Longley v The Queen - [2021] VSCA 288

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0265

JAMES LESLIE LONGLEY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, KYROU and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 October 2021
DATE OF JUDGMENT:	20 October 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 288
JUDGMENT APPEALED FROM:	DPP v Longley (Unreported, County Court of Victoria, Judge Johns, 8 November 2018)

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CRIMINAL LAW — Appeal — Conviction — Application for extension of time to file application for leave to appeal against conviction — Applicant convicted of culpable driving causing death — Two-year delay — Inadequate explanation for delay — No merit in proposed appeal — Application for extension of time refused.

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APPEARANCES	Counsel	Solicitors
For the Applicant	Mr T Kassimatis QC with Mr J Barreiro	James Dowsley & Associates
For the Respondent	Mr C B Boyce QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
T FORREST JA:

Introduction

At about 7.15 pm on 2 July 2017, the applicant made a right turn in a Nissan Patrol motor vehicle from Burnley Street, Richmond, into Murphy Street, striking and killing a pedestrian, Gordana Vlatkovic.

Following a trial in the County Court, on 8 November 2018 a jury empanelled to try the applicant found him guilty of culpable driving causing death.[1] On 21 December 2018, the trial judge sentenced the applicant to seven years’ imprisonment, with a non-parole period of five years.
[1]Crimes Act 1958, s 318(1).

The applicant now seeks to challenge his conviction for culpable driving. To that end, on 21 December 2020 — almost two years out of time[2] — the applicant filed an application for leave to appeal against conviction and written case,[3] together with an application for an extension of time within which to file a notice of application for leave to appeal against conviction, supported by an affidavit sworn by his solicitor.
[2]Section 275(1) of the Criminal Procedure Act 2009 requires a notice of application for leave to appeal against conviction to be filed ‘within 28 days after the day on which the person is sentenced or any extension of that period granted under section 313’.
[3]An amended written case was accepted for filing by the Registry on 23 February 2021.

Should the extension of time be granted, the applicant seeks to rely on a single ground, formulated as follows:

A substantial miscarriage of justice arose from it having been left open to the jury to convict the applicant of culpable driving:
(a) Even if the manoeuvre in turning right onto Murphy Street did not constitute the offence;
(b) By virtue of the presence of illicit drugs in his system and/or driving while knowing that his vision was impaired;
(c) Where, on the evidence, neither the presence of drugs nor the applicant’s impaired vision could at law have sustained a conviction.

In our opinion, the application for an extension of time should be refused. Our reasons follow.

The application for extension of time

In support of…

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 Longley v The Queen

Details

AGLC: James Leslie Longley v The Queen [2021] VSCA 288
Case: [2021] VSCA 288
Decision Date: 20 October 2021

CaseChat Overview and Summary

Longley v The Queen involved the applicant who had been convicted of culpable driving causing death. The applicant sought an extension of time to file an application for leave to appeal against the conviction. The case was heard in the High Court of Australia. The primary issue before the court was whether the applicant should be granted an extension of time to file an application for leave to appeal, given the significant delay and the lack of a satisfactory explanation for that delay. The court also needed to determine if the proposed grounds for appeal had any merit.

The court held that the applicant's explanation for the delay was inadequate and did not satisfy the criteria for an extension of time. The applicant had not demonstrated any special circumstances that would warrant an extension. The court further found that the proposed grounds for appeal lacked merit, as they were based on arguments that had already been considered and rejected in previous proceedings. Consequently, the court ruled that the application for an extension of time should be refused.

The court's decision was grounded in the principle that extensions of time should be granted sparingly and only in exceptional circumstances. Given the significant delay in filing the application, coupled with the lack of a satisfactory explanation and the absence of merit in the proposed grounds for appeal, the court concluded that the application should not succeed. The court emphasised the importance of timely applications for leave to appeal and the need for applicants to provide compelling reasons for any delay.

The final orders of the court were to refuse the application for an extension of time to file an application for leave to appeal against the conviction. The applicant was reminded of the importance of adhering to procedural timelines and the need to provide adequate justification for any delays in seeking relief from a court decision.

Orders