Grimanis v Director of Public Prosecutions (Ruling)
[2020] VCC 908
•22 June 2020 (at 9.30am)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-19-2772
| STAVROS GRIMANIS | Appellant/Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 May 2008; 25 May 2020 | |
DATE OF RULING: | 22 June 2020 (at 9.30am) | |
CASE MAY BE CITED AS: | Grimanis v Director of Public Prosecutions (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 908 | |
RULING
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Subject: CRIMINAL LAW
Catchwords: Appeal from Magistrates’ Court – one charge of trafficking methylamphetamine – one charge prohibited possession possessing imitation firearm and one charge of possessing prohibited weapon without exemption or approval – initially appeal on sentence only – application to appeal on both conviction and sentence in relation to charge of trafficking methylamphetamine – application out of time – application of s263 of Criminal Procedure Act 2009
Legislation Cited: Criminal Procedure Act 2009 – s254, s255, s256, s258, s259 and s263;
Cases Cited:DPP v Archer [2018] VSC 155; Kohari v R [2017] VSCA 33; Kalb v Magistrates’ Court of Victoria [2014] VSC 137; Shire of Carnarvon v Klein Corp Pty Ltd [2008] VSC 24
Ruling: Leave granted to the Appellant to appeal in respect of conviction and sentence in relation to Charge 13.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant/Applicant | Ms J Poole | Michael J Gleeson & Associates |
| For the DPP/Respondent | Mr A Buckland | Solicitor for the Office of Public Prosecutions |
HIS HONOUR:
1 Stavros Grimanis, the applicant, seeks leave pursuant to s263(2) of the Criminal Procedure Act 2009 (“the CPA”) to appeal out of time the conviction and sentence in relation to the offence of trafficking methylamphetamine (Charge 13).
Sequence of events
2 There is no issue that the following events occurred:
(a)on 18 December 2019, at the Moorabbin Magistrates’ Court, the applicant pleaded guilty to the following offences:
Charge 1 – use a carriage service to harass on or about 21 May 2018. Such offence is contrary to s474.17(1) of the Criminal Code Act 1995. He was convicted and fined $1,000, together with 127.40 statutory costs (being an aggregate sentence).
Charge 6 – use a carriage service to offend, such offence occurring on 17 June 2018, contrary to s474.17(1) of the Criminal Code Act 1995. He was convicted and fined $1,000, plus 127.40 statutory costs (being an aggregate sentence).
Charge 14 – possess cannabis at an unknown time contrary to s73(1) of the Drugs, Poisons and Controlled Substances Act 1981. He was convicted and fined $400, plus 84.40 statutory costs and ordered to forfeit all drugs and instruments pertaining to drugs.
None of these offences are subject to any appeal.
On the same day, he pleaded guilty to the further following offences:
Charge 13 – trafficking in methylamphetamine on 2 June 2019, contrary to s71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981. He was convicted and sentenced to five months’ imprisonment (being an aggregate sentence). There was, further, an order for forfeiture (without his consent).
Charge 16 – being a prohibited person possessing an imitation firearm on 2 June 2019, contrary to s5AB(2) of the Control of Weapons Act 1990. The aggregate sentence pertaining to Charge 13 applies to Charge 16.
Charge 18 – possessing prohibited weapon without exemption on 2 June 2019, contrary to s5AA of the Control of Weapons Act 1990. The aggregate sentence pertaining to Charge 13 applies to Charge 18.
The total effective sentence was five months’ imprisonment, plus the Forfeiture Order, and it was declared he had eighteen days’ pre-sentence detention;
(b)on 18 December 2019 – that is the same day that the applicant was convicted and sentenced on the various charges – the applicant lodged a sentence-only Notice of Appeal in relation to Charges 13, 16 and 18. The applicant was granted appeal bail that day. At that time, another firm of solicitors acted on behalf of the applicant;
(c)on 10 March 2020, the appeal came on before his Honour Judge Murphy, at which time the applicant’s current solicitors – Michael J Gleeson & Associates – had recently been retained on behalf of the applicant, and sought an adjournment of the appeal on the basis that they were still gathering information and material. Such application was not opposed and the Court ultimately granted the adjournment with the adjourned dated being fixed for 4 May 2020;
(d)on 4 May 2020, those acting for the applicant made application to this Court to adjourn the appeal on the basis that instructions had been given to apply to seek leave to file a Notice of Appeal in respect of both conviction and sentence in relation to Charges 13, 16 and 18.
