Kelly v Director of Public Prosecutions (ACT)
[2015] ACTCA 55
•30 October 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Kelly v Director of Public Prosecutions (ACT) |
Citation: | [2015] ACTCA 55 |
Hearing Dates: | 16 September 2015 |
DecisionDate: | 30 October 2015 |
Before: | Refshauge ACJ |
Decision: | The application for leave to appeal be dismissed. |
Catchwords: | APPEAL – Jurisdiction, practice and procedure – criminal trial – leave to appeal out of time – appeal against conviction – appeal against sentence – substantial delay in lodging appeal – explanation for delay – strongly arguable appeal case needed to justify an extension of time – grounds of appeal – retirement of a juror – multiplicity of charges – unsafe and unsound verdict – sentence manifestly excessive |
Legislation Cited: | Supreme Court Act 1933 (ACT), s 37J Court Procedures Rules 2005 (ACT), rr 5311, 5402, 5405, 5510, Sub-Div 5.4.7.2 |
Cases Cited: | Bardsley v The Queen (2004) 29 WAR 338 Cameron v The Queen (2004) 142 A Crim R 424 |
Parties: | James Stanley Kelly (Applicant) Director of Public Prosecutions (ACT) (Respondent) |
Representation: | Counsel In person (via video-link) (Applicant) Mr J Hiscox (Respondent) |
| Solicitors Self-represented (via video-link) (Applicant) Director of Public Prosecutions (ACT) (Respondent) | |
File Number(s): | ACTCA 28 of 2015 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Burns J and a Jury of Twelve Date of Decision: 5 February, 2 May 2014 Case Title: R v Kelly Court File Number: SCC 64B of 2012 |
REFSHAUGE ACJ:
Following the execution of a search warrant on 25 October 2011 at the home of James Stanley Kelly, the applicant, Mr Kelly was charged with various offences, including three counts of possessing child pornography.
After committal of the charges laid against Mr Kelly, the Supreme Court ordered that the indictment be severed and the child pornography charges tried separately from other charges laid against him.
The child pornography charges proceeded to trial and on 5 February 2014 the jury returned verdicts of guilty on each of the three counts.
On 2 May 2014, Mr Kelly was sentenced to nine months imprisonment commencing on 10 April 2015 and expiring on 9 January 2016.
On 31 August 2015, Mr Kelly lodged an application for leave to appeal out of time.
As required by r 5311 of the Court Procedures Rules 2005 (ACT), his application was accompanied by an affidavit and a draft notice of appeal. The draft notice of appeal referred only to an appeal from the sentences imposed but the affidavit annexed a document which is said to have set out the draft grounds of appeal and some of those grounds made it clear that Mr Kelly was appealing against conviction also. At the hearing of his application, that was confirmed.
Applications for Leave to Appeal out of Time
Under r 5402 of the Court Procedures Rules, an appeal is started by filing a notice of appeal and, under r 5405, the notice of appeal must be filed no later than twenty-eight days after the day the order appealed from was made.
Accordingly, Mr Kelly’s application for leave to appeal out of time has been filed, in the case of the conviction, over eighteen months after the date on which the conviction was entered and, in the case of the sentences, over fifteen months after that date.
Initially, Mr Kelly applied in accordance with the special provisions set out in Sub-Div 5.4.7.2 of the Court Procedures Rules. I have described this procedure in Merrilees v The Queen [2014] ACTCA 10 at [8]-[14].
No doubt because of the long delay, the application was refused.
Under r 5510 of the Court Procedures Rules, Mr Kelly may, and he did, apply to the Court for the application to be decided by this Court.
Under s 37J of the Supreme Court Act 1933 (ACT), the application is decided by a single judge.
In R v Meyboom (2012) 256 FLR 450, I set out the approach that the Court should take in considering whether to grant leave to appeal out of time.
That approach may be summarised as follows:
1. Time limits are important and must, prima facie, be obeyed.
2. In order to justify a court acceding to an application to extend time, there must be some material on which the court can exercise its discretion.
3. Such an application should only be granted if, having regard to the important value of finality in litigation and the need for time limits to be respected, it is proper to do so.
4. There should be an explanation for the delay, and as to any action (other than to appeal) that has been taken by the applicant which is relevant.
5. The court must consider any prejudice to the respondent in defending the proceedings as caused by the delay and any such prejudice will tell against the extension.
6. The mere absence of prejudice is not enough to justify the extension of time.
7. The merits of the appeal itself must be taken into account in deciding whether an extension of time should be granted.
