Likumbo Makasa v The Queen

[2015] NSWCCA 259

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Likumbo Makasa v R [2015] NSWCCA 259

Hearing dates:

14 August 2015

Date of orders:

14 August 2015

Decision date:

14 August 2015

Before:

Ward JA at [1];
Adams J at [32];
Beech-Jones J at [33]

Decision:

Application for an extension of time for the appeal against conviction is dismissed.

Catchwords:

CRIMINAL LAW – appeal – application for extension of time to appeal against conviction – previous appeal against conviction on different count on same indictment – where the Court has no jurisdiction to hear and determine the appeal

Legislation Cited:

Crimes Act 1900 (NSW), ss 61J, 66C(3)

Cases Cited:

Morgan v R (No 2) [2013] NSWCCA 80
R v Grierson (1933) 50 WN (NSW) 71
R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R,R v Likumbo Makasa; Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga (2010) NSWCCA 228

Category:

Procedural and other rulings

Parties:

Likumbo Makasa (Applicant)
Regina (Respondent)

Representation:

Counsel:
No Appearance (Applicant)
Ms T Smith (Respondent)

 

Solicitors:

  Director of Public Prosecutions (Respondent)

File Number(s):

2007/00014574022

Publication restriction:

Nil

Judgment

1. WARD JA: I am of the view that the application for an extension of time to appeal from the conviction on the counts in question should be dismissed and I will indicate briefly my reasons for that view.

2. By notice dated 29 January 2013, Mr Makasa has sought an extension of time in which to appeal against his conviction on 19 August 2009 of three counts of sexual intercourse with a child above 14 years and under the age of 16 years contrary to s 66C(3) of the Crimes Act 1900 (NSW).

3. The proposed grounds of appeal broadly contend that Mr Makasa’s conviction on those three counts is unsafe and unsatisfactory and cannot be supported having regard to the evidence. They include the contention that the conviction was obtained by a combination of incompetence and deception and that as a result a miscarriage of justice has occurred. It is contended that there were material irregularities, the nature of which has not been identified in any submissions by Mr Makasa in the course of the trial.

4. Mr Makasa was represented at the trial. He is not represented on the present application. There has been no appearance by Mr Makasa this morning when the matter was listed for hearing of this application and the transcript will record the attempts that have been made to confirm that Mr Makasa is aware that the matter is listed for hearing on this day.

History of the present proceedings

5. The history of the proceedings has been outlined in two affidavits sworn by Mr George Galanos, a solicitor who is the managing lawyer of the CCA unit from the Office of the Director of Public Prosecutions. Those affidavits have been sworn on 16 May 2014 and 4 June 2014 respectively. Mr Galanos deposes to the procedural history of the matter from February 2013 through to 4 June 2014. Ms Crown informs the Court that her instructions are that those affidavits have been served as well as the Crown submissions on Mr Makasa, although at least as at the date of the second of the two affidavits that affidavit had not been able to be served on Mr Makasa according to Mr Galanos.

6. Mr Galanos’s affidavits reveal a history of adjournments of the proceedings in order to permit Mr Makasa to pursue his attempts to obtain legal representation and a number of occasions when there was no appearance by Mr Makasa when the matter was before the Court of Criminal Appeal’s Registrar.

7. The relevant chronology may be summarised as follows.

8. The matter was first listed for mention before the Registrar on 28 February 2013. There was no appearance by Mr Makasa. Mr Galanos deposes that it was understood at this time that Mr Makasa was being held at the Villawood Detention Centre and would need to be contacted by telephone. Mr Makasa’s affidavit of 30 January 2013 filed with his notice of application in these proceedings disclosed his then address as the Villawood Immigration Detention Centre. The matter was stood over to 14 March 2013.

9. On 14 March 2013, the matter was in the call-over list before the Registrar. Mr Makasa appeared by way of a telephone call to his mobile telephone. An adjournment of two weeks was granted for him to obtain legal advice. Mr Galanos deposes that a Legal Aid lawyer was present at the call-over and indicated that she would post a Legal Aid application to Mr Makasa.

10. On 28 March 2013, Mr Ahmad of counsel appeared as amicus and, among other things, sought an adjournment for an advice on merits to be obtained. The Legal Aid lawyer present at the call-over informed the Court that a Legal Aid application had been lodged by Mr Makasa. An adjournment was granted to 24 April 2013.