On 4 May 2020, it was ordered that the applicant file and serve the appropriate application within five days of that day and any further material to be relied upon by the applicant be filed and served on those acting on behalf of the respondent and the Court by 20 May 2020. Otherwise, the appeal was adjourned (part heard) to the 25 May 2020 at 10.30am for the application to appeal out of time to be heard and determined;
(e)on 6 May 2020, an Appeal Notice was filed, seeking leave to appeal against conviction and sentence in relation to Charges 13, 16 and 18. Subsequently, the Court was informed that such application was now only limited to Charge 13.
Relevant legal principles
3 Section 254(1) of the CPA provides that a person convicted of an offence by the Magistrates’ Court may apply to the County Court against the conviction and sentence imposed by the Court, or the sentence alone. Section 255(1) of the CPA provides that an appeal under s254 of the CPA is commenced by filing a Notice of Appeal with the registrar of the Magistrates’ Court within twenty-eight days after the day on which the sentence of the Magistrates’ Court is imposed. Section 256(1) of the CPA provides that an appeal under s254 of the CPA must be conducted as a rehearing and the appellant is not bound by the plea entered in the Magistrates’ Court.
4 In particular, s263 of the CPA states:
“(1) A notice of appeal filed after the end of the period referred to in section 255(1) or 258 is deemed to be an application for leave to appeal on the grounds stated in the notice.
(2)The County Court or the Supreme Court, as the case requires, may grant leave to appeal under subsection (1) and the appellant may proceed with the appeal if—
(a)the court considers that the failure to file a notice of appeal within the period referred to in section 255(1) or 258 was due to exceptional circumstances; and
(b) the court is satisfied that the respondent's case would not be materially prejudiced because of the delay.
(3) If the court does not grant leave to appeal under subsection (2), the court must strike out the appeal.
(4)If —
(a) the County Court or the Supreme Court, as the case requires, strikes out an appeal under subsection (3); and
(b) the appellant had been sentenced to a term of imprisonment or detention by the Magistrates' Court—
(5) If an appeal is struck out under subsection (3)—
(a) the sentence of the Magistrates' Court is reinstated and may be enforced as if an appeal had not been commenced but, for the purposes of the enforcement of any penalty, time is deemed not to have run during the period of any stay; and
(b)the registrar of the County Court or the Prothonotary of the Supreme Court, as the case requires, must give to the respondent or to the respondent's legal practitioner a copy of the order striking out the appeal; and
(c) the making of an order striking out an appeal discharges the undertaking of the appellant to proceed with the appeal.”
(My emphasis.)
5 Those acting for the respondent do not suggest that there would be any material prejudice to the prosecution case because of the delay between the time in which the appeal notice should have been filed to when it actually was. Rather, those acting for the respondent urged the Court that the applicant had not discharged his onus in satisfying the Court that any such delay was due to “exceptional circumstances”.
6 Both parties referred to the decision of DPP v Archer [2018] VSC 155, a decision of Bell J, handed down on 6 April 2018. In Archer, the applicant was involved in an incident at a junior football game which led him being charged with unlawful assault. That charge was heard at a Magistrates’ Court on 3 September 2017, when Archer pleaded guilty to the charge after receiving certain legal advice as to the likely outcome of the hearing. That advice apparently followed discussions between his then legal representative and the prosecution.
7 Contrary to his expectations, the court convicted Archer and fined him the sum of $2,000 plus costs, and ordered that he pay compensation of $955.
8 When the sentence was announced by her Honour, and after the hearing, Archer made clear in various ways that he was unhappy with the outcome of the case, and in particular, on 21 September 2017, within the twenty-eight-day appeal period, his initial legal representative filed with the court, an unsigned Notice of Appeal against sentence only to the County Court of Victoria. At the request of the Magistrates’ Court at Heidelberg, Archer’s then legal representatives later asked him to sign the Notice, but not that this had to be done urgently.
9 Archer sought legal advice from a barrister in early- to mid-October 2017, who did not tell him that he could appeal against both sentence and conviction (notwithstanding his plea of guilty at the Magistrates’ Court) or that the time limit was twenty-eight days.