8. The court, on considering an application for an extension of time within which to appeal, should not decide the appeal and, in an appropriate circumstance, an arguable case may be sufficient, though in the case of long delay it may be necessary to show that the applicant has a strong case.
9. Nevertheless, the application is to be determined by the court’s view of the demands of justice in accordance with broad judicial discretion and not by the mere application of the verbal formula.
10. In particular, the court will look, above all else, to determine whether there has not been and will not be, if the application is refused, a miscarriage of justice which will always be an overriding consideration.
These are the principles that I shall apply.
Delay
As noted above, the delay is very substantial.
In Cameron v The Queen (2004) 142 A Crim R 424, McKechnie J, with whom Steytler J and Wallwork AJ agreed, said at 429; [28]:
If there has been a long and unexplained delay exceptional circumstances must be shown before an extension of time will be granted unless it can be demonstrated that there will be a miscarriage of justice if an extension is not granted. Relevant to the question of the miscarriage of justice is the fact that the delay is insufficiently explained and in part unexplained.
In Bardsley v The Queen (2004) 29 WAR 338 at 355-9; [97]-[114], Wheeler J analysed the authorities in South Australia and Western Australia on the issue of an extension of time where there has been a lengthy delay and concluded at 359; [114]:
It is my view that both principle and authority in this State suggest that the Court may require more to be demonstrated than that an appeal ground will be successful, before time is extended [where there has been an extensive and unexplained delay.
Although her Honour was in dissent on the outcome of the application for an extension of time in that case, McKechnie J in Evans v Pelka [2005] WASC 240 at [16], expressed the view that there was much to commend her Honour’s reasoning, supported as it was by the decision in R v McDonald [2000] WASCA 336.
It appears, however, that the South Australian position is somewhat less stringent. See R v BFB [2003] SASC 338 at [23].
In this case, however, it seems to me that the substantial delay must be explained and, at least, a strongly arguable case on the appeal must be shown in order to justify a conclusion that a miscarriage of justice may have occurred justifying the extension of time.
On 15 April 2014, Murrell CJ convicted Mr Kelly of five of the other offences with which he had been charged. By notice of appeal dated 6 May 2014, he appealed against those convictions.
Burns J had sentenced Mr Kelly on 2 May 2014 for the three counts of possessing child pornography of which he had been found guilty by the jury on 5 February 2014. This was just four days before he lodged his Notice of Appeal from the convictions entered by Murrell CJ.
Mr Kelly said that his legal representatives did not tell him that he could lodge an appeal against the convictions entered by Burns J on the child pornography charges.
When it was pointed out to him that he had appealed against the convictions imposed by Murrell CJ, he then said that his solicitor argued with his barrister “to lodge an appeal” but that his barrister “refused to lodge an appeal”.
He also said that his solicitor told him that he could not lodge an appeal against the convictions on the pornography charges. He said that this was because “it was past the date”.
This is very difficult to understand. The draft notice of appeal, as I pointed out above (at [6]), is a notice of appeal against sentence. A sentence was imposed on 2 May 2014 and his notice of appeal against the convictions entered by Murrell CJ was lodged on 6 May 2015.
At the time Mr Kelly appealed against the convictions entered by Murrell CJ, Mr Kelly was well within time to appeal against the sentences imposed by Burns J as his notice of appeal purports to do.
It is always difficult to assess evidence when it is merely assertions given from the Bar table, especially by litigants in person.
This is especially so when the assertions relate to advice said to be given or actions said to taken by the litigant’s former legal representatives. It will often be difficult to assess the credibility of such assertions or determine from those assertions what had actually been given by way of advice or done by way of action.
On the one hand, the court will rarely have the version of events that the legal practitioner might give. That is not always easy to obtain, especially for people, such as Mr Kelly, who are in custody.
On the other hand, the actual terms of the advice might be critical to a determination of whether a litigant has sat on his or her rights, has been misled or has simply re-interpreted the advice in an attempt to support his or her application to the court. This is especially so when the advice said to have been given seems unlikely to have been given by even a moderately competent lawyer or is advise that is manifestly wrong.
It must be accepted that not all lawyers give accurate or adequate advice or give that advice in a way that a client can or does understand clearly. It should, however, not be too readily assumed that such inaccurate, inadequate or too easily misunderstood advice has been given merely because that is asserted. The actual circumstances needs to be carefully considered in each case.
In this case, I have to say that it would be extremely surprising if the solicitor who had assisted him to appeal against the convictions entered by Murrell CJ had provided advice that Mr Kelly could not appeal against the sentences imposed by Burns J (which he also wished to do) when they had only been imposed four days prior to the lodging of the notice of appeal.
