Knight v The Queen
[2011] VSCA 138
•20 May 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2008 0829
| PETER JAMES KNIGHT |
| v |
| THE QUEEN |
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| JUDGES | NEAVE, MANDIE and TATE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 11 March 2011 |
| DATE OF JUDGMENT | 20 May 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 138 |
| JUDGMENT APPEALED FROM | R v Peter James Knight [2002] VSC 498 (Teague J) |
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CRIMINAL LAW – Procedure – Extension of time to lodge notice of application for leave to appeal against sentence – Applicant sentenced in November 2002 for the murder of a security guard at an abortion clinic – Sentenced to life imprisonment with a non-parole period of 23 years – Applicant did not seek to appeal against sentence until September 2008 – Whether the considerable extension of time sought by the applicant was justified having regard to the merits of the proposed appeal – R v O’Keefe [1979] VR 1, applied – Application refused.
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| Appearances: | Counsel | Solicitors |
The Applicant in person | ||
| For the Crown | Mr S M Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA
MANDIE JA
TATE JJA:
This was an application by Peter James Knight (‘the applicant’) for an extension of time within which to lodge a notice of application for leave to appeal against sentence.
Background to the application
On 23 April 2002, a Supreme Court jury found the applicant guilty of the murder of a security guard, Steven Rogers, at an abortion clinic in East Melbourne. On 19 November 2002, Teague J sentenced the applicant to life imprisonment with a non-parole period of 23 years. In his reasons for sentence, Teague J said:[1]
The murder of Steven Rogers was a very serious crime. It is to be treated the more seriously because of the context in which you carried out the murder. You were a loner on a personal crusade when you went to the clinic. Your crusade was to effect social change. Steven Rogers was just doing his duty. He got in the way of your crusade. He was one of those who was characterised by you as being in ‘the abortion racket’. … You went to the clinic with a plan for a massacre. You made Steven Rogers pay the supreme sacrifice because he got in the way.
[1]R v Knight [2002] VSC 498, [16].
The applicant was not represented by counsel at the trial, on the hearing of the plea in mitigation of sentence, nor at the hearing of the instant application.
Pursuant to s 572 of the Crimes Act 1958, which governs the proposed appeal, the applicant had 14 days following sentence within which to lodge his notice of application for leave to appeal against sentence. Section 572 empowers this Court to grant an extension of time beyond the stipulated 14 days in which an application for leave to appeal can be made.
The applicant waited until 23 September 2008 (almost six years after being sentenced) before lodging the instant application. The application was initially refused by a Registrar of the Court on 3 November 2008; thereupon the applicant asserted his right under s 582A(2) of the Crimes Act to have the application determined by the Court of Appeal. The applicant filed his full statement of grounds on 8 October 2010.
The applicant had previously applied for an extension of time within which to lodge a notice of his application for leave to appeal his conviction, but this was refused on 25 March 2004 by the Court of Appeal (Batt JA, Smith and O’Bryan AJJA).[2]
[2]R v Knight [2004] VSCA 48.
Applicable principles
Batt JA, in giving the reasons on behalf of the Court for refusing the applicant’s application to extend time to lodge a notice of application for leave to appeal his conviction, observed that an application for an extension of time is an application seeking ‘a discretionary indulgence’.[3] The principles which govern the exercise of that discretion were set out in the judgment of the Full Court in R v O’Keefe[4] (adopting what had been said in R v Darby):[5]
[3]Ibid [12].
[4][1979] VR 1, 5 (McInerney, Menhennitt, and McGarvie JJ).
[5](Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Gowans, Lush and Crockett JJ, 2 May 1975).
(1) the prescription by the statute of the time limit for giving notice is intended to secure finality and compliance is intended to be required in the ordinary case;
(2) extension of the time is a matter for the discretion of the Court, and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension;
(3) rigid restrictions cannot be imposed on the exercise of discretion but in general the Court will require special and substantial reasons for extending the time;
(4) the longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be;
(5) it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;
(6) a reasonably satisfactory account of the failure to comply with the statutory requirement needs to be forthcoming.
This formulation of the relevant principles was most recently approved of by the Court of Appeal in R v Croft.[6]
[6][2008] VSCA 61 (Redlich, Kellam JJA and Osborn AJA), [10].
As Batt JA observed:[7]
The principles [governing an application for an extension of time] … it should be noted … having regard to the reason for the prescription of time for applying for leave to appeal and the shortness of the time prescribed, … are fairly stringent. In general, special and substantial reasons are required. The ultimate question is whether justice requires the grant of an extension.