10 A Notice of Appeal was ultimately signed and filed, but only against sentence.
11 Archer retained different legal representatives who were criminal law specialists, late in October 2017, and at that time, for the first time, he was advised that he could appeal against both sentence and conviction. Through his new solicitors, Archer made application for leave to appeal against both sentence and conviction in late-October 2017 – being well outside the requisite twenty-eight days.
12 The application for leave to appeal was heard before His Honour Judge Grant on 21 September 2017. Against the opposition of the prosecution, His Honour granted leave for Archer to file a Notice of Appeal in relation to conviction and sentence.
13 Under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), the Director of Public Prosecutions sought an order from the Supreme Court by way of judicial review quashing the grant of leave. It was contended that His Honour Judge Grant, misapplied s263(2)(a) of the CPA in which a test of exceptional circumstances was specified. It was noted by the presiding Judge, Bell J, that:
(a)it was not part of his function in determining the application for a judicial review to reconsider, on the merits, the application for leave to appeal. It was incumbent upon the Director of Public Prosecutions to establish legal error, such as jurisdictional error or failure to consider relevant considerations, or considering irrelevant considerations on the part of Judge Grant;
(b)it was common ground that s263(2)(a) confers a discretion to grant leave to appeal after the twenty-eight-day period has expired. To enliven that discretion, an applicant must establish that the failure to lodge a Notice of Appeal within the time was due to exceptional circumstances.
In their written submissions by counsel appearing before Bell J, the parties referred to principles discussed in various authorities which the judge considered, including Schwerin v Equal Opportunity Board [1994] 2 VR 279; R v Ioannou (2007) 17 VR 563; Owens v Stevens (unreported, Supreme Court of Victoria, Hedigan J, 3 May 1991); M.A.C. v R (2012) 34 VR 193; Coulston v State Coroner of Victoria [2018] VSC 103 and Kohari v R [2017] VSCA 33, a decision of the Court of Appeal (consisting of Weinberg and Kyrou JJ) handed down 1 March 2013.
Bell J noted that Redlich JA (with the agreement of the other members of the Court of Appeal) in Ioannou (op cit), the “exceptional circumstances” must be such as to rarely to occur, and clearly unusual or quite special, and distinctly out of the ordinary, and be related to why the appeal was not commenced within the specified time (see Ioannou (op cit) at [17]);
(c)Bell J noted that in the reasons given by his Honour Judge Grant, there was no reliance on him granting leave based on the merits of what occurred at the hearing before the Magistrate. Any such reference was more of background information. Bell J made clear if Judge Grant had decided to grant leave to appeal because Archer was unhappy with the outcome of the hearing, he would have quashed the decision because that is not what the statutory test requires;
(d)Bell J noted that the central consideration informing his Honour’s condition was that Archer’s evidence was that he was initially not given certain legal advice. The legal advice that he was given was incomplete or inadequate and that he later acted promptly when he was given proper legal advice by his present legal representatives.
Bell J commented that the submissions made by the Director of Public Prosecutions 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. Bell J referred to the Supreme Court decision of Kalb v Magistrates’ Court of Victoria [2014] VSC 137, as an example of leave being refused in that kind of case, but in the present case, Bell J noted the period of delay was only a few weeks.
It was also noted by Bell J that it would have been a legal error for the Judge to grant leave to appeal upon the basis that Archer was incompetently advised to plead guilty. Bell J noted that this was not enough and also noted that His Honour Judge Grant did not so proceed on that basis and his plea in the Magistrates’ Court was not the real issue. As Bell J noted, both s254(1) and s256(1) of the CPA, under which Archer was entitled to appeal to the County Court against both sentence and conviction whatever plea he entered in the Magistrates’ Court.
14 Ultimately, Bell J dismissed the application for judicial review.
15 I also refer to the decision of Kalbv Magistrates Court of Victoria [2014] VSC 137, which was referred to by Bell J in Archer (op cit). In Kalb (op cit), the appellant, by Notice of Appeal to the Supreme Court of Victoria dated 5 March 2014, appealed against an order of the Magistrates’ Court of Victoria at Frankston. By virtue of s272(7) of the CPA, an appeal commenced after the end of the period of twenty-eight days after the day on which the Order complained of was made, is deemed to be an application for leave to appeal.
16 In particular, s272(8) of the CPA provides:
“The Supreme Court may grant leave under subsection (7) and the appellant may proceed with the appeal if the Supreme Court—
(a) is of the opinion that the failure to commence the appeal within the period referred to in subsection (3) was due to exceptional circumstances; and
(b) is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.”