It is also difficult to accept that a solicitor would not have advised Mr Kelly that he could apply to appeal out of time against the convictions for the child pornography charges entered on 5 February 2014, which, at 2 May 2014, was less than 3 months out of time.
The solicitor may, of course, have warned Mr Kelly that the delay might prove fatal to such an application, which may have deterred him from making the application, but this would not be a good explanation.
In the circumstances, it is not possible to accept Mr Kelly’s explanation for the delay in making application for leave to appeal in the way he has put it and, in my view, the very substantial delay is entirely unexplained.
While that does not prevent Mr Kelly from obtaining an extension of time within which to appeal, it is clear, in my view, that there needs to be a very clear case of a miscarriage of justice to justify an extension of time after such an extensive delay. That depends on the strength of the likely success of the proposed appeal.
Possible grounds of appeal
Mr Kelly raised a number of issues which he said suggested that he had reasonable prospects of success on an appeal. I shall, to the extent I understand the points he has made, deal with them separately.
(a) Retirement of juror
On the second day of the trial, one of the jurors indicated that there is a reason why she may not be able to continue with the trial.
She was asked to give evidence in court, in the absence of the jury, of her reason and her evidence was recorded but not transcribed. I heard the actual evidence given. I summarise it as follows.
After the trial she went to her local shopping centre to do some grocery shopping. She saw members of Mr Kelly’s family at the store and realised that she knew the family as they lived close by. She also knew them through acquaintances.
While she did not have any direct friendship with the Kellys, she felt that she should not continue as a juror.
She said, on oath, that she had not spoken to any of the other jurors about her knowledge of or her connection with Mr Kelly or his family. In any event, the evidence she gave did not indicate that she knew anything that was directly or indirectly relevant to the facts in issue in the trial. None of the evidence that the juror gave was challenged or controverted.
Indeed, Mr Kelly’s counsel indicated that he did not wish to be heard in respect of the trial proceeding with eleven jurors.
Mr Kelly submitted that “there should have been a new jury picked as there may have been contamination and/or possible collusion”.
There is no sound basis for such a submission and, indeed, the oral evidence that I heard from the playing of the evidence of the juror shows that, even if the juror had mentioned something to the jury, it could not have affected the outcome. Mr Kelly did not indicate any knowledge that the juror might have had about him or the facts of the alleged offences that could have been made known to the jury and contaminated their views, knowledge or deliberation.
The High Court has set out in Crofts v The Queen (1996) 186 CLR 427 at 440-1 the principles to be applied when considering whether a jury should be discharged. Having regard to what is there said, there was no basis in this case to discharge the jury.
It is also to be borne in mind, that, as stated by Gibbs ACJ in Maric v The Queen (1978) 52 ALJR 631 at 634-5, that the appeal Mr Kelly would mount on this ground would be, not against the failure to discharge the jury (although the appellate court would have to examine the reasons given by the trial judge to make sure that the correct principles were kept in mind: Crosswell v Tasmania [2015] TASCCA 14 at [13]) but to determine whether, in order to secure a fair trial it was necessary to discharge the jury. See also R v Glennon (1992) 173 CLR 592.
There was no basis, other than complete speculation, to suggest any impropriety as a result of the discharged juror’s recognition of the Kelly family or to suggest that her knowledge was prejudicial to Mr Kelly and that there was any likelihood of unfairness in the trial.
There is no arguable basis for this ground of appeal.
(b) Multiplicity of charges
Although not referred to in his affidavit, Mr Kelly submitted orally to me that the charges he had been facing were multiplied because his counsel suggested that they should not be encompassed in one charge but in three charges. I have some difficulty in understanding procedurally how this situation could have come about.
I accept that sometimes a single charge can encompass a number of acts that could otherwise constitute separate offences. There is, so far as I am aware, no principle that requires the prosecution to lay only a single charge instead of multiple charges in any particular case. It is a matter for the prosecution to select the charge or charges. The choice of charge is one of the important prosecutorial discretions.
The courts will not interfere with the prosecutor’s discretion unless there can be a collateral attack on its lawfulness or its exercise involves an abuse of process. See Thompson v Judge Byrne (1999) 196 CLR 141 at 151.
Mr Kelly did not elaborate on this ground and I can see no basis for it.
Indeed, the fact of the concurrency of the sentences imposed for the three offences shows that, even if there were to have been error, there has been no prejudice to Mr Kelly. On the other hand, that there was a separate charge for each item of child pornography found on his computer is appropriate.