11. On 24 April 2013, a Legal Aid lawyer was present at the call-over and advised the Registrar that no determination had yet been made regarding the application for Legal Aid. The matter was adjourned to 9 May 2013.

12. On 9 May 2013, the Registrar was informed that legal aid had not been granted and the matter was stood over to 23 May 2013.

13. On 23 May 2013, Mr Makasa appeared before the Registrar by way of telephone call to his mobile phone. He confirmed he had been refused legal aid and said that he intended to write to the Law Society. An adjournment was granted to 20 June 2013.

14. On 20 June 2013, Mr Makasa again appeared before the Registrar by way of a telephone call to his mobile phone and said that he had lodged an appeal to the Legal Aid Review Committee against the refusal of legal aid. The matter was adjourned to 1 August 2013.

15. On 1 August 2013, Mr Makasa appeared before the Registrar by way of telephone call to his mobile phone and informed the Registrar that the Legal Aid Review Committee had yet to make a determination and that the review was expected to be resolved by 21 August 2013. The matter was adjourned to 29 August 2013.

16. On 29 August 2013, the matter was in the Registrar’s call-over list. Attempts were made to ring Mr Makasa on his mobile phone without success. The matter was adjourned to 12 September 2013.

17. On 12 September 2013, Mr Makasa appeared by way of telephone call to his mobile phone when the matter was again before the Court of Criminal Appeal Registrar. He said that the Legal Aid Review Committee had refused his application for legal aid and that he intended to write to the Bar Association. He informed the Registrar that he had not received any legal advice. A Ms Karen Psaltis from Legal Aid who was present at the call-over informed the Registrar that Mr Makasa had received advice. Mr Makasa sought an adjournment so that he could find someone to represent him. Ms Psaltis informed Mr Makasa that she would provide him with contact details for the Law Society pro bono scheme. The matter was adjourned to 10 October 2013.

18. On 10 October 2013, the matter was in the Registrar’s call-over list. Attempts were made to ring Mr Makasa on his mobile without success. The matter was adjourned to 24 October 2013.

19. On 24 October 2013, Mr Makasa appeared before the Registrar by way of telephone call to his mobile phone. He informed the Registrar that he had contacted the pro bono scheme and forwarded his case to a “few people” but that no one was yet available. He also said he had made some contact with solicitors but had not received any reply. The matter was stood over to 21 November 2013.

20. On 21 November 2013, Mr Makasa appeared before the Registrar by way of telephone call to his mobile phone. He informed the Registrar that the Administrative Appeals Tribunal had made a decision about the cancellation of his visa and that he was now released (presumably from the Villawood Detention Centre where he was being held at least as at February 2013). Mr Makasa said that a barrister would be assisting him with his appeal and that he needed to obtain advice from a legal firm. The matter was stood over to 19 December 2013.

21. On 19 December 2013, Mr Makasa appeared before the Registrar by way of telephone call to his mobile phone. He informed the Registrar that senior counsel was going to see if they could assist him and that his legal representative from the AAT proceedings was awaiting advice. The matter was stood over to 30 January 2014.

22. On call-overs on both 30 January 2014 and 13 February 2014, attempts were made to ring Mr Makasa on his mobile phone without success. The matter was adjourned to 27 February 2014.

23. On 27 February 2014, Mr Makasa appeared before the Registrar by way of a telephone call to his mobile phone. He said that he did not have any funds to pay for legal representation and that he would pursue a different avenue. He asked if the Court would provide him with representation and was informed that this was not possible. He asked for more time to obtain legal representation. The matter was adjourned to 27 March 2014.

24. On 27 March 2014, attempts were made to ring Mr Makasa on his mobile phone without success during the call-over. The matter was adjourned to 10 April 2014.

25. On 10 April 2014, there was no appearance by or on behalf of Mr Makasa during the call-over. Mr Galanos cannot recall if attempts were made to contact Mr Makasa on his mobile phone on that occasion. The matter was stood over to 8 May 2014.

26. On 8 May 2014, there was again no appearance by Mr Makasa at call-over. The matter was stood over to 22 May 2014 and an application by the Crown for summary dismissal of the appeal was foreshadowed. That application was not pursued.