17 Section 272(8) of the CPA, although not the same as s263 of the CPA, does have similar wording. In Kalb (op cit), Derham AJA referred to the decision of the Shire of Carnarvon v Klein Corp Pty Ltd [2008] VSC 24, where J Forrest J analysed the authorities relevant to the application under s109(5) of the Magistrates’ Court Act 1989 which, for present purposes, is materially the same as s263(2) of the CPA. Such analysis is of some use given its precision.
18 His Honour concluded that the authorities stand for the following principles:
(a)the granting of an extension of time is not automatic. Upon the expiry of the time for lodgement of an appeal, the respondent has a vested right to retain the judgement unless the application is granted;
(b)the onus lies on the applicant to satisfy the test of exceptional circumstances;
(c)although “exceptional” is defined as meaning “unusual, special, out of the ordinary course” in the Oxford English Dictionary, in the context of the Act, the circumstances must be such that they can be said to “rarely occur” and “perhaps be outside reasonable anticipation or expectation”;
(d)the enquiry is confined to the circumstances relevant to the applicant’s failure to appeal within time and whether they may be characterised as exceptional;
(e)as part of the enquiry, the court will examine the conduct of the applicant (and his or her agents) in the prosecution of the appeal and the explanation for failing to lodge the Notice within time.
The evidence in this appeal
19 In support of the application made under s263(2) of the CPA, the applicant gave viva voce evidence and was cross-examined, and furthermore, the applicant relied on an affidavit of Damian John McNally (“McNally”), sworn on 8 May 2020 (referred to as the affidavit of McNally).
20 It is convenient to initially refer to the affidavit of McNally wherein he describes himself as the principal solicitor of Michael J Gleeson & Associates and who has the care and conduct on behalf of the applicant. In particular, he gives the following evidence:
·At around 4.45pm on 6 March 2020, the applicant attended a conference with McNally and instructed his office to represent him at the sentence appeal which was listed on 10 March 2020. At that time, the applicant told McNally that he had been previously represented by another firm of solicitors, who appeared for him on 18 December 2019 before Magistrate Tan at the Melbourne Magistrates’ Court.
·The applicant was unable to inform McNally as to what charges he pleaded to at the Court on 18 December 2019, but did, however, provide a copy of the brief in which the informant was Senior Constable Rawal and that the appeal related to those charges;
·A solicitor from the office of McNally appeared before His Honour Judge Murphy on 10 March 2020, seeking an adjournment as the matter had not been properly prepared. The matter was adjourned to 4 May 2020.
·On 10 March 2020, the applicant was advised the matter would not be able to proceed to preparation until payment was made into the trust account. There were several attempts to contact the applicant and ultimately, on 30 April 2020, the applicant was contacted, funds were received into the trust Account, and a Ms Joanne Poole of counsel was briefed.
·On 30 April 2020, McNally requested a copy of all notices and orders made at the Melbourne Magistrates’ Court on 18 September 2019 and on the same day such documents were received. Furthermore, at about 5.00pm on 30 April 2020, McNally contacted the Office of Public Prosecutions and requested a copy of all materials filed at the County Court.
·At 9.52am on 1 May 2020, McNally received materials by way of email from Mr Jason Allen, solicitor for the OPP – included in those documents was a summary of the allegations of the offending (without any amendments), with the main allegation regarding the charge of trafficking methylamphetamine being the seizure of an alleged 40 grams of methylamphetamine from the applicant’s residence. This was forwarded to Ms Poole on 1 May 2020 at 10.09am. The applicant did not attend the office of McNally for the planned conference on 1 May 2020.
·On Monday 4 May 2020 – the date of the sentence-only appeal, the following matters occurred.