[7]R v Knight [2004] VSCA 48, [12].
The basis of the application for an extension of time
In the instant application, the applicant explained that his delay was due to his ignorance of the law, in particular that he was unaware until shortly before making this application that a prisoner could appeal against sentence. He contended that previously he was aware only of a prisoner’s right to appeal against conviction.
The Crown opposed the application for an extension of time. In argument, the Crown submitted that the applicant’s explanation that he was unaware of his right to appeal was not credible, particularly having regard to the applicant’s previous unsuccessful attempt to appeal his conviction. Counsel for the Crown also submitted that it was incumbent upon an unrepresented prisoner to take reasonable steps to enquire into his rights of appeal.
It is unnecessary to decide, in the circumstances of this application, whether the submission of the Crown is correct or whether the applicant’s explanation is credible and sufficient. Rather, the focus in this application is on whether the considerable extension the applicant has sought (a period of almost six years) is justified because the Court is satisfied that there are such merits in the proposed appeal that it would probably succeed.
The applicant outlined in his written submissions, filed 11 October 2010, four proposed grounds of appeal against sentence. Succinctly put they are: (1) that the sentencing judge failed to assess properly the applicant’s true degree of culpability and responsibility for the offence, something he was required to do by reason of s 5(2)(d) of the Sentencing Act 1991; (2) that the sentencing judge took into account an irrelevant consideration by sentencing the applicant in the context of him having ‘planned a massacre of many’;[8] (3) that the sentencing judge failed to take into account the applicant’s true character; and (4) that the applicant was sentenced for having committed an intentional murder when the evidence establishes that he committed a non-deliberate homicide. In the applicant’s draft notice of application for leave to appeal against sentence and in the application for an extension of time, both filed 23 September 2008, there appears the additional ground: (5) that the sentencing judge made an incorrect assessment of the danger the applicant posed to the community. Each proposed ground is said to have caused the sentencing judge to impose an excessive sentence.
[8]R v Knight [2002] VSC 498, [23].
A further additional ground was relied upon in a submission filed by the applicant on 18 March 2011, after the hearing of the application. We shall describe this as Ground 6, the ‘different elements’ ground, namely:
The first is – what was the juror’s reaction to what the prosecutor said in his opening address about the elements. The second element in particular, which he described very differently to the judge? The second question is – of the two different sets of elements the judge himself issued: those in the opening directions and those he gave in his final address at the end of the trial. Which did the jurors take notice of?
These two questions were submitted to be an elaboration of the point made at the hearing of the application:
And since he (Judge Teague) was incapable of reading the jurors minds, and therefore could not ascertain what elements they had me convicted of. Then he had not the slightest right to sentence me on anything other than the elements he had me trialled on.
With respect to the first proposed ground of appeal, it is apparent from the detailed reasons for sentence that the sentencing judge appropriately assessed the applicant’s degree of culpability and responsibility for the offence. The sentencing judge took into account the well-planned nature of the crime,[9] the fact the applicant was ‘a loner on a personal crusade’[10] and the applicant’s borderline delusional disorder[11] in considering the applicant’s responsibility for the offending and his moral culpability. The complaint that the sentencing judge did not assess the applicant’s true degree of responsibility and culpability is without merit.
[9]Ibid [10]-[13].
[10]Ibid [16].
[11]Ibid [20].
As for the second proposed ground of appeal, the sentencing judge’s observation that the applicant had ‘planned a massacre’[12] was supported by the evidence, reflected the jury’s verdict and was directly relevant to the exercise of his discretion; it was clearly a factor which substantially aggravated the circumstances of the offending and the criminal and moral culpability of the applicant. This ground of appeal has no prospects of success.
[12]Ibid [23].
The third proposed ground of appeal can be met by the response that the sentencing judge considered the evidence of the three psychiatrists and set out in detail the personal circumstances of the applicant.[13] The charge that the sentencing judge failed to take into account the applicant’s true character is without merit.
[13]Ibid [18]-[20].
The applicant expanded upon the fourth proposed ground of appeal at the hearing of the application. In argument it became clear that the applicant’s principal complaint based upon this ground was that the trial was conducted on the basis of an explanation to the jury that the offence of murder of which the applicant had been charged contained a number of elements, and that sometimes the jury were told that the applicant was charged with having committed a deliberate homicide and at other times not. In particular, the applicant submitted that at times the jury were told that the offence with which the applicant was charged involved a deliberate killing and at other times they were not told that deliberateness was a requirement for murder.
