Jamie Holyoake v The Queen - [2021] VSCA 10

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jamie Holyoake v The Queen

Details

AGLC: Jamie Holyoake v The Queen [2021] VSCA 10
Case: [2021] VSCA 10
Decision Date: 5 February 2021

CaseChat Overview and Summary

Jamie Holyoake has appealed against his conviction and sentence in the Court of Appeal. He was convicted of two charges of committing an indecent act with a child under 16 years. He was sentenced to a total effective term of imprisonment of two years and nine months, with a non-parole period of 18 months. The appeal focuses on the procedural aspect of seeking an extension of time to lodge an application for leave to appeal against the conviction and sentence.

The primary legal issue before the court was whether the applicant was entitled to an extension of time to file his application for leave to appeal, given the significant delay. The court also considered whether a miscarriage of justice had occurred due to a factual error in the prosecution's opening statement and reasons for the sentence. Furthermore, the court examined the applicant's explanation for the delay and whether there was merit in the proposed grounds of appeal.

The court held that the applicant's explanation for the delay was unsatisfactory and there was no merit in the proposed grounds of appeal. The court found that the applicant had not demonstrated that a miscarriage of justice had occurred due to the alleged factual error. The court concluded that the applicant had not satisfied the criteria for an extension of time under the Criminal Procedure Act 2009. The court applied the decision in Barber v The Queen [2018] VSCA 232 and dismissed the application for an extension of time.

The court ordered that the application for an extension of time to file an application for leave to appeal be refused. The appeal against the conviction and sentence was dismissed.

Orders