Jamie Holyoake v The Queen
[2021] VSCA 10
•5 February 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0161
| JAMIE HOLYOAKE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE, McLEISH and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 February 2021 |
| DATE OF JUDGMENT: | 5 February 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 10 |
| JUDGMENT APPEALED FROM: | DPP v Holyoake (Unreported, County Court of Victoria, Judge O'Connell, 6 December 2019) |
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CRIMINAL LAW – Appeal – Procedure – Application for extension of time to file application for leave to appeal against conviction and sentence – Applicant convicted of two charges of committing an indecent act with a child under 16 years – Total effective sentence 2 years 9 months’ imprisonment with non-parole period of 18 months – Significant delay – Whether miscarriage of justice caused by factual error in prosecution opening and reasons for sentence – Explanation for delay unsatisfactory – Lack of merit in proposed grounds of appeal – Application refused – Barber v The Queen [2018] VSCA 232 applied, Criminal Procedure Act 2009 ss 275, 276 and 279.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Ms R Harper | Ms A Hogan, Solicitor for Public Prosecutions |
KAYE JA
McLEISH JA
NIALL JA:
On 12 September 2019, the applicant was convicted, by the jury empanelled on his trial, on two charges of committing an indecent act with a person under the age of 16 years. After a plea presented on his behalf, he was sentenced, on 6 December 2019, to a total effective sentence of 2 years and 9 months’ imprisonment with a non-parole period of 18 months.
On 19 May 2020, the applicant filed an application for leave to appeal against conviction and sentence. On the same date he also filed an application for an extension of time within which to bring that application. We have before us both applications.
The applicant was required, by ss 275 and 279 of the Criminal Procedure Act 2009, to commence each application within 28 days of sentence. The substantive application for leave to appeal against conviction and sentence has thus been commenced well out of time. It is therefore necessary to deal, first, with the application for an extension of time.
The principles, that apply to an application for an extension of time, were discussed by the High Court in Kentwell v The Queen,[1] and have been considered in a number of decisions of this Court.[2] For present purposes, they were sufficiently stated in the following passage from the judgment of this Court in Barber v The Queen:[3]
The principles, that apply to an application for an extension of time, have been stated in a number of decisions of this Court. The applicant bears the burden of persuading the Court that an extension of time should be granted in his or her favour. The Court has a wide discretion in determining whether to grant an extension of time. However, the central consideration is whether it is in the interests of justice that the application for leave to appeal be heard, notwithstanding that it has been brought outside the prescribed time. In determining that question, a number of factors are ordinarily taken into account, including the length of the delay and the reasons for it. In addition, the prospects of success of the proposed application for leave to appeal against sentence, should the extension be granted, are material. Each of those factors, and any other relevant circumstances, are taken into account in a balanced exercise of the discretion. Ordinarily, where the delay is considerable, the Court will not grant the extension, unless it is satisfied the proposed grounds are sufficiently meritorious to justify the grant of the appeal notwithstanding such delay.[4]
[1](2014) 252 CLR 601, 613–14 [30]–[32]; [2014] HCA 37 (French CJ, Hayne, Bell and Keane JJ).
[2]See, eg, Bowling v The Queen [2013] VSCA 87, [17] (Redlich JA); Jopar v The Queen (2013) 44 VR 695, 707 [59]–[60]; [2013] VSCA 83 (Priest JA); Roth v The Queen [2014] VSCA 242, [3]–[4] (Neave and Priest JJA); Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
[3][2018] VSCA 232.
[4]Ibid [3] (Kyrou and Kaye JJA) (citations omitted).
In the present case, the materials filed in support of the application for an extension of time were particularly limited. The applicant represented himself in the application, which may account for the limited nature of the materials relied on in support of it. His affidavit was entirely uninformative. In the application, the reasons for the delay, provided by the applicant, were, first, that he was self-represented, secondly, that due to his incarceration there were delays in accessing supporting legal documents and in correspondence times, and, thirdly, that the time available in prison for him to prepare the relevant legal documents was limited, particularly in light of restrictions imposed arising from the current COVID-19 pandemic.