There is no substance in this ground of appeal.
(c) Unsafe and unsatisfactory verdict
Much of Mr Kelly’s complaint was that the case was circumstantial and that there was no direct evidence of various aspects of the Crown case and, in particular, he was critical of the absence of photographs of where certain items were found during the execution of the search warrant.
It needs to be said at the outset that a circumstantial case is not necessarily a weak case. Indeed, many circumstantial cases are very strong. To describe a case as circumstantial is not to say that it is likely to be overturned on appeal.
It was clear that the real issue at the trial was whether Mr Kelly intentionally possessed the images that were found. There was no issue as to the lawfulness of the search conducted by the police nor that images were found on devices in Mr Kelly’s premises nor that those images were child pornography.
The case Mr Kelly put at trial was that he did not know of the presence of the images found on his computer.
It is appropriate to deal briefly with each count on the indictment separately.
The first count related to images of child pornography found on a DVD located in Mr Kelly’s bedroom in the cavity of the chest of drawers within his built-in wardrobe.
Mr Kelly suggested that because there was no photograph of the finding by police of the DVD in situ, the finding of guilt should be overturned on appeal. He did not understand that the oral evidence of Detective Leading Senior Constable Ashley Laidler and Detective Senior Constable Tracy Darragh was, in itself, evidence of just this matter and on which the jury were entitled to rely.
Constable Laidler gave evidence of finding some material in a set of drawers and continued
I removed that bottom drawer, and in the cavity between the floor and the bottom of the drawer I found six DVD’s.
One of those DVD’s was entitled ‘Pics software stuff’ and that contained child pornography.
It was not suggested to Constable Laidler in cross-examination at the trial that the DVDs were not found as he had said in his evidence. Indeed, Mr Kelly did not suggest in argument to me that the DVDs had not been found by police or found where the police officer said they had been found.
Constables Laidler and Darragh gave evidence that their search showed to them that only one person lived in the room; Constable Laidler said that to him it “[j]ust appeared to be the clothes of one person, like, a male person, and it didn’t appear that there was a sort of woman’s products, woman’s clothing in the bedroom” and Detective Darragh said
There were two sections of wardrobes in the room. I searched the built-in robe in the room and there weren’t particularly a lot of clothes in there. All the clothes were men’s clothes and there was also quite a bit of electronic equipment, videos and CD’s. There was a TV and a VCR and those sort of things. So it just didn’t seem like there was enough belongings in there to be more than one person.
The other DVDs included family photographs and home-made pornography and, in his evidence, Mr Kelly admitted that this was where he stored his pornography, saying “the best place to put [his personal and pornographic videos] and the safest place was we had a cavity underneath the drawer”.
The DVD was made or belonged to someone who knew or had an interest in computers and the evidence was that Mr Kelly had such an interest.
In the light of this evidence, the absence of a photograph of the finding of the DVDs (which, in an ideal world, may have been desirable) did not undermine the strength of the evidence in support of this count. It was a matter for the jury whether they accepted this evidence and there was no counter-vailing evidence or inherent weakness in the evidence given that could raise the ground that the verdict on this count was unsafe or unsatisfactory.
The other counts related to images located on two hard drives. One was not connected to a computer at the time it was seized by police and the other was attached to a computer in the lounge room of the premises.
The evidence was that Mr Kelly used the computers in the lounge room. In each case, the child pornography was located in a particular location on the hard drive.
The location of the child pornography, the subject of count two, was in a folder called “Porn” which included another folder called “Jim’s pics” and were in a directory similar to the directory located on the DVD the subject of count one.
The evidence was that, where the images were located, they had been saved in “a very deliberate spot”. The pornography was in fact found in a sub-folder of the folder “Porn” in the hard drive. The Crown submitted it was “a very deliberate saving”.
Mr Kelly submitted that the evidence of the forensic expert was that it was not possible to say who downloaded any of the relevant computer files and that a file that has been downloaded has not necessarily been opened. That was evidence given by the forensic expert, but it was only a small part of his evidence and he gave comprehensive evidence of the location of the files, their names, contiguous files, the computer set-up and the like. It is not possible to isolate a small portion of his evidence to show that it was, in itself, proof of such uncertainty that the convictions were unsafe and unsatisfactory.
The same situation related to the child pornography the subject of count three, found on a hard drive which was attached to a computer in the lounge room. Again, the images were saved to a particular location which required a particular pathway to access. The images were saved under the pathway of “Jim”, evidence that they belonged to Mr Kelly.
