Gibbs v Taylor
[2023] VCC 2072
•31 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-23-0719
| DAVID GIBBS | Applicant |
| v | |
| ZACHARY TAYLOR | Respondent |
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JUDGE: | HIS HONOUR JUDGE KELLY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 October 2023 | |
DATE OF RULING: | 31 October 2023 | |
CASE MAY BE CITED AS: | Gibbs v Taylor | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2072 | |
RULING
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Subject:CRIMINAL LAW
Catchwords: Application to Appeal out of Time – Exceptional Circumstances – Material Prejudice – Inadequate or Incomplete Legal Advice
Legislation Cited: Criminal Procedure Act2009; Sentencing Act 1991; Confiscation Act 1997; Evidence Act 2008.
Cases Cited:R v Kelly [2000] 1 QB 198; R v Ioannou (2007) 17 VR 563; Grimanis v DPP [2020] VCC 908; Moutsos v Kinghorn [2023] VC 459; DPP v Archer [2018] VSC 155; DPP v Mudaidat [2004] VSC 17; Samios v DPP [2022] VSCA 108; Cao v Collister [2022] VSC 36.
Ruling: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr E. Kelly | Brett Morris Lawyers |
| For the Respondent | Mr J. Goetz | Office of Public Prosecutions |
HIS HONOUR:
1On the 16th of December 2021, the Applicant, Mr David Gibbs, pleaded guilty in the La Trobe Valley Magistrates Court to one charge of Recklessly Cause Injury. On the same day he was convicted and sentenced to a fine of $3,000.00.
2On the 9th of June 2023, the Applicant filed a notice of appeal in relation to this conviction and sentence. At that time, it was 540 days since the imposition of the conviction and sentence, and 512 days since the time limit imposed by section 255 of the Criminal Procedure Act 2009 (‘CPA’) for the filing of such an appeal had expired. The Applicant now seeks leave of this court pursuant to section 263 of the CPA to file an appeal.
3Pursuant to s 263(2) of the CPA, the court can only grant leave to appeal out of time if it is satisfied that:
(a) Mr Gibbs’ failure to comply with the time limits imposed by the CPA was due to exceptional circumstances (‘Exceptional Circumstances limb’); and
(b) The Respondent’s case would not be materially prejudiced because of the delay in filing the application (‘Material Prejudice limb’).
4These reasons form the substance of my decision on this application.
Applicant Submissions
5The Applicant relied on written submissions filed by Dr Kelly, as well as an affidavit of Mr David Gibbs dated 14 September 2023 and an affidavit of Mr Brett Morris dated 15 September 2023.
6It was submitted that the Exceptional Circumstances limb of the test is satisfied due to the influence of incomplete or otherwise inadequate legal advice and representation by Mr Gibbs’ previous solicitor, in combination with what was described in written submissions as ‘aggravating circumstances.’
7The facts relating to this submission are drawn from the two affidavits filed and the viva voce evidence given by Mr Gibbs at the Application. In summary:
(a) After being charged with the alleged offence, Mr Gibbs met with and retained the services of Mr Ben Green, a solicitor with whom Mr Gibbs had previously worked as a Tradesman;
(b) Mr Green took instructions, and informed Mr Gibbs prior to a mention hearing that he had a good chance of making out the excuse of self-defence in answer to the charges;
(c) Mr Green represented Mr Gibbs at a mention in the Latrobe Valley Magistrates court. Mr Gibbs was not present, but was informed by Mr Green after the hearing that his matter had been adjourned for a Contest Mention on 16 December 2021;
(d) In the time leading up to the Contest Mention, Mr Gibbs did not hear from Mr Green other than receiving an invoice for services rendered to that point. Mr Gibbs formed the belief that he was to represent himself at the Contest Mention.
(e) On the 16th of December, Mr Gibbs attended the contest mention via video link, without Mr Green being present. Mr Gibbs indicated an intention to plead guilty, as he believed that this was his best option. Mr Gibbs entered a plea of guilty to the charge of recklessly cause injury, the other charges having been withdrawn.
(f) Mr Green eventually joined the video link and requested five minutes to speak to Mr Gibbs to obtain instructions. He again advised Mr Gibbs that there was a strong argument for self-defence, and that he should obtain a sentence indication;
(g) Upon the court reconvening, Mr Green advised the learned Magistrate that Mr Gibbs intended to represent himself, but then sought a sentence indication on Mr Gibb’s behalf.