While those limitations and difficulties might explain some of the delay by the applicant in filing the application for leave to appeal, it does not provide an adequate explanation for the significant length of the period of delay. The substantive applications for leave to appeal against conviction and sentence are based, almost entirely, on one point. Notwithstanding the difficulties confronting the applicant, and the fact that he does not have legal training, nevertheless that delay was, in all the circumstances, inordinate. We are not satisfied that the applicant has provided a sufficient explanation for the length of the delay. In those circumstances, there would not be an appropriate basis upon which to grant the applicant an extension of time, unless this Court was satisfied that the proposed grounds of appeal have sufficient prospects of success that it would be unjust to refuse to hear the application for leave to appeal. Accordingly, it is necessary to set out, in short compass, the circumstances of the offending, and the substantive grounds of appeal sought to be relied on by the applicant.
Circumstances of offending
The two offences, with which the applicant was charged, were alleged to have been committed between 1 January 2011 and 30 June 2012. The complainant, LC, was born on 17 December 2003 and, accordingly, at the time of the offences, she was between 7 and 8 years of age.
Between late 2007 and September 2010, the applicant and the complainant’s mother, KC, maintained a de facto relationship. They lived in Portland with KC’s two children, namely, the complainant LC and her older brother, RC (who was born in November 2000). In September 2010, the relationship between the applicant and KC broke down, and the applicant moved from the family home to other premises in Portland.
Contact between the applicant and LC and RC continued for some time. On frequent occasions, the two children stayed overnight at the applicant’s premises. When that occurred, LC would sleep with the applicant in his bed, and RC would sleep in another bedroom. The two offences, of which the applicant was convicted, occurred on such occasions.
In her VARE interview (which constituted her evidence in chief), LC stated that the offence, that was the subject of charge 1, occurred on an occasion on which she woke up in the morning and shook the applicant to see if he was awake. At that time, LC was wearing a nightie and underwear. The applicant woke up, picked LC up, removed her underwear, and placed her on his head. The applicant then proceeded to lick LC’s vagina and he fondled her buttocks. LC thought that the act was not right, so she got off the applicant, and got dressed.
In her evidence, LC stated that similar offending occurred on a number of other occasions. One such occasion, which was the subject of charge 2, occurred when the applicant was lying underneath LC, and LC was half lying and half standing over the applicant. At the time, LC was wearing a nightie. The incident ended when applicant rolled LC off him in response to hearing RC opening the bedroom door.
LC first revealed the offending when she spoke to a friend in 2016. She told her friend that she was scared and upset about having to tell her mother about what had occurred. Subsequently, in March 2017, LC disclosed to her mother KC the circumstances of the first incident. As a consequence, KC reported the matter to police. The applicant was arrested by police and interviewed on 21 April 2017. During his interview, he confirmed that when LC and RC spent the night at his house, LC would sleep in his bed with him, and that he and LC would cuddle in bed. He confirmed that there were occasions when he woke with LC sitting on his face, and that on those occasions she was not wearing anything on her bottom half. He denied licking or touching LC’s vagina and he said that on those occasions he went back to sleep and ‘let kids be kids’.
Proposed grounds of appeal
In the notice of application for leave to appeal against conviction and sentence, the applicant stated that he wished to apply for leave to appeal against his ‘conviction’ on two grounds, namely:
GROUND 1.A substantial miscarriage of justice resulted from falsified information presented by the Summary of Prosecution Opening for Trial being mistaken for evidence based fact by His Honour’s Reasons for Sentence.
GROUND 2.As it has been established in GROUND 1 that a substantial miscarriage of justice resulted from an oversight demonstrated by His Honour, it cannot be satisfactorily concluded that the same oversight was not also demonstrated by the Jury during their brief consideration of factors contributing to a verdict of guilty beyond reasonable doubt, and, so being, the verdict of the jury should be considered to be unsafe and unsatisfactory.