The sixth ground appeared to draw upon the fourth by arguing that, if the directions given to the jury varied at different times as to the elements of the offence of murder, it would be impossible to tell what understanding the jury had when it delivered its verdict. It would this be impossible for the sentencing judge to know on which basis he should sentence the applicant.
The Crown argued that such a ground is more suited to an appeal against conviction, namely that the jury were wrongly directed as to the elements of murder or were given inconsistent and varying directions on those elements.
In a further submission filed by the applicant with the Court on or about 6 April 2011 the applicant sought to resist this argument from the Crown and insisted that the leave he sought related only to his sentence and not to his conviction while reiterating the concern he raised concerning the judge’s directions to the jury on the elements of the offence of murder. He said:
I was trialled on elements which do not constitute a crime. It has been said to me that because of that I have grounds to appeal against conviction. Whether that is the case or not it is my prerogative to decide what I make my appeal against. It is not anyone else’s prerogative or right to make that decision. And since I have clear and arguable reasons to appeal against sentence. The sentence is what this appeal is against, and nothing else besides.
We find the Crown’s submission on this point convincing. The applicant’s complaint that he was tried on elements which do not constitute a crime is clearly a complaint directed at his conviction. So too the applicant’s complaint that there was a discrepancy between the directions given at various times to the jury on the elements of murder. As has already been mentioned, the applicant’s application for an extension of time to seek leave to appeal his conviction was refused in 2004. He cannot now seek to impugn the conduct of the trial in a manner that fundamentally disputes the integrity of his conviction.
In any event, we consider that the Grounds 4 and 6 are without merit, as a matter of substance. Teague J made it clear to the jury that they could not convict the applicant of murder unless they considered his conduct to be a deliberate act by which he intended to kill. As Teague J said in his charge to the jury:
For the crime of murder the elements that must be established beyond reasonable doubt are set out in the summary. The prosecution must prove four elements:
1That an act of the accused caused the death of the deceased.
2That the act of the accused which caused death was conscious, voluntary and deliberate.
3That the accused intended to kill or to do really serious injury.
4That the accused acted without lawful justification or excuse.
He then explained the particular points of defence made by the applicant, most particularly the challenge made by the applicant to the deliberateness of the action. After stating that the Prosecution claimed that all of the elements of murder had been proved beyond reasonable doubt, he said:
Mr Knight has argued to the contrary, and most specifically on two bases: first, that the prosecution has not established beyond reasonable doubt that the act which caused death was deliberate; and further, that the intention required for murder has not been made out.
In those circumstances, there can be no doubt that the jury were made aware that there was a contest over whether the acts of the applicant were deliberate. The verdict delivered by the jury must thus be taken to be a verdict that the applicant had engaged in a deliberate action intending to kill or do really serious injury.
Furthermore, there is no foundation to the complaint that Teague J had failed to make plain to the jury at the outset of the trial that the applicant could not be convicted of murder unless they found he had acted deliberately and not by accident. His Honour said on day one of the trial:
The Crown has to prove the elements of the charge. I will explain more about the elements of charges. We are talking about the charge of murder and the elements of murder are set out on that sheet of paper. The prosecution must prove beyond reasonable doubt: (1) That an act or acts of the accused caused the death of the deceased. (2) That the act or acts of the accused which caused death were conscious and voluntary. (3) That the accused intended to kill or do really serious injury. (4) That the accused acted without lawful justification or excuse. At the appropriate time, which isn’t now, I will go into more detail with respect to those matters.
Teague J thus made it clear that his explanation of the elements of murder, as given at the outset of the trial, was preliminary only and the jury would receive more detail at a later stage, which they did. Moreover, this early explanation of the elements of murder was consistent with the later explanation given as part of the charge, as extracted above, because of the overlap between the words ‘deliberate’ and ‘conscious and voluntary’[14] and the clarity of the direction on both occasions of the specific intent required.
[14]R v Johnston (2007) 173 A Crim R 540, 550 [53]; Ryan v The Queen (1967) 121 CLR 205, 224.
The fifth proposed ground of appeal was not extensively elaborated upon in written submissions or oral argument. It is clear from the reasons of the sentencing judge that he made an appropriate assessment of the danger the applicant posed to the community, in the context of the applicant having ‘planned a massacre of many’, lacking remorse and having a psychological state which could worsen.[15] The complaint that this assessment was somehow inappropriate is without merit.
[15]Ibid [23].
In summary, there is nothing in the material relied on by the applicant which indicates that the proposed appeal would probably succeed. In our opinion, the discretion to extend time is not enlivened in the circumstances of this case.
Accordingly, the application for an extension of time must be refused.
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