(h) The Magistrate directed Mr Green to ‘stand by’, and then proceeded to ask Mr Gibbs whether he intended to keep his plea of guilty. Mr Gibbs indicated an intention to plead guilty, due to his concerns about the costs of contesting the matter and the length of the hearing up until that point.
(i) Mr Gibbs began to make submissions in mitigation, before the Magistrate terminated his submissions and proceeded to impose a sentence of $3,000 fine with conviction in keeping with the indication she had given.
(j) Following the hearing, Mr Gibbs did not receive any correspondence or advice from Mr Green about his options to appeal the conviction and sentence imposed by the learned Magistrate, and therefore was unaware of his rights in relation to appealing either the sentence or the conviction, nor the requirement to file the appeal within 28 days of his sentencing. Mr Gibbs was also not advised of the potential civil consequences of his plea or the consequential risk of a s 85B application for compensation being made against him.
(k) In February 2023, Mr Gibbs retained Mr Morris to assist him with claims made against him by the victim in this matter, namely an application for a restraining order, a restitution order made pursuant to ss 84 and 85B of the Sentencing Act 1991, and an intentional tort writ.
(l) Between 15 February and 25 May 2023, Mr Morris began to obtain materials from Mr Gibbs, and considered the possibility of Mr Gibbs filing an application to appeal out of time.
(m) On 23 May 2023, Mr Morris became aware of the potential to bring an appeal out of time and he began investigating how such an application could be brought.
(n) On 29 May 2023, Mr Morris began preparing the application which included advising the Court and determining whether he could act. He conducted a detailed conference with the Applicant and emailed the police prosecutor to solicit their support for the application.
(o) The application was filed and signed at Ringwood Magistrate’s Court on 9 June 2023.
8Dr Kelly submitted that the expression ‘exceptional circumstances’ is to be construed according to its ordinary meaning and cited the cases of R v Kelly and R v Ioannou where the term has been held to describe circumstances that are ‘out of the ordinary course, or unusual, or special, or uncommon’ and which ‘need not be unique or unprecedented, or very rare’ nor ‘beyond reasonable expectation or contemplation’ but ‘cannot be one that is regularly, or routinely, or normally encountered’.[1] Dr Kelly contended that the Exceptional Circumstances limb had been satisfied due to incomplete and inadequate legal advice, particularly in relation to Mr Gibbs’ right to appeal conviction and sentence within 28 days following the imposition of sentence.
[1] R v Kelly [2000] 1 QB 198, 208 (Lord Bingham of Cornhill CJ); R v Ioannou (2007) 17 VR 563 (Redlich JA, Chernov and Vincent JJA agreeing).
9I was referred to the cases of Grimanis v Director of Public Prosecutions[2] and Moutsos v Kinghorn[3] at the County Court of Victoria to support the submission that ignorance of the law in conjunction with incomplete or inadequate legal advice may meet the requisite level of exceptionality.
[2] [2020] VCC 908, (‘Grimanis’).
[3] [2023] VCC 459, (‘Moutsos’).
10The case of Grimanis concerned a late application to appeal conviction and sentence relating to a charge of trafficking methylamphetamine. In that case, the applicant was initially sentenced to five months imprisonment’ in the Moorabbin Magistrates’ Court. Parrish J made findings on appeal that the applicant’s prior solicitors had advised him to plead guilty to charges at the Magistrates’ Court hearing. In the Magistrates’ Court, it was asserted that 40 grams of methylamphetamine were found at the applicants’ premises. The applicant believed that he possessed 9.8 grams only and notified his counsel that he was unhappy with the sentence imposed. Further analysis prior to the sentence appeal hearing indicated the correct weight was 9.8 grams. The Applicant was not given legal advice of his right to appeal the conviction and sentence or of his right to change his plea of guilty to not guilty. Of note, Parrish J determined that the applicant was given incomplete or inadequate advice and ultimately found that the applicant had satisfied the test of exceptional circumstances.
11The case of Moutsos concerned an appeal against sentence relating to one charge of common law assault. The sentence was imposed on 6 June 2022 in Broadmeadows Magistrates’ Court and the notice of appeal was lodged 11 November 2022, approximately four months out of time. In that case, the applicant relied on factors including being provided with ‘disorganised’ legal representation, not being able to recall whether she received advice on the implications of recording a conviction and not being given appeal advice following the hearing. The applicant later became aware that her co-offender successfully appealed her sentence and received a non-conviction disposition. Rozen J concluded that the late filing of appeal was ‘due to a constellation of exceptional circumstances that were’ ‘clearly unusual or quite special or distinctly out of the ordinary’ and granted the application.[4]
[4] Ibid [8].