Notwithstanding that the applicant appears to only seek leave to appeal against conviction, the first ground is necessarily directed to his sentence. Each of the two grounds is directed to an aspect of the summary of prosecution opening for trial filed in the case, and a passage from the prosecutor’s opening address to the jury.
In the written summary of prosecution opening, it was stated that in the course of his record of interview, the applicant recalled an occasion when he woke to LC sitting on his face and RC was recording it, and that the applicant spoke to RC and had him delete the footage. In his opening address to the jury, the prosecutor similarly stated:
He [the applicant], during the record of interview, will tell you of an occasion where he woke with the complainant sitting on his face, and that [RC] was recording it. The [applicant] said to police that he spoke to [RC] about that and that asked him or told him to delete the recording.
That passage in the summary of prosecution opening, and in the prosecution’s opening address to the jury, was incorrect. In his record of interview, the applicant stated that on one occasion, he woke up with LC sitting on his face and RC ‘spurring her on’. He said that after he had woken up, he turned over and went back to sleep and tried to ignore what was happening. He said that he subsequently heard that RC had recorded the incident on camera. He said that he later spoke to KC about the incident, and it was KC who told him that the children had recorded what had occurred, that she had spoken to them about it, and that they had deleted the footage.
In order that ground 2 of the proposed grounds of appeal succeed, it would be necessary for the Court to conclude that the error, in the prosecution’s opening address to the jury, resulted in a substantial miscarriage of justice pursuant to s 276(1)(b) of the Criminal Procedure Act. In determining that issue, the Court would be required to consider whether the conviction of the applicant, on each of the two charges, was inevitable notwithstanding the error made by the prosecutor in his opening address. In essence, in order to determine that no such substantial miscarriage of justice occurred, the Court would need to be satisfied that the error in the prosecutor’s opening address did not make a difference to the outcome of the trial.[5]
[5]Baini v The Queen (2012) 246 CLR 469, 479–82 [26]–[33]; [2012] HCA 59 (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Andelman v The Queen (2013) 38 VR 659, 677 [85]; [2013] VSCA 25 (Maxwell P, Weinberg and Priest JJA).
In determining that question, two points are of particular importance. First, we are not persuaded that if the jury, in its deliberations, recollected the error, it could have resulted in any prejudice to the applicant’s case. Secondly, the error by the prosecutor occurred at an early stage in the trial, and was not repeated or referred to again during the trial. On the other hand, the jury was told, from the outset, that it was required to decide the case on the basis of the evidence put before it, and, in that respect, that the addresses and comments made by counsel were not part of the evidentiary material which the jury must take into account.
After the jury was empanelled, the judge, in his preliminary directions, gave a direction to the jury to that effect in plain terms. His Honour instructed the jury that it need not accept comments made by counsel during the addresses to it. He instructed the jury that it must determine the case on the basis of the evidence, which consisted of the evidence given by witnesses, exhibits tendered in the trial, and agreed facts. His Honour then stated:
So I’ve identified those three types of evidence. What’s important is that nothing else is evidence in this case, and that includes comments about the facts made by counsel or myself. It is just the testimony of the witness, agreed facts and the exhibits.
After his Honour concluded those preliminary directions, the prosecutor presented his opening address. Before the impugned passage in that address, the prosecutor reminded the jury of the direction given by the judge, that what he would be saying to the jury was not evidence, and that any comments that he (the prosecutor) made ‘are simply that’.
After the prosecutor concluded his opening address, the defence counsel, in his opening, reiterated the same point, stating to the jury:
Now, when you look at the evidence and I can tell you this, what the Crown says the evidence is going to be, and what the evidence actually is, are often very different. Your task is to make your decision on the evidence that you actually hear, not what the prosecution tells you it is going to be.
Finally, in his charge to the jury, the judge gave the orthodox direction that it was not required to accept the comments and arguments presented by counsel, and that it was the task of the jury to determine the facts based on the evidence, which consisted of the testimony of witnesses, and the exhibits.
