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 that decision. That appeal was heard before Pullin JA and Murray AJA on 24 October 2005, and their Honours allowed the appeal and remitted the matters to a single Judge, for determination of the extension of time and, if appropriate, the application for leave to appeal. Their Honours took that course, because they identified a potentially arguable ground of appeal, based upon the learned Magistrate's failure to make any specific finding about the date upon which the appellant met Ms Khan, who later became his wife. Because Miller J had considered that there was no detectable ground of appeal, their Honours concluded his Honour's decision was in error. One reason the matter was remitted to a single Judge was because of an issue concerning the applicability of the stricter test for leave to appeal which resulted from the Criminal Appeals Act 2004 (WA). Another reason for the remitter was to allow the respondent the opportunity to raise any questions about the grant of an extension of time and of any prejudice that might arise if an extension were granted.
The remitted application came before Hasluck J on 26 July 2006. His Honour refused the application for an extension of time and, as a consequence, dismissed the application for leave to appeal. In careful and detailed reasons, Hasluck J concluded that, notwithstanding the Criminal Appeals Act 2004, the former provisions of the Justices Act 1902 (WA) applied in respect of the appellant's application for extension of time and for leave to appeal. That was the position for which the appellant contended, and I accept it for the purpose of this application.
Turning, then, to the former Justices Act provisions, the power to extend time was to be found in s 206C which provided that the Court "may … extend or shorten the time allowed under this Part or by rules of court for the doing of any act". The section provided that an application to extend time was to be made ex parte unless the Court had ordered that it be served on any person. The combined effect of s 184 of the Justices Act and O 65A r 2(b) of the Rules of the Supreme Court was that the time allowed for making an application for leave to appeal was 21 days. Section 206A provided that an appeal could be made to the Full Court (now to the Court of Appeal), by leave, from a decision made by a single Judge under s 206C. Section 206A also provided that an application for leave to appeal under that section was to be made to the Court of Appeal constituted by a single Judge. Although the appellant's written submissions suggested otherwise, his counsel accepted before me that the matter with which I am dealing is, therefore, an application for leave to appeal against the refusal to extend time, pursuant to the provisions I have mentioned.
Turning to the merits of the application for extension of time, this was plainly a case of gross delay by an appellant who was at all times aware of his rights but had decided not to exercise them. Hasluck J referred in his reasons at [82] to the case of Lancaster v The Queen [1989] WAR 83, in which Malcolm CJ had said (at 85) that it is well settled that where there has been lengthy delay the Court requires exceptional circumstances to be shown before granting an extension of time, unless it can be shown that there will be a miscarriage of justice if an extension is not granted. At [96], Hasluck J concluded that, leaving aside the question of the merits of the proposed grounds of appeal, there was nothing exceptional which would justify an extension of time. That conclusion was plainly correct and I do not understand it to be challenged. Because Hasluck J had concluded that it was open on the evidence for the learned Magistrate to have convicted the appellant, his Honour concluded that there had further been demonstrated no miscarriage of justice which would justify an extension of time. It is this conclusion which the appellant asserts was in error. It is therefore necessary to consider briefly the merits of the proposed appeal.
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 evidence
15The 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."
The appellant was appearing in person at all stages from the filing of the notice of appeal until, and including, the proceedings before Hasluck J. His proposed grounds of appeal were difficult to understand. However, Hasluck J considered that the Court of Appeal (constituted by Pullin JA and Murray AJA) had treated them as being: first, that the learned Magistrate erred in failing to make a finding in relation to the date when the appellant first met his wife; and, second, that the learned Magistrate failed to give adequate reasons for his decision.
The appellant appears to have contended that the learned Magistrate did not give sufficient consideration to what he alleged to have been his contention that he thought the question asked of him by Mr Hughes was directed to when he had first met and stayed with Ms Khan, rather than to a question of how long he had resided at her address, in the ordinary sense of living continuously there or having it as his place of residence. In careful and detailed reasons, Hasluck J concluded that the reasons for decision provided by the learned Magistrate were not inadequate. His Honour further reached the conclusion that the learned Magistrate proceeded on the assumption that an assertion that one has "resided" at a certain address can be regarded as amounting to an assertion that one has lived at the address in question, and that the appellant's assertion that he had lived at Hardey Road since 1997 was to be regarded as an assertion that he had lived there since that date. His Honour considered that, in the circumstances of this case, the two terms were essentially interchangeable and that that conclusion was supported by the evidence of the appellant himself.