12Dr Kelly relied on Mr Gibbs’ sworn affidavit in which he stated that he did not receive advice from Mr Green or his firm in relation to the following:
(a) The possibility of being sued personally for personal injury;
(b) The quantum of damages that may be claimed in a personal injury claim;
(c) The legal costs associated with a personal injury claim;
(d) The effect that tendering a plea would have on any personal injury claim;
(e) The possibility of a s 85B compensation claim being made under the Sentencing Act1991 (Vic);
(f) The quantum of damages that may be claimed in a s 85B claim;
(g) The legal costs associated with a s 85B claim;
(h) The effect of entering a plea on a s 85B claim;
(i) The possibility of appealing conviction within 28 days of the plea; or
(j) The possibility of appealing sentence and conviction within 28 days of the plea.
13The Applicant stated in his affidavit ‘had I been advised by Mr Green of the matters [listed above], I would not have pleaded guilty’. Dr Kelly conceded that the test of exceptional circumstances requires close consideration of any legal advice that directly relates to an applicant’s failure to file a notice of appeal in time, however submitted, citing DPP v Archer that incomplete and/or inadequate legal advice “given generally” may be “centrally related to whether the delay was due to exceptional circumstances”.[5]
[5] DPP v Archer [2018] VSC 155, [8] - [9] (Bell J).
14The case of Archer concerned judicial review of a decision to grant leave to appeal in relation to a charge of unlawful assault heard in the Heidelberg Magistrates’ Court. In that case, the applicant had pleaded guilty in the Magistrates’ Court following receipt of legal advice as to the likely outcome of the hearing. The sentence imposed confounded his expectations and Mr Archer subsequently sought to appeal. The applicant in that case did not receive advice as to the possibility of appealing against sentence and conviction or advice as to the need to sign the notice of appeal within 28 days. Relevantly, Bell J in that case noted that:[6]
It would have been a legal error for the judge to grant leave to appeal upon the basis that Mr Archer was incompletely advised to plead guilty. This in itself would not have been enough. But his Honour did not so proceed and his plea in the Magistrates’ Court was not the real issue….His Honour discussed the plea of guilty in the Magistrates’ Court because it was related to the issue of the legal advice he was given generally, which included his appeal rights and the procedure to be adopted in that regard, albeit that on his Honour’s findings the advice was not complete in relation to these matters. On the found facts, these matters were centrally related to whether the delay was due to exceptional circumstances, and indeed it would have been an error of law for his Honour to ignore them. Therefore, in my view, this was not a case in which Mr Archer’s found ignorance of the law was irrelevant. It necessarily went into the mix in relation to the explanation for the delay.
[6] Ibid [9].
15In relation to material prejudice, Dr Kelly submitted that any prejudice to the Prosecution case could be appropriately dealt with through provisions of the Evidence Act 2008 and noted that there was a wealth of contemporaneous statements within the brief. He also contended that similar periods of delay are regularly dealt with through the indictable stream before this court.
Respondent Submissions
16Mr Goetz on behalf of the Respondent reminded the court in his written submissions that pursuant to s 263 of the CPA, an appeal lodged out of time is deemed to be an application for leave to appeal out of time.
17He referred the court to the test for leave to be granted out of time, namely that the Applicant must show that the failure to file the appeal within 28 days was due to exceptional circumstances, and that the Respondent is not materially prejudiced by the late filing.
18Mr Goetz argued that the Applicant’s failure to file within 28 days was not due to exceptional circumstances and in any event, if the court found that it was, the Respondent would be materially prejudiced.
19He noted that ‘exceptional circumstances’ is undefined but drew the court’s attention to R v Ioannou[7] and DPP v Mudaidat[8] which have found it to mean “rarely occur or are outside reasonable expectation or anticipation” or are “right out of the ordinary”.
[7] Ioannou (n 2) [16] - [17].
[8] [2004] VSC 17, [13].
20He contended that the Exceptional Circumstances limb relates only to the failure to file the notice of the appeal and does not relate to the merits of the appeal itself.