Thus, at the time of its deliberations, the jury well understood that any comment made by the prosecutor, in his opening address, did not constitute part of the evidence on which it was to determine the guilt of the applicant on the two charges before it. The applicant’s record of interview was tendered in evidence, and the transcript of the interview was provided to the jury. If the jury had any lingering recollection of the erroneous part of the prosecutor’s opening, it would have been plainly corrected when the jury listened to the recording of the interview, and reviewed the transcript of it.
In his final address, the prosecutor did not repeat the error that he made in his opening address. Rather, the prosecutor submitted to the jury that the account, given by the applicant of the incident that was the subject of charge 2, should not be accepted. He noted that the applicant’s account was not corroborated by either RC or KC. He further contended that if the incident had occurred in the manner described by the applicant, then the applicant, and indeed KC, would not have allowed LC to continue to sleep in his bed. In advancing those submissions, the prosecutor thus accurately brought to the attention of the jury the actual content of the version given by the applicant in his record of interview.
For those reasons, we are satisfied that, if the applicant were granted an extension of time, he would not be able to establish that the error made by the prosecutor in his opening address resulted in a substantial miscarriage of justice.
That conclusion is reinforced by an appreciation of the strength of the prosecution case. In particular, in his record of interview, the applicant gave substantial support to the prosecution case. He confirmed that when LC and RC stayed overnight at his home, LC would sleep in the same bed as him. He said there were occasions when he would wake up in situations in which they were in physically inappropriate positions. He said that on one occasion (before he broke up with KC), while they were together on a family holiday at Nora Creina, he woke up with LC sitting on his face and RC spurring her on. He said that he subsequently learned that RC had recorded the incident on his camera. He said that after he had woken up, he ‘turned over and went to sleep and tried to ignore it’. On that occasion, he said that LC’s vagina was on his face. He simply tried to get back to sleep and ‘let kids be kids and their silly nonsense stuff’. He claimed that in his experience children of that age were ‘curious about that sort of thing’.
In answer to further questions, the applicant stated that there were occasions that he woke up and LC was kneeling near his face. He said that on those occasions, her vagina had been in contact with his face. He also said that he used to do ‘raspberries’ on LC’s legs and stomach, when they were ‘fooling around’. Finally, in answer to further questions, the applicant stated that he enjoyed oral sex. When asked if he was sexually attracted to children, he quoted ‘no, no’, but then added that ‘I’m attracted to females but no, the line’s being blurred more and more as we get on …’.
Thus, in short, the error made by the prosecutor in his opening address was not repeated. The jury was instructed, in clear terms, that the contents of addresses of counsel did not constitute part of the evidentiary material on which it must decide the case. The prosecution case against the applicant was strong, and gained material support from admissions made by the applicant in his record of interview. In those circumstances, the prospects of success of the applicant, on ground 2 of the application for leave to appeal, would, at best, be weak.
The proposed ground 1 of the application for leave to appeal is also without merit. In his reasons for sentence, the judge summarised the contents of the applicant’s interview with the police. In doing so, he repeated the error made by the prosecutor in his opening address. However, it is clear that the judge did not take that matter into account as an aggravating circumstance of the offending. The sentences imposed by the judge, and the total effective sentence, were relatively lenient, taking into account the gravity of the offending. In those circumstances, the applicant’s prospects of success on an application for leave to appeal against sentence would, at best, be very limited.
Summary of conclusions
In summary, the delay by the applicant in filing an application for leave to appeal against conviction and sentence was substantial. The applicant has not advanced a sufficient explanation for the length of that delay. The proposed grounds, on which the applicant would seek to rely in support of his application for leave to appeal against conviction and sentence, are lacking merit. If an extension of time were granted, the application for leave to appeal would fail. Taking those matters into account, the applicant has failed to establish an appropriate basis upon which this Court should grant the application to extend time within which the applicant might seek leave to appeal against conviction and sentence.
It follows that the application for an extension of time must be refused.
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