Fezollari v The King [No 2] - [2025] VSCA 38

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0163

ANTHONY FEZOLLARI	Applicant
v
THE KING [NO 2]	Respondent

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JUDGES:	BEACH and McLEISH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2025
DATE OF JUDGMENT:	17 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 38
JUDGMENT APPEALED FROM:	DPP v Fezollari (Unreported, County Court of Victoria, Chief Judge Rozenes, 12 April 2010) DPP v Fezollari (Unreported, County Court of Victoria, Judge Dean, 29 June 2011)

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PRACTICE AND PROCEDURE – Application for extension of time within which to seek leave to appeal against conviction – Application for leave to appeal against conviction – Applicant relying on interim/holding written case – Applicant currently not taking any step to finalise written case – Applicant in breach of orders requiring revised/final document to be filed and served – Applicant taking no steps to progress applications – Applicant failing to appear or instruct legal practitioners – Applications dismissed for want of prosecution.

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Counsel
Applicant:		No appearance
Respondent:		Ms S Clancy
Solicitors
Applicant:	Not applicable
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
MCLEISH JA:

In 2010, following a plea of guilty to one charge of trafficking methamphetamine, the applicant was sentenced to a term of imprisonment. In 2011, following a plea of guilty to another charge of trafficking methamphetamine, the applicant was sentenced to another term of imprisonment.
On 22 November 2021, and notwithstanding his pleas of guilty, the applicant filed an application for an extension of time within which to seek leave to appeal against his convictions, together with an application for leave to appeal against conviction and a document headed, ‘Interim/Holding Written Case for the Applicant’ (‘the applicant’s interim written case’).
The applicant’s interim written case asserts that Nicola Gobbo represented him between 2004 and 2008; and that she informed on him ‘for over two years between at least 31 August 2006 and 12 December 2008’. In seeking an extension of time within which to file an application for leave to appeal against conviction, the applicant advances two proposed grounds of appeal:
1.There has been a substantial miscarriage of justice because the applicant’s legal representative, Nicola Gobbo, was informing on him to police.
2.There has been a substantial miscarriage of justice because of the failure to disclose, and concealment of the fact, that the applicant’s legal representative, Nicola Gobbo, was a registered police informer.
In January 2022, the applicant applied for an order under s 317 of the Criminal Procedure Act 2009 for the Chief Commissioner of Police to produce various documents. That application was resolved by the making of consent orders in this Court in April 2022. A further dispute about redactions to the documents produced by the Chief Commissioner was resolved by orders made on 14 December 2022.[1]
[1]Fezollari v The King [2022] VSCA 281 (McCann JR).
The s 317 issues between the parties having been concluded, on 22 December 2022, a Registry lawyer sent an email to the parties which, after referring to…

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.

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Details

Case: [2025] VSCA 38
Decision Date: 17 March 2025

CaseChat Overview and Summary

Fezollari applied for an extension of time within which to seek leave to appeal against his conviction. He also applied for leave to appeal against his conviction. The application was heard in the High Court of Australia. The primary issue was whether the applicant was entitled to an extension of time to seek leave to appeal against his conviction, given that he had not taken steps to finalise his written case, and was in breach of orders to do so. The court also considered whether leave to appeal against conviction should be granted.

The court held that the applicant was not entitled to an extension of time to seek leave to appeal against his conviction, as he had not taken any steps to finalise his written case, and was in breach of orders to do so. The court noted that the applicant was relying on an interim or holding written case, and had not taken any steps to progress his applications. The court also noted that the applicant had failed to appear or instruct legal practitioners. The court held that the applications were dismissed for want of prosecution. The court held that the applicant had not demonstrated any exceptional circumstances that would warrant an extension of time, or that would justify granting leave to appeal against conviction. The court held that the applicant had failed to take any steps to finalise his written case, and had not demonstrated any good cause for his failure to do so.

The court dismissed the application for an extension of time to seek leave to appeal against conviction, and the application for leave to appeal against conviction. The court held that the applications were dismissed for want of prosecution.

Orders