Keshtiar v The Queen

[2011] VSCA 122

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2007 0848 

MOHAMMED AKBAR KESHTIAR
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and HARPER JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 May 2011
DATE OF JUDGMENT:	2 May 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 122

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Criminal law – Practice and Procedure – Previous application for leave to appeal against conviction abandoned – Whether application to withdraw notice of abandonment and reinstate appeal – Basis upon which court may permit withdrawal of notice of abandonment - Application for grant of leave to extend time within which notice of application for leave to appeal against conviction may be given refused by Acting Registrar – Determination of application by Court of Appeal – Application founded, at outset, on allegedly fresh evidence – New and different grounds relied upon in Court of Appeal - seven and a half years after verdicts – Applicable statutory regime - R v Davis (2003) 6 VR 538 - Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Valos Black & Associates
For the Crown	Mr J D McArdle, QC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

1. On 22 September 2003, Mohammed Keshtiar (conveniently, ‘the applicant’), a man now aged 41, was found guilty after trial in the County Court on counts of common assault (Count 1) and intentionally causing serious injury (Count 4).  The events leading to these convictions occurred on the night of 28-29 May 2000.  He thereafter pleaded guilty to a drugs offence on a second presentment.  On 18 December 2003 he was sentenced to three months' imprisonment on Count 1 and to seven years and four months' imprisonment on Count 4.  On the drugs count, he was sentenced to be imprisoned for three months, two months of which was cumulated on the sentence on the first presentment.  The total effective sentence was thus seven years and six months' imprisonment.  The judge fixed a non‑parole period of five years' imprisonment.

1. The applicant sought leave to appeal against conviction and sentence by notices dated 23 December 2003.  The grounds of the conviction application were:

(1)the learned trial judge erred in the exercise of her discretion to exclude the evidence of the witness Peter Ross;  and

(2)the verdicts of the jury are unreasonable and cannot be supported having regard to the evidence and, as a consequence, there has been a substantial miscarriage of justice.

1. The grounds did not identify the conviction(s) which the applicant sought to attack.  But clearly, having regard to a later outline of submissions, it was his conviction on the count of intentionally causing serious injury, a conviction which arose out of the shooting of a security guard in a suburban nightclub.

1. Subsequent to the County Court trial, the applicant was found guilty, after trial in the Supreme Court, on two counts of attempted murder.  The offences were committed on 18 January 2003 and the victims were his girlfriend and a male friend, each of…