provided sufficient justification for the significant delay in filing the appeal, considering the factors outlined in the relevant legislation and case law.

The court had to determine if the lengthy delay in filing the appeal was reasonable and warranted an extension of time. The applicant argued that the delay was due to the complexity of the case, his unfamiliarity with the legal process, and the need for time to gather evidence. The prosecution contended that the delay was unreasonable and that the applicant had not demonstrated any special circumstances that would justify the extension of time.

In its decision, the court considered the various factors that contribute to the assessment of a lengthy delay. The court noted that while the applicant had provided some explanation for the delay, it was not satisfied that the delay was justified. The applicant had not demonstrated any exceptional circumstances that would warrant an extension of time, and the court found that the applicant had not acted with due diligence in filing the appeal. The court concluded that the delay was unreasonable and denied the application for an extension of time.

The Supreme Court of Western Australia ordered that the application for an extension of time to file an appeal be dismissed. The court's decision was based on the finding that the applicant had not provided sufficient justification for the significant delay in filing the appeal, and that the delay was unreasonable.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

By way of background, I adopt and set out verbatim the summary of the course of the evidence contained in [7] – [17] inclusive of the reasons of Hasluck J. They are:"7The applicant was represented at the hearing by a solicitor, Mr Paul Roth. The prosecutor relied upon the testimony of various witnesses including that of Nola Khan, who married the applicant on 28 February 1999; Scott Brian Hughes, a case officer in the Department of Immigration, and Gail Marie McQueen, who said that in late December 1998 she commenced an intimate relationship with the applicant which continued until late April 1999, and was reinstated later in that year.8A number of other prosecution witnesses gave evidence bearing upon the applicant's movements after his arrival in Australia and upon the nature of his relationship with Nola Khan. All of these witnesses were cross‑examined by counsel for the applicant and he himself gave evidence on his own behalf, and was then cross‑examined.9A central feature of the prosecution case as to both charges was evidence given by Mr Hughes that in mid‑1999 he had the file concerning the applicant's application for permanent residence based on spouse grounds. Mr Hughes was troubled by the evidence produced in support of the application. There were indications that the relationship between the applicant and his spouse had broken down, so Mr Hughes decided to interview them both to see if the relationship was genuine and whether it was still ongoing. It was clear from the evidence adduced in support of the prosecution case that at all material times Nola Khan had been living at 3/187 Hardy [sic] Road, Belmont, a suburb in the metropolitan area of Perth.10Mr Hughes said that he made notes in the course of both interviews. His evidence included reference to the relevant record of interview concerning the applicant dated 22 June 1999. The record of interview consisted of certain printed or typewritten questions on a standard form, followed by the answers. According to Mr Hughes, the handwritten answers on the document were in his hand and recorded the information provided to Mr Hughes by the applicant as interviewee in response to the questions put to him.11The first few questions and answers were as follows:'What is your current address?---3/187 Hardy [sic] Road Belmont.How long have you resided at that address?‑‑‑Since 1997.What is your spouse/partner's name and date of birth?---Nola Khan. 13/1/55.When and where did you first meet them?‑‑‑At Burswood Casino. Unable to remember date met each other.Were you introduced? If so, by whom, or did you meet by chance?---Met by chance.When and where did you start living together?---Claimed in January‑February 99. But was staying there frequently before.Are you employed? If so, what do you do?---Not employed at present. Casual employment security. Studying public health.'12In the course of his evidence‑in‑chief Mr Hughes confirmed that the questions he posed to the applicant included the question concerning his current address. Mr Hughes received the answer '3/187 Hardy [sic] Road Belmont'. The applicant was asked also how long he had resided at that address and the applicant said 'since 1997'. Mr Hughes went on to say that after the interview he received a letter dated 22 June 1999 signed by the applicant and his nominator.13The applicant's 22 June letter was received in evidence as an exhibit. It reads as follows (omitting the inessential parts):'I had an interview with you this morning and you officially requested for a statement or duration of stay within me and my wife.Speaking officially, me and my wife started living together after the marriage as stated in the marriage certificate.Thanks, best regards'14Under cross‑examination, Mr Hughes agreed that at the time of the interview he had concerns about the legitimacy and genuineness of the relationship between the applicant and his wife. Mr Hughes could not say exactly whether the words he wrote on the document were a form of shorthand or the exact words used. This exchange then occurred (t/s 103):'You can't recall whether you said ‑ ‑ whether you copied exactly or shorthand. Is it possible Mr Ejueyitsi said that they had been living together from January and February 1999, but he had been staying there frequently before that, so you put down claimed January 1999, but had been staying there frequently?‑‑‑In ‑ ‑ I would have stated that he claimed in January, February 1999, but was staying there frequently before.That's pretty much what you wrote down there, isn't it?‑‑‑Yes.So when you asked that question, would you agree it's certainly possible Mr Ejueyitsi responded "Officially been living since January February 1999, but I've been staying there frequently before that"?‑‑‑Yes.'The applicant's evidence15The applicant gave evidence to the effect that he arrived in Australia in April or May 1997 on a student visa and went first to Melbourne to study social work at La Trobe University. He came to Perth in July or August 1997 on which occasion he met Nola Khan at the Burswood Casino. On the second occasion they met, he stayed the night at her residence at Unit 3/187 Hardy [sic] Road, Belmont. He went on to describe a subsequent meeting when he came back to Perth in October 1997 with mention being made of a card that she sent to him dated 4 November 1997 signed by her.16The applicant said that he returned to Perth in September 1998 and this led to an arrangement whereby he was staying both at her place and at a hostel linked to Curtin University where he was studying. He said that he cohabited with her in the residence (t/s 152) while also being in the hostel and at certain other addresses. They were married eventually on 28 February 1999.17The applicant's account of the relationship was challenged by the prosecutor in the course of cross‑examination. It was put to the applicant that he was keen to migrate to Australia and that at about the time he was proposing marriage to Nola Khan, he had also put a proposal of marriage to Ms McQueen. It was put to the applicant that he had coached Nola Khan and another witness to give answers that would assist the applicant."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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