The appellant is now represented by counsel. He has, not surprisingly, produced a minute of substituted grounds of appeal which is easier to understand than his earlier proposed grounds. However, it seems to me that they boil down to essentially the same propositions as those dealt with by Hasluck J. Ground 1 asserts that it was not open to the Magistrate to find that by saying that he had resided at 187 Hardey Road, Belmont since 1997, the appellant had made a statement that he had lived continuously at that address. Further, as I understand it, the appellant's contention is that the answers to the second and sixth questions set out in [11] of the reasons of Hasluck J, quoted above, are such that, read together, the appellant was not saying, and could not have been understood to have been saying, that he had resided at that address, in the sense of living there continuously or having it as his place of residence, since 1997. I do not think it is necessary to set out all of the grounds of appeal, since they essentially amount to variations upon the same theme. In order to evaluate that central assertion, it is necessary to consider in slightly more detail the course of evidence and the issues which emerged during the trial.
In order to make sense of the passage in the Magistrate's reasons to which I will shortly turn, it is necessary to note that there were a number of witnesses with whose evidence the appellant's evidence was in whole or in part inconsistent. There was an acquaintance of the appellant, a Mr Altraide, who said that he had falsely completed documentation relating to the appellant's visa application in which he stated that he had known the appellant for a period of one and a half years when he had not in fact met the appellant until some time between November 1998 and February 1999. The appellant maintained that Mr Altraide's evidence was mistaken or untruthful. Ms McQueen said that she had met the appellant on Christmas Day 1998 and that they had had an intimate relationship extending until approximately April 1999, during which he stayed at her place overnight from time to time and she at times attended his residence in Victoria Park. The appellant denied that evidence, as he did Ms McQueen's assertions about a resumption of the relationship for a short time during 1999. The evidence of Mr Down, a marriage celebrant, who was called as a witness on behalf of the appellant, was to the effect that it was the appellant, rather than Ms Khan, who had initially contacted him in relation to their proposed marriage, and who had been, so far as Mr Down was concerned, largely responsible for the arrangements for the marriage. The appellant's evidence was to the effect that it was Ms Khan who had insisted that he marry her, and who had been largely responsible for the wedding arrangements.
Unfortunately, because of the fact that the appellant appears to have spoken rather quickly, and to have rambled somewhat during the course of his evidence, and perhaps because of some difficulties he has with English, there are important passages in the appellant's evidence at trial which were not able to be transcribed properly, with the word ("indistinct") appearing in a number of places. For example, in relation to a question in cross‑examination about why he had not written, on a migration form, that he had been living in Melbourne until September 1998 (apart from certain times during which he had visited Perth) his answer was:
" … (indistinct) … to the Honourable Court, that I've cohabited with her in these three places. In 1997, when I came to Perth, I stayed in her place. 1998 when I move to (indistinct) … I stayed … (indistinct) … and I stayed in her place again. In 1999, when I move ‑ ‑ when I move to Victoria Park, I stayed in her place. I have cohabited in these three places." (t/s 151) ["her" is plainly a reference to Ms Khan]
Although it is difficult to follow, it seems to me to be reasonably clear from both the cross‑examination of Ms Khan on behalf of the appellant, and from the appellant's own evidence, that his response to this complaint was not to assert that he had mistakenly understood Mr Hughes as asking about the date on which he first met Ms Khan. Rather, he understood Mr Hughes to be asking him about his continuous residence with Ms Khan. It was his contention that he had continuously resided with her in the sense that, although he may have been away from the address given at times, he had stayed at her place when they first met, stayed there again when he returned to Perth after some time in Victoria (in October 1997 or thereabouts) had again stayed at her place in September 1998 after a further visit to Victoria, and that when he had returned on the second occasion he was "cohabiting with her" (AB 152). It was his evidence that that was what he had told Mr Hughes; that is, that he had explained to Mr Hughes that he had lived at Hardey Road in 1997 and had lived there again on the various occasions which he mentioned, so that in that sense he was living continuously at that place (Appeal Book 161). I note that it was put to Ms Khan in cross‑examination that the appellant would regularly return from Melbourne to stay with her between July 1997 and September 1998 and that in early 1998 he had moved his goods into the Hardey Road address, but she rejected those propositions (AB 142).