– at around 9.00am, Ms Poole, the barrister retained by McNally – spoke with the applicant by phone and obtained instructions. At that time, the applicant instructed that he believed the drugs, the subject of the trafficking charge, were significantly less than which appeared in the unamended summary
– at 10.39am, McNally spoke to Mr Allen of the OPP and requested a copy of an “amended” summary of allegations and a copy of the Certificate of Analysis relating to the methylamphetamine which was the subject of the trafficking charge
– around 11.30pm, McNally met with Ms Poole at the Melbourne County Court and subsequently both had a conference with the applicant and his support person
– Ms Poole held discussions with Mr A Buckland of counsel, who appeared on behalf of the prosecution and who provided her with a copy of the respondent’s submissions, dated 30 April 2020. McNally had not been earlier provided a copy of this document and it is clear from those submissions that the OPP alleged an amount of 9.8 grams as forming the basis of the trafficking charge
– at about 11.40am, McNally again spoke with Mr Allen of the OPP, who advised that he did not have a copy of the Amended Summary and the informant was on leave, and he was not able to successfully contact the Victorian Prosecution Unit at Moorabbin
– at 11.47am, McNally received a copy of the Certificate of Drug Analysis via email from Mr Allen. The Certificate indicated that 9.8 grams of methylamphetamine contained less than approximately 0.4 grams of pure methylamphetamine. McNally immediately showed this document to Ms Poole by forwarding a copy of the Certificate via email
– at 11.50am, Ms Poole and McNally had a further conference with the applicant regarding the merit of an appeal against conviction, given the Certificate of Analysis. The applicant instructed them to file an appeal against conviction with respect to the charge of trafficking in methylamphetamine.
– at 12.15pm, the appeal against sentence was called on by His Honour Judge Parrish, whereat Ms Poole appeared on behalf of the applicant. The Court was informed of the recent developments and noted that neither party had a copy of the Amended Summary of Allegations on which the applicant was earlier sentenced. Application was made by Ms Poole for an adjournment to facilitate the filing of appeal against conviction in accordance with the applicant’s updated instructions and such application was not opposed by counsel for the prosecution.
– on 5 May 2020, at 2.35pm, McNally received and email from Mr Allen of the OPP with a copy of the Amended Summary of Allegations attached.
21 McNally was not called for cross-examination and I accept the factual matters to which he has deposed.
22 Reference has been made to what has been called the “Unamended Summary” and “Amended Summary”. For present purposes, paragraphs [10] and [11] of the Statement made by Rawal are potentially relevant. In the Unamended Statement those paragraphs read:
“10.1 x plastic bag containing white crystal substance in four small resealable bags. Spot test on this crystal substance was conducted which showed presence of approximately 40 grams (combined weight) of methylamphetamine in two resealable bags …
11.Small container containing approximately 76.2 grams of unknown white powder. Spot test on this substance showed inconclusive result.
Drug paraphernalia and scales were also located in the accused’s bedroom.”
23 The Amended Summary reads:
“10.1 x plastic bag containing a resealable bag containing 9.9 grams of methylamphetamine (approximate in purity less than 0.5 per cent).
11.The total weight of methylamphetamine being 9.8 grams. Drug paraphernalia and scales were also located in the accused’s bedroom.”
The evidence of the Applicant
24 The applicant gave the following evidence under oath.
·He had been trained as a butcher but was now doing some concreting work.
·On 2 March 2019, a search warrant was executed at his premises and later he was arrested, charged and remanded in custody until ultimately released on bail.
·He was charged with the trafficking of methylamphetamine (among other charges) and retained solicitors to appear on his behalf at the Magistrates’ Court.
·He requested his then lawyers to have the substances fully analysed because he knew it was not methylamphetamine at the premises.
·He attended the Moorabbin Magistrates Court on 18 December 2019 and on the recommendation of his solicitors, pleaded guilty to a number of charges, one of which was the trafficking of methylamphetamine. He thought he pleaded guilty to a 9.8 gram amount.
·He had a barrister that day retained by his former solicitors, but he had not met her before that day.
·He was sentenced to a term of five months’ imprisonment that day in relation to the trafficking of methylamphetamine. He was asked by his barrister whether he wished to appeal the sentence and he said “yes”, causing her to apply for appeal bail, which was granted that day.
·The applicant was not told by his barrister that he could change his plea to not guilty or that he could appeal against the conviction. The first time he was aware of those circumstances was when he came to Court on 4 May 2020.
·He had no further communication with those solicitors after the Magistrates’ Court appearance. He did not try to contact them, because he made the decision he was going to use other solicitors, as he was not happy with his dealings with his first solicitors.
·He ultimately instructed new solicitors – Michael J Gleeson & Associates – prior to 10 March 2020, which was the date of the sentence appeal. After originally talking to the solicitor at Michael Gleeson’s office, he instructed them to adjourn so the case could be prepared. He confirmed that he was also told that they would need to receive funds in order for further work on the sentence appeal to be undertaken.