It is clear that there was evidence available on which the jury could properly find that the counts were made out.
Mr Kelly submitted that there was insufficient evidence but provided no real basis for that submission other than the assertion itself and the isolation of small parts of the evidence which had to be seen in the context of the evidence as a whole.
Mr Kelly did not dispute that the hard drives were his. He submitted that the reference to “Jim” was “a generic set up name which was used on setting up the computers”.
Mr Kelly referred to evidence of the digital forensic examiner, Mr Brian Coe, who agreed that
If a person when the computer is initially set up puts in their name, for example, Jim, as being the person owns [sic] or is operating the computer, at least at that time, then at least in some circumstances a folder entitled, in this example, Jim, will also be created.
He also agreed that that did not mean that other people could not use that computer.
Mr Kelly’s daughter gave evidence. Her evidence included the fact that she and two of her siblings were living at the home and her older sister was “kind of living there”. She said they all had desktop computers at one stage but all had new laptops later. When they had finished using the laptops they were just put in the lounge room and her father was “just getting all the stuff off them”.
Her evidence was that she sometimes used her father’s laptop and that her brother and sisters used “like whatever computer was free, except for dad’s”.
She was also aware that friends of her younger sister would use the computer in the house and would also use computers in her brother’s room or her father’s room when he was not at home. Some of the material they looked at was pornographic material.
She also stated that, when her father was on the computer there was a hard drive attached to the computer but that her father would usually take it off when he was not using the computer.
It seems to me that the jury had all the relevant evidence and, of course, saw the witnesses give their evidence. That the pornographic material could possibly have been placed there by someone other than Mr Kelly was a matter to which the jury would have regard. It was clearly an issue raised in the trial. It is a matter for the jury to weigh the evidence which was before them.
This was important because Mr Kelly also relied on an inconsistency. Detective Laidler said that he had seized one of the hard drives and delivered it to the property officer, Constable Howie. Mr Coe also said, apparently inconsistently, that he had seized the computer and delivered it to Constable Howie. This inconsistency, however, was not such as to undermine the credibility of either witness, particularly as the issues to which their evidence went were, relevantly, not challenged.
There was no question, for example, but that the hard drives that were seized were seized and that they were seized from Mr Kelly’s premises. Given that the items were seized about two and a half years prior to the trial, it is not entirely surprising that there may be some discrepancies in matters such as this. The inconsistency on this issue did not undermine the evidence of these officers nor the evidence of what was found on the hard drives.
Having carefully considered Mr Kelly’s challenges, I am not satisfied that they provide a sound basis for saying that there is an arguable ground of appeal that the convictions were unsafe and unsatisfactory.
Mr Kelly made some disparaging comments about his legal representation. It was clear that his counsel had no special knowledge about computers. His cross-examination appeared adequate and, indeed, adduced some of the evidence on which Mr Kelly sought to rely in this application referred to above (at [75]). I expressly questioned Mr Kelly as to whether he was seeking to challenge the competence of counsel on the proposed appeal and he expressly said he was not.
These appeared to be all the challenges Mr Kelly made to the convictions.
(d) Sentence
As noted above (at [4]), Mr Kelly was sentenced on 2 May 2014 to a total of nine months imprisonment. The sentences on counts two and three were concurrent with the sentence on count one.
At the time of sentencing, Mr Kelly had been sentenced to imprisonment for six acts of indecency with a young person. He was sentenced to a total period of imprisonment for four years from 10 August 2012 to 9 August 2016 with a non-parole period of two years and six months.
As a result, the sentence of Burns J was wholly concurrent with the earlier sentence. His Honour did, however, re-set the non-parole period, as his Honour was required to do. He imposed a non-parole period to expire on 9 May 2015, effectively extending the non-parole period by three months.
In the circumstances, there is no basis for suggesting that such a sentence was manifestly excessive.
Conclusion
I have carefully considered all the grounds raised by Mr Kelly.
In my view, he has not adequately explained the substantial delay in his application for leave to appeal out of time. Further, the proposed grounds of appeal are not such as to suggest there are strong prospects of success, probably required when there is such a substantial delay.
Indeed, I am not satisfied that there are arguable grounds of appeal other than, in effect, emphatic assertions by Mr Kelly that he should not have been convicted. While this is understandable, it is not a basis on which a court can properly exercise the discretion to extend the time for appealing in such circumstances.
Accordingly, the application must be dismissed.
| I certify that the preceding ninety-nine [99] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Refshauge. Associate: Date: 30 October 2015 |
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