21Mr Goetz submitted that the entering of a guilty plea was irrelevant to the question of Exceptional Circumstances and also referred the Court to the Supreme Court’s decision of Archer. Relevantly, in that decision, Bell J noted that:[9]
I would accept the submissions made by the DPP that it might not be enough for an applicant for leave to appeal to plead ignorance of the law or rely on the inadequacy of legal advice...it would have been an error for the judge to grant leave to appeal upon the basis that Mr Archer was not competently advised to plead guilty.
[9] Archer (n 7) [8] - [9].
22As to Mr Gibbs’ assertions about the inadequacy of the legal advice provided by Mr Green in the leadup to the 16 December hearing, Mr Goetz drew the court’s attention to the lack of any corroborating evidence from Mr Green or any documentation from Mr Green’s file. In particular, he highlighted that the Applicant and his advisors made no attempt to obtain an affidavit from Mr Green setting out his account of the advice he rendered and the conversations he had with the Applicant, nor any attempt to subpoena the file to determine what file notes or record of advice it contained. Furthermore, given the weight that was placed in this application on Mr Green’s failure to provide adequate legal advice, Mr Goetz noted that there appeared to have been no decision to inquire into Mr Green’s availability or willingness to attend at court for this hearing.
23Mr Goetz argued that Mr Gibbs was content with the outcome of the 16 December 2021 hearing and only became alarmed by it as a consequence of receiving the s 85B notice and the unfolding civil proceedings. He urged the court to find that Mr Gibb was in fact, self-represented at the 16 December hearing and relied on the following factors:
(a) Mr Gibbs had not put Mr Green or his firm in funds; and
(b) Mr Gibbs was content to deal with the matter himself; and
(c) Mr Gibbs obtained a sentence indication he was comfortable with and proceeded to plead guilty; and
(d) Mr Gibbs had little to no contact with Mr Green prior to the hearing and believed he would be appearing on his own.
24It was further submitted that Mr Gibbs failed to file any notice of appeal on four separate occasions following consultations with various legal counsel, including Mr Morris on 14 February 2023, Mr David Gray on 29 May 2023 and Ms Amy Wood on 29 May 2023. Mr Goetz contended that Mr Gibbs’ lack of understanding as to his rights in relation to his engagement of Mr Green does not meet the Exceptional Circumstances test given the period of 397 days following his contest mention and the 99 days following his initial engagement of Mr Morris during which he still had not filed an application to appeal out of time.
25Mr Goetz also submitted that Mr Gibbs had previously appeared before the Magistrate’s Courts in 1987, 1988, 2006 and 2009 on charges of assault or causing injury and he was no stranger to the criminal justice system.
26In relation to material prejudice, Mr Goetz contended that there would be material prejudice to the Respondent in terms of the effect on witness’ memories of the offending by the time a conviction appeal hearing could occur.
Limb 1 - Exceptional Circumstances
27I was referred to the case of Samios v Director of Public Prosecutions (‘Samios’).[10] That case was an application for judicial review of a Supreme Court judge’s decision affirming the correctness of a County Court judge’s Ruling refusing leave to appeal a sentence out of time.
[10] [2022] VSCA 108.
28The facts in Samios are similar to those here inasmuch as Mr Samios pleaded guilty on 20 July 2018 in the Magistrates’ Court to trafficking heroin. He was sentenced to 6 months gaol and a community correction order of 18 months. He was represented in the Magistrates’ Court and his lawyer sought a sentence indication. He pleaded guilty shortly after the indication was given.
29On 23 October 2018 the DPP obtained a restraining order over the applicant’s property pursuant to s 16(2) of the Confiscation Act 1997. Trafficking heroin remains an automatic forfeiture offence for the purposes of the Confiscation Act 1997.
30On 23 December 2018 the applicant’s property was automatically forfeited. The applicant sought to overturn the forfeiture order in the County Court but was unsuccessful.
31On 12 July 2019 the Applicant filed a Notice of Appeal almost 12 months out of time. His County Court application for leave to appeal was heard on 29 August 2019. The applicant relied on 3 affidavits asserting that he had not received proper advice about the potential for forfeiture of his home consequent upon pleading guilty to trafficking.
32Hannan J refused leave to appeal out of time and, relevantly for our purposes, noted:
The matter before this court is an application for leave to appeal out of time. Pursuant to section 263(2) of the [CPA], this court may grant leave to appeal the conviction out of time if … the court considers that the failure to file a notice of appeal within time was due to exceptional circumstances and the court is satisfied that the respondent’s case would not be materially prejudiced because of the delay.