·At that time, his work had come to quite a halt as a result of the COVID-19 situation and his work hours dropped from about sixty hours per week to twenty hours a week, which consequently reduced his income substantially.
·He initially paid his previous solicitor’s fees, but it took some time to obtain those further funds to pay further legal fees to his new solicitors because of his reduction in work hours.
·Ultimately his legal fees were paid into the solicitor’s account on 30 April as a result of his parents assisting him with the money.
·He had a conference with this current solicitor on 4 May 2020, prior to the sentence-only appeal. At that time, he was given some advice as to his rights of appeal and was told that he had a right to appeal against conviction, which he was not aware of until that time. As soon as he became aware, he asked his solicitor to appeal against the conviction in relation to trafficking methylamphetamine.
25 Under cross-examination, the applicant gave further evidence:
·Prior to 4 May 2020, he had not been told by his earlier solicitors that he could appeal against conviction and the discussion was just about sentence only. He did not ask whether he could appeal against conviction as he is not familiar with the laws and he did not enquire of his barrister.
·He was unhappy with the barrister in all the circumstances at the initial hearing before the Magistrate.
·He was told that it was more likely he would get a Community Correction Order by way of sentence and he did not think he would get a jail sentence in relation to the offence. He was advised to plead guilty in all the circumstances.
·He confirmed that he had seen the Amended Summary that was the Summary read out to the Magistrates’ Court. He did not realise it was 9.8 grams at the Magistrates’ Court but realised the weight of drugs when it was listed before Judge Murphy in the County Court, but thought, up to that time, it was 3.5 grams.
·He confirmed that his previous solicitors informed him that it was his best option to plead guilty to the charge.
·He disputed when it was put to him that for many months after pleading guilty to the offence in the Moorabbin Magistrates Court he did nothing but sit on his hands.
26 Under re-examination, the applicant gave evidence that he would have said “Yes” if his barrister at the Magistrates’ Court had asked him “Do you want to appeal against your conviction?”
Submissions by the parties
27 Both counsel for the applicant and counsel for the prosecution provided written submissions which may be summarised as follows:
(a) on behalf of the applicant, it was submitted:
· The applicant was not advised by his previous legal representative that he had a right to appeal his conviction – in this sense any advice given by his barrister on the day he was convicted and sentenced, was incomplete or inadequate.
· The first time the applicant became aware of his right to appeal against his conviction for the trafficking offence was during the course of a conference with his legal representatives on 4 May 2020.
· Prior to the conference on 4 May 2020, the merit of an appeal against conviction was not apparent to the applicant’s current legal representatives. This was because, until that time, the applicant’s current legal representatives only had a copy of an unamended prosecution summary, alleging seizure from the applicant’s residence of approximately 40 grams of methylamphetamine. It was only on the morning of 4 May 2020 that they received from the respondent a copy of the Certificate of Analysis of the methylamphetamine, the subject of the trafficking charge, and the respondent’s submissions, dated 30 April 2020. Consistent with the applicant’s instructions provided that morning, those documents showed that an amended – and significantly lesser – quantity of 9.8 grams of methylamphetamine with a purity of less than 0.4 grams, formed the basis of the plea to the trafficking charge.
Counsel for the applicant submits, by way of background, that the weight and the purity of the methylamphetamine could form the basis that he was not trafficking methylamphetamine.
· On receipt of those documents, the applicant’s current legal representatives advised the applicant, in a conference on 4 May 2020, of his right to appeal against his convictions and the merits of doing so.
· On becoming aware of his right of appeal to both conviction and sentence, the applicant immediately instructed his current legal representatives that he wished to exercise that right.
· Pursuant to those instructions, a Notice of Appeal against conviction was filed properly on 7 May 2020.
· Any delay prior to 4 May 2020 related to the sentence appeal and is irrelvant for the purposes of this application. She further submitted that if the Court was against her on that submission, she highlights the lack of funding (due to a downturn in work) brought about by the COVID-19 virus was an exceptional circumstance. In particular, it was submitted that the lack of funding available to engage his new solicitors until such time that his parents helped out, was an exceptional circumstance arising as a result of the virus. It was submitted that on the authority of Archer (op cit), exceptional circumstances are established and leave should be given by the Court for the applicant to prosecute the conviction and sentence appeal in relation to the trafficking charge.
· Counsel also noted that no material prejudice will arise to the prosecution by reason of delay and in particular, the prosecution evidence supporting the trafficking charge remains available.