It follows from what I have said above, that I accept, as did Hasluck J, that the assertion made by the appellant in response to the first and second questions set out in [11] of Hasluck J's reasons was to be understood, and was intended by the appellant at all times to be understood, as an assertion that he had lived at that address, albeit that he might from time to time have spent time away from it. It was that assertion with which the learned Magistrate dealt.
The learned Magistrate made findings, which were well open to him on the evidence, to the effect that the appellant was "intent on achieving a sole purpose of obtaining permanent residency in Australia and used Ms Khan for that purpose" (AB 191). The learned Magistrate accepted the evidence of those witnesses whose evidence was not consistent with the appellant's, save that he considered that there was a question about the accuracy of Ms Khan's recollection as to the precise date upon which she met the appellant. That reservation led to the dismissal of the other complaint.
However, it appears to me that the learned Magistrate generally accepted the evidence of Ms Khan as to the state of her relationship with the appellant. The acceptance of the evidence of the witnesses other than the appellant, and the acceptance of aspects of Ms Khan's evidence, led to the learned Magistrate's conclusion that the appellant "was not confused about the questions and answered them unequivocally. He knew that the information was false, being material to the picture he was trying to paint in his attempt to establish the genuineness of his relationship with Khan". In the context of the evidence, and of the reasons as a whole, that appears to me to be a conclusion that the appellant was to be understood as saying to Hughes that he had been living at Hardey Road, Belmont, in the sense that I have described above, and that that statement was, to the appellant's knowledge, false. That finding, as I have noted, seems to me to have been well open. The learned Magistrate also dealt with, and rejected, an additional or alternative contention, which appeared at times to emerge from the evidence of the appellant, that he had indicated to Mr Hughes that he had only stayed at Hardey Road on some occasions.
Finally, I should note for completeness that the submission was made to me that there was an inexplicable omission, at trial, of any exploration with the appellant of the question of what he had understood by Mr Hughes' questions, and what he had been intending to convey to Mr Hughes. That is not so. He was asked why he had answered Mr Hughes in the way that he had, and his answer was, in effect, that he had been living at Hardey Road since 1997 whenever he was in Perth (AB 161). His answer was not that he misunderstood the question and was intending to indicate when he had first stayed overnight at Hardey Road. His response was, in effect, that the answer he had given was true.
While the proposed grounds of appeal may not be frivolous or vexatious, a close examination of the transcript reveals that they cannot succeed. Further, even if the appellant were correct in the assertion that there was an issue at trial which was not adequately explored, this is plainly not a case in which the Court would be able to substitute its own view. It would be necessary to quash the conviction and to order a re‑trial.
In that context, the question of the applicant's delay assumes considerable importance. In R v Kaddour (2005) 156 A Crim R 11 the New South Wales Court of Criminal Appeal said:
"[33]In R v Gregory at [38]-[45], Hodgson JA, with whom the other members of the Court agreed, pointed out that whether an extension of time should be granted to an appellant depended to a great extent on what justice required but that considerations of justice were not confined to the situation of an appellant but must take into account also the interests of the Crown (and the community represented by the Crown), and of the administration of law generally and that one factor relevant was whether the alleged error, if established, would mean that an appellant would be entitled to an acquittal as of right, or merely to a new trial. If the latter were the case, the question would arise whether such a new trial would be fair to both sides. Other factors included the degree of future harm arising from a wrongful conviction, the possible deprivation of compensation for a wrongful conviction and past punishment and damage to reputation."
Those observations are, in my respectful view, a useful summary of factors relevant to the present case.
This was a case depended heavily upon questions of credibility, and upon the recollection of a number of witnesses about the precise timing of events which occurred now approximately nine years ago. There would be clear prejudice to the respondent from the passage of time in this case, even assuming that the principal witnesses could be located. The appellant's penalty as a result of his conviction was pecuniary and has long since been paid. The consequences for his wish to travel elsewhere, while unfortunate, are not grave. In those circumstances, even if these grounds of appeal had a reasonable prospect of success, which in my view they do not, it would not be in the interests of justice to grant an extension of time to an appellant.
It follows that Hasluck J was right to refuse the extension of time, and I would dismiss the application for leave to appeal from that decision.