In relation to this matter, I have read the affidavit [relied on by the applicant]. To the extent that it has relevance, in my view, to this application, it appears that the applicant took legal advice on the day that this matter was originally listed as a bail application but subsequently became a sentence indication hearing.
A sentence indication was offered and accepted in circumstances where he was represented. Whilst it may be the case that he did not receive … advice in relation to the consequences of pleading guilty in terms of forfeiture, that does not change his acceptance of the prosecution case and the indication which was given as to sentence.
He made the decision to accept the sentence indication because, no doubt, he thought that that was appropriate, and having received legal advice in relation to that matter, the matter proceeded by way of plea. The applicant then remained in custody for a period of time. During his period in custody, he was served with documents relevant to forfeiture.
A number of offences to which he pleaded guilty are schedule 2 offences. They are automatic forfeiture offences. It may well be that the applicant was surprised in relation to that consequence of his conviction in relation to the matter, but in my view, he is a long way from establishing that there has been any miscarriage of justice.
In relation to this matter, really, the applicant seeks to rely upon him becoming aware that his house was ultimately forfeited as establishing exceptional circumstances. In the end, that’s what it boils down to, a complaint in relation to a lack of advice with respect to that matter. That is a consequence of him pleading guilty and really doesn’t change the circumstances in which he accepted the prosecution facts as asserted and accepted the sentence indication.
He pleaded guilty on that basis. That is not altered by the fact that there is an additional consequence which may or may not have been known to him. He may well have a civil action in relation to the solicitor but that is not a matter for this court. It’s a two-step test in relation to the granting of leave.
33In determining the subsequent application for judicial review, Taylor J, relevantly observed:[11]
[Judge Hannan’s] discretion did not miscarry by treating the [applicant’s] initial ignorance and subsequent dislike of the flow-on effect of his conviction as irrelevant to the soundness of his plea and conviction. Neither affected the genuineness of his Meissner consciousness of guilt or the sufficiency of the prosecution evidence. Other circumstances recognised as productive of a miscarriage of justice, such as where the plea of guilty is induced by threats, were inapplicable to him.
And, as the authorities make plain, there are sound reasons of public policy why appeals against conviction following a plea of guilty are only entertained in exceptional circumstances.
In the instant matter, her Honour obviously considered the timing of the [applicant’s] actions, or inactions, beyond the statutory 28 days relevant. He failed to seek leave to appeal his conviction on four occasions when it might have been expected that he would do so after he became aware of the forfeiture proceedings. They are on 25 October 2018 when he was served with the restraining order, 14 December 2018 (or shortly thereafter) when he was released from prison, 23 December 2018 when his home was automatically forfeited and on 2 April 2019 when the forfeiture order was made. Her Honour was correct to do so.
It follows that her Honour did not err in the exercise of her discretion in finding that the [applicant] had failed to demonstrate exceptional circumstances.
[11] Ibid, [25].
34The Court of Appeal, in disposing of the subsequent appeal, observed:[12]
It is apparent from the circumstances of the present case that, although he may not have been made aware of the possible forfeiture implications of pleading guilty, the applicant pleaded guilty in the face of the sentence indication that was given. And although the applicant has since claimed that the relevant drugs and firearm were not his, there is nothing to suggest that he did not understand the nature of the charges; or did not intend to admit he was guilty of them; or could not in law have been guilty of the offence. That being so, it is impossible to conclude that the applicant’s pleas of guilty could constitute a miscarriage of justice, even in circumstances in which he had not been apprised as to a possible collateral consequence of his pleas.
Returning to the short answer, however, the fact that the applicant pleaded guilty in ignorance of the forfeiture ramifications attending such a course, went no way to explaining why he had not filed a notice of appeal within the statutory time limit, let alone providing a basis for concluding that there were exceptional circumstances for that failure. Neither Judge Hannan nor Taylor J could reasonably have concluded otherwise.
The first ground must fail.
[12] Ibid, [48] - [49].
35Applying the Court of Appeal’s logic to Mr Gibb’s application, it is apparent that he may not have been made aware of the possible s 85B and civil litigation ramifications of pleading guilty, but there is nothing to suggest that he did not understand the nature of the charge to which he pleaded guilty. There is no question that he could at law have been guilty of the offence and it is therefore not open to conclude that his plea of guilty could constitute a miscarriage of justice, even in circumstances where he had not been advised of the collateral consequences of his plea. Moreover, the fact that he pleaded guilty in ignorance of the s 85B and civil law ramifications of electing to plead guilty does not explain why he had not filed a notice of appeal within the statutory time limit, let alone establish a basis for making out exceptional circumstances for that failure.