28 Ultimately, it was submitted that the applicant’s delay in commencing the conviction appeal was due to “exceptional circumstances” and leave should be given by the Court for the applicant to pursue the conviction and sentence appeal in relation to the trafficking charge.
29 Furthermore, it was emphasised that the applicant had acted promptly on exercising his rights on becoming aware of them and the respondent would not be materially prejudiced as a result of the delay. It was submitted that the discretion to grant leave should be exercised in the applicant’s favour, consistent with the approach of Archer (op cit).
30 Counsel for the prosecution, although accepting there was no issue about prejudice to the respondent, submitted the Court should not be satisfied, on the balance of probabilities, that the applicant had established “exceptional circumstances”.
31 Counsel for the prosecution submitted that the applicant had “sat on his hands”.
32 In particular, counsel for the prosecution noted the following:
(a)the deadline to file a Notice of Appeal in this matter was 15 January 2020. The Notice of Appeal seeking a conviction and seeking appeal was filed “on or around 7 May 2020”, approximately 113 days out of time and approximately four-and-a-half months after the apllicant’s sentencing in the Magistrates’ Court. I should add that the records would indicate that the conviction and sentence appeal was filed on 6 May 2020;
(b)on 4 May 2020, the Court adjourned the hearing of the appeal to 25 May 2020. As at 21 May 2020, the only further material the respondent had been served with pursuant to orders made by me on 4 May 2020, was the affidavit of McNally, together with submissions to be made on behalf of the applicant (these being received on 22 May 2020);
(c)in relation to the existence of “exceptional circumstances”, it was submitted that the applicant pleaded guilty and was sentenced based on an accurate Summary of Offending, and that the fact that his decision to institute a conviction appeal is now out of time is primarily a result of him “sitting on his hands” in relation to seeking legal advice. Such submissions are based on the following:
– the decision to institute a conviction appeal appears to have arisen as a result of the applicant’s discussions with his current legal representatives and to have been reached upon the view that the applicant was sentenced in the Magistrates’ Court based on a Summary of Offending which did not reflect reality;
– the affidavit of McNally attesting to the applicant making initial contact with his current representatives on 5 March 2020;
(i)only five days prior to the original County Court listing of the sentence appeal in the matter; and
(ii)some two-and-a-half months after the date of sentencing in the Magistrates’ Court.
At that time, the applicant was already fifty days out of time to lodge a Notice of Appeal:
– no explanation has been provided as to the above timeline, leaving the inference only of delay on the applicant’s part (these submissions were prepared before the evidence of the Appellant).
– the Certificate of the Analysis with the OPP provided to the applicant and which precipitated the application to change the nature of his appeal, was contained in what is marked as the Disclosure Brief of Victoria Police. Noting that the applicant provided a copy of the “brief”, in the matters to his current solicitor on 6 March 2020, (see the affidavit of McNally) and assuming that it is the Disclosure Brief that would have been in the applicant’s possession, then the Certificate of Analysis would have been in the possession of the applicant – and his representatives – as at least that time, and likely since the time of the Magistrates’ Court hearing.
– it is now apparent the appellant pleaded guilty to the relevant charges in the Magistrates’ Court and was sentenced thereupon on the basis of an accurate Summary of Offending that reflected the findings of a significant analysis and the actual quantity of drugs involved in the offending.
33 Such factors, it is submitted, demonstrates the absence of any “exceptional circumstances”, and such an application for leave to institute a conviction appeal out of time should be refused. I do refer to McNally’s affidavit, and there is no issue the applicant gave McNally a “copy of the brief”, where the informant was Senior Constable Rawal. However, I also refer to paragraphs [3](g)-(n) of the affidavit of McNally, wherein he deposes as to the request to the OPP that a copy of all materials filed with the County Court be provided. He received emails from Mr Jason Allen, solicitor for the OPP, at 9.52am on 1 May 2020, which included a summary of allegations of the offending (without any amendments) and the allegation made regarding the trafficking of methylamphetamine relating to the seizure of 40 grams of methylamphetamine from the residence of the applicant. Furthermore, at about 10.39am on 4 May 2020, McNally spoke with the solicitor at the OPP and requested a copy of an “Amended Summary of Allegations” and a copy of the Certificate of Analysis relating to the methylamphetamine, which is the subject of the trafficking charge. During that morning, Mr McNally was later advised by the solicitor from the OPP that at that stage he was unable to locate the amended summary, and the informant was on leave and not able to be contacted. However, at about 11.47am, McNally did receive a copy of the Certificate of Analysis via email from Mr Allen.