27. On 22 May 2014, there was no appearance of Mr Makasa at the call-over. A call was placed to his mobile phone by the court officer. A male answered the phone. The Court of Criminal Appeal Registrar asked to speak to Mr Makasa; the male said that Mr Makasa was not available for approximately 15 minutes; and the Registrar asked for him to relay a message to Mr Makasa that he should ring the Registry in relation to this appeal. Mr Galanos deposes that, having heard Mr Makasa’s voice during prior telephone calls placed to him in earlier call-overs, he believes it was Mr Makasa who answered the call.

28. At 11.30am on 27 May 2014, Mr Galanos telephoned Mr Makasa’s mobile phone and left a voicemail message informing him that he needed to serve some documents in relation to the appeal. At 12.15pm on 28 May 2014, Mr Galanos made a similar phone call and left a similar message. At 9.40am on 4 June 2014, Mr Galanos again rang Mr Makasa’s mobile phone and left a similar message, including that the matter was listed for mention on 5 June 2014. Mr Galanos deposed that he did not have information regarding Mr Makasa’s address and had been unable to serve him with a copy of that affidavit or with the application for summary dismissal. (As noted earlier the Court is informed that the Crown’s instructing solicitor’s instructions are that Mr Makasa has been served with the affidavits as well as submissions on this application).

29. Most recently, on 12 March 2015, the matter was mentioned in the call-over list before Justice Hulme and listed for hearing on today’s date. Mr Makasa appeared in person at the call-over on 12 March 2015. An order was made on that occasion that he file written submissions by 17 July 2015. That order has not been complied with. The court officer has this morning at 10.10am rung Mr Makasa’s mobile phone and has left a message in relation to the listing of the appeal for hearing today. The court officer has also spoken to a barrister formerly appearing for Mr Makasa who has advised that he spoke with Mr Makasa last week and that Mr Makasa is aware that the matter is listed for hearing today.

Determination

30. Given that the Court’s records indicate that Mr Makasa appeared at the call-over on 12 March 2015 when the matter was listed for hearing today, and the history of the matter which has been summarised, and the fact that for the reasons I will shortly give Mr Makasa’s application is doomed to failure, I consider it is appropriate to proceed with the matter in his absence.

31. The Court has no jurisdiction to hear an appeal against Mr Makasa’s conviction in respect of the three counts in question (counts 8, 10 and 16) because Mr Makasa has already brought an appeal from another count which was contained in the same indictment (count 1) that being a count of aggravated sexual assault in respect of the same complainant. That appeal was heard on 6 August 2010 and resulted in Mr Makasa’s conviction in respect of the aggravated sexual assault charge being quashed. The case is reported in R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R, R v Likumbo Makasa; Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga (2010) NSWCCA 228. The outcome of the Court’s decision on that occasion was that Mr Makasa’s sentence for the three counts the subject of the present application was backdated and he was released from custody.

32. In Morgan v R (No 2) [2013] NSWCCA 80 Beazley P, with whom Hidden J and Harrison J agreed, considered the relevant legislation and relevant authorities, including R v Grierson (1933) 50 WN (NSW) 71, and held that this Court does not have jurisdiction to hear and determine more than one appeal from an indictment that contains multiple counts. Mr Makasa, in his affidavit sworn January 2013 and filed at the time of filing of his notice of application to extend the time for the filing of his appeal, acknowledges that he had legal advice at the time of his first appeal as to the prospects of a challenge to his conviction in respect of counts 8, 10 and 16.

33. Though he there expressed bitter disappointment with that course of action he nevertheless appreciated that his then appeal was only brought in respect of the more serious conviction of aggravated sexual assault without consent contrary to s 61J of the Crimes Act 1900 (NSW).

34. Mr Makasa’s affidavit does not deal with the reason for the delay in bringing the application for extension of time to appeal but in any event it is not necessary to consider this. The Court has no jurisdiction to hear and determine the conviction appeal Mr Makasa now seeks to bring. His application for an extension of time for the filing of an appeal should be dismissed.

35. ADAMS J: I agree.

36. BEECH-JONES: I agree with Ward JA and the orders her Honour proposes.

**********

Decision last updated: 23 September 2015