36I was also referred to the case of Cao v Collister in which Richards J ruled that: [13]
An applicant for leave to appeal out of time bears the onus of establishing that the failure to file the appeal within time was due to exceptional circumstances — that is, circumstances that rarely occur or are outside reasonable anticipation or expectation. The inquiry is directed to the circumstances relevant to the failure to appeal within time, rather than to the subject matter or merits of the appeal.
[13] [2022] VSC 36, at [16]
37The test of Exceptional Circumstances required to grant leave has not been met. There was no corroborating evidence put before the court supporting Mr Gibbs’ suggestion that Mr Green and his firm failed to provide adequate legal advice. I am unable to conclude that Mr Gibbs was represented in the Magistrates’ Court by Mr Green at the time Mr Gibbs indicated to the learned Magistrate that he intended to represent himself and that he intended to plead guilty. It was incumbent on the Applicant to demonstrate that Mr Green was acting as Mr Gibbs’ solicitor when his matter resolved and he elected to plead guilty on 16 December 2021. That could have been done by accessing the solicitor’s file by subpoena or by compelling the attendance of Mr Green, again by subpoena. Neither course was taken.
38No correspondence passing between the Applicant and Mr Green’s firm was produced. Again, had Mr Green been acting on 16 December 2021 as the Applicant’s solicitor, a letter from Mr Green to the Applicant enclosing a final invoice should have ensued. None has been produced. Accordingly, I have concluded that the Applicant was self-represented when he appeared before the La Trobe Valley Magistrates’ Court on 16 December 2021. As such, I cannot positively conclude that Mr Green had a professional obligation at that time or at any stage thereafter to render advice to the Applicant in relation to his appeal rights if he was dissatisfied with the sentence meted out on 16 December 2021. I cannot conclude that the Applicant was dissatisfied with the sentence at any point before becoming aware of the consequential ramifications of his plea some months later.
Limb 2 - Material Prejudice to the Respondent’s case
39Having concluded that exceptional circumstances have not been made out, it is unnecessary to consider whether there is likely to be material prejudice to the Respondent’s case occasioned by the late filing of the application.
40The episode giving rise to the charges against the Applicant took place on 9 January 2021 and in the context of heavy drinking.
41The witnesses are still alive. One of them has indicated a preparedness to recant features of her account. On a contest, the witnesses to the Applicant’s altercation with Mr Dewyse are likely to be cross-examined about the quality of their recollections given the effluxion of time and the alcohol consumed during the day and into the evening.
42The Respondent contends that a summary contest would not be fixed for some months. Almost three years have now elapsed since the incident and memories fade. The Applicant will be gifted a forensic advantage if he is permitted to cross-examine witnesses about their recall of an event that occurred more than three years ago.
43Against that, Dr Kelly maintains that the prosecution can rectify any gaps in witnesses accounts by refreshing their memories from contemporaneous statements
44Section 32 of the Evidence Act 2008 is expressed in these terms:
32 Attempts to revive memory in court
1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.
2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account—
a)Whether the witness will be able to recall the fact or opinion adequately without using the document; and
b)Whether so much of the document as the witness proposes to use is, or is a copy of, a document that —
(i)Was written or made by the witness when the events recorded in it were fresh in his or her memory; or
(ii)Was, at such a time, found by the witness to be accurate
3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.
4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.
45Given that it is for the Applicant to demonstrate that the Respondent’s case would not be materially prejudiced as a consequence of the delay in filing the application, it is insufficient to point to provisions of the Evidence Act which might be utilised to refresh faded memories. It would be open, and indeed appropriate, for these witnesses to have their memories refreshed from written materials available to the parties, but that would not foreclose a robust attack on the reliability of their recollections or the quality of their evidence. Such an attack is likely to be keener and more effective given the staleness of the allegations.
46I accept the Applicant’s argument that it is not uncommon in this court and other courts for trials or conviction appeals to occur two or three years after the alleged offending. The problems complained of by the Respondent are not new problems and solutions have long been available to the courts, but there is nonetheless likely to be some impairment to the way the case is presented due to the fact that over three years will have gone by since the episode of offending.
Conclusion
47On the basis of the above analysis, I am not satisfied that exceptional circumstances have been established to justify the granting of the leave sought and I therefore refuse leave for the Applicant to appeal out of time.
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