34 It does appear that the so-called “copy of the brief” given by the applicant to McNally did not contain either the amended summary or the Certificate of Analysis. I also note that the amended summary was not received by the applicant’s present solicitors until 5 May 2020 which, according to the submissions made by counsel for the prosecution, was the date which the OPP received such summary by email from Victoria Police.
35 On the basis of all the material, I consider it unlikely that, whatever documentation was handed by the applicant to his new solicitors on 5 March 2020, it did not contain the Certificate of Analysis and certainly not the amended summary.
36 After a consideration of all the material, I make the following findings:
(a)the prior solicitors of the applicant advised him to plead guilty to various charges at the Magistrates’ Court on 18 December 2019 and, in particular, to Charge 13, which alleged trafficking of methylamphetamine;
(b)it is not totally clear what documents the initial solicitor of the applicant had leading up to the Magistrates’ Court hearing on 18 December 2019. The applicant met his barrister for the first time on that morning and a plea of guilty was entered, when the applicant was somewhat surprised when he heard what was said to be the alleged amount of methylamphetamine found at his premises;
(c)on finding the applicant guilty of, in particular, Charge 13, and sentencing him to an aggregate sentence of five months’ imprisonment, the Appellant made it known to his barrister that he was unhappy, and to her enquiries as to whether or not he wanted to appeal the sentence, he agreed with such course, and an appeal notice in relation to sentence was filed on 18 December 2019. I find there was no discussion between the applicant and his barrister as to whether he could appeal conviction and sentence. In this way, I consider that in circumstances similar to Archer (op cit), the applicant was not given wrong legal advice but, rather, such advice was incomplete or inadequate. Over the period from lodging the sentence only appeal on 18 December 2019, up to 4 May 2020, the applicant had no knowledge of the right to lodge a conviction and sentence appeal notice, notwithstanding that he had pleaded guilty to the offence at the Magistrates’ Court. Up to that time, he was under the apprehension – correctly – that his appeal was limited in regards to sentence;
(d)he initially contacted his present solicitors on 5 March 2020 and gave instructions for them to appear at the first appeal date – 10 March 2020 – before Judge Murphy. At that time, the appeal was adjourned to allow further information and material to be obtained;
(e)over the period from 10 March 2020 until 30 April 2020, there were several unsuccessful attempts to contact the applicant to make clear to the applicant that funds would need to be placed into the trust account of his new solicitors before they could proceed to do any further work. Ultimately, contact was made with the applicant on 30 April 2020. In his oral evidence, the applicant described how his employment had been significantly affected over this period, causing a significant reduction in wages. He not only had to settle the account with his initial solicitors but gather enough money to put into the trust account of his new solicitors. Ultimately, he received assistance from his parents to do so. Such a situation was brought about by a significant reduction in his work and consequential loss of income as a result of COVID-19.
It must be borne in mind, as submitted by counsel for the applicant that any delay was in relation to the sentence appeal, as the applicant had no knowledge whatsoever about his right to file a conviction and sentence appeal until 4 May 2020. Furthermore, if that period of time is relevant, I consider it an “exceptional circumstance”, being the devastating consequences COVID-19 has had on many people dependent on their weekly income. I do not accept the submission that the applicant “sat on his hands” during this time;
(f)it was not until 4 May 2020 that the applicant was informed of his right to lodge an appeal in relation to conviction and sentence – nothing of which his previous solicitors had informed him. Such situation came about by his present solicitors obtaining the Certificate of Analysis on that day – that is, 4 May 2020, when instructions were sought on the basis of this further information;
(g)the application for appeal in relation to conviction and sentence was lodged two days later, on 6 May 2020.
37 In all the circumstances, I am satisfied that the applicant has discharged his onus to satisfy the test of “exceptional circumstances” – those being his first solicitors failing to give him complete or adequate legal advice at the time, on 18 December 2019. I consider this was compounded by his present solicitors, through no fault of their own, not obtaining the Certificate of Analysis until the morning of 4 May 2020. When such information was obtained and instructions sought from the applicant, those acting for him lodged the application on 6 May 2020.
38 I grant leave to the Appellant to appeal in respect of conviction and sentence in relation to Charge 13.
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