MAC v The Queen
[2012] VSCA 19
•16 February 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0029 | |
| MAC | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NETTLE and BONGIORNO JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 16 February 2012 |
| DATE OF JUDGMENT | 16 February 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 19 |
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CRIMINAL LAW – Interlocutory appeal – Special hearing pursuant to s 371 of the Criminal Procedure Act 2009 – Time limits – Error made by Court in setting date for special hearing –Extension of time nunc pro tunc – Whether judge erred making order nunc pro tunc that time for special hearing be extended to date more than three months after committal – Whether exceptional circumstances and in interests of justice to extend time – Statutory interpretation – Purposive construction – Appeal dismissed – Emanuel v Australian Securities Commission (1997) 188 CLR 114; Hartley Poynton v Ali (2005) 11 VR 568 referred to – Words and phrases – Exceptional circumstances – Criminal Procedure Act 2009, s 371.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr P F Tehan QC with Mr D T Cash | Randles Cooper & Co Pty Ltd |
| For the Crown | Mr C W Beale | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
This is an application for leave to appeal against an interlocutory decision of a judge of the County Court to extend time for holding special hearings pursuant to s 371(2) of the Criminal Procedure Act 2009.
Section 371 provides:
371 Time limits for special hearing
(1) If a special hearing is to be held, it must be held—
(a)within 3 months after the day on which the accused is committed for trial; and
(b) before the court at which the indictment is filed.
(2) The court may extend the time for holding a special hearing if, because of the existence of exceptional circumstances, the court considers that it is in the interests of justice to do so.
(3) The court may extend time under subsection (2) before or after the time expires.
(4) More than one extension of time may be granted under subsection (2).
The facts
The applicant stands charged with 12 charges of indecent act with a child under 16 and five charges of sexual penetration of a child under 16 committed between 2008 and 2011. At the time of the alleged offences, the applicant was between 23 and 25 years of age and the two complainants were between nine and 11 years of age and eight and 10 years of age respectively.
The applicant was committed for trial on 4 October 2011. Absent an extension of time, therefore, any special hearing was required to be held by 4 January 2012. In the events which occurred, however, the special hearings were held on 31 January 2012 without an extension of time first being sought or granted.
How that came about is problematical. But it appears to have been the result of a mistake. As the judge observed in her ruling, the time frame for the trial and special hearings was set some months before Christmas 2011, to the knowledge of all parties. Evidently, it was not then appreciated that there would need to be an extension of time for the special hearings. The Crown should have applied for an extension at the outset, or at least within the three months following committal, but if failed to do so.
Defence counsel was the first to suspect that there may be a problem. On 29 January 2012, he sent an email to the Solicitor for Public Prosecutions querying whether an extension of time had been granted. But the Solicitor did not respond. Instead, the next day, defence counsel took the matter up with the trial judge during the course of a directions hearing, and the judge and counsel thereupon consulted a court-generated computer printout on which were listed pending matters for which an extension of time for trial had been granted pursuant to s 247 of the Criminal Procedure Act. It included the subject matter. The judge announced that, although the document did not specifically state that the time for the special hearings had been extended under s 371 of the Criminal Procedure Act, she assumed that was what ‘they are talking about’. Seemingly assured by that asseveration, defence counsel responded by thanking her Honour for ‘clearing that up’. The next day, the special hearings were held.
After the hearings had concluded, it came to the attention of the judge that an extension of time had not been granted and, on Friday 3 February 2012, her Honour informed counsel of what she had discovered. Consequently, after considering the matter over the weekend, on Monday 6 February 2012 the prosecutor made an application for extension nunc pro tunc. The defence opposed that course on grounds that there were not exceptional circumstances and that it was not in the interests of justice; although, at that stage, the defence did not dispute that, if the circumstances were exceptional and it were in the interests of justice, the judge would have power to make an order under s 371(2) in respect of the special hearings already concluded.
The judge ruled that she had power to extend time in relation to the hearings already held and found that there were exceptional circumstances sufficient to warrant the extension. Her Honour was also persuaded that it was in the interests of justice to make the order sought because the hearings had already been held and, if they had to be held again, it would mean that the complainants would need to be cross-examined again.
Applicant’s contentions
Before this court, the applicant contended that the judge did not have power to make an order extending time after the hearings were held. Counsel for the applicant submitted that to construe s 371(2) as enabling the making of an order nunc pro tunc would undermine what he described as the public policy reason for the legislation, of ensuring that children and cognitively impaired complainants give evidence and are cross-examined in a timely manner. So to construe the section, he argued, would also condone the disregard of time frames laid down by the legislature and set a precedent which would encourage delay in children giving evidence. Further, counsel said, since the regime established by s 371 represents a significant departure from common law procedure, it should be construed as requiring strict compliance. Counsel also argued that there were not exceptional circumstances sufficient to warrant an extension and, albeit only faintly, that it would not be in the interests of justice.
Crown’s contentions
Counsel for the Crown submitted that there is no express requirement in s 371 that an extension of time be sought and granted before a hearing is held, and that to construe the section as implicitly imposing such a requirement would defeat the purpose of the legislation. For assuming that exceptional circumstances are otherwise established and that the court is otherwise satisfied that it is in the interests of justice to extend time, to hold that an extension of time could not be granted after a hearing is held would only result in further hearings and thus the subjection of the complainants to the ordeal of giving their evidence again.
Orders nunc pro tunc
The power of courts to extend time nunc pro tunc is well established albeit variable according to context. In Hartley Poynton Ltd v Ali,[1] Ormiston JA undertook a lengthy analysis of the history and development of the power and concluded that it derives from the court’s inherent jurisdiction to remedy a situation by dating an order in a way which gives effect to the justice of the case.[2] His Honour was there speaking in the context of whether it was permissible to backdate a judgment in order to outflank the actio personalis moritur cum persona rule. But his Honour’s analysis and conclusions as to the juridical basis of the power to extend time nunc pro tunc ranged beyond that context. As his Honour demonstrated, it is not generally to be exercised so as to alter substantive rights.[3] Otherwise, however, it is conceived of as a broad power capable of adaptation to suit the circumstances of a particular case in order to overcome procedural irregularities and difficulties.[4]
[1](2005) 11 VR 568.
[2]Ibid 609 [80].
[3]Ibid 606 [73].
[4]Ibid.
The High Court dealt with the subject in Emanuele v Australian Securities Commission[5] in the context of whether there was power to extend time nunc pro tunc under s 459P of the Corporations Law. The court split three to two. Brennan CJ with whom Gaudron J agreed in part, held that there was not. Toohey J with whom Dawson J agreed and Kirby J (for different reasons) held that there was. Their Honours’ reasons repay careful reading.
[5](1997) 188 CLR 114.
Brennan CJ, in dissent, said that whether a statutory provision confers power to enlarge time nunc pro tunc is to be decided by construing the provision in context, having regard to the purpose which the provision is intended to serve. His Honour then discerned the statutory purpose of s 459P as being to ensure that an applicant not take a step to wind up a company without the court’s prior inspection and satisfaction that the step was warranted. He concluded that to construe s 459P as allowing for applications for leave to proceed after the event would be to subject a company to the risk of unwarranted applications which could have profound and devastating effects on the company and thus run counter to the evident statutory policy.
Gaudron J, also in dissent, considered that an application for an extension of time could be made after an applicant had applied to wind up a company. Her Honour reasoned that a statutory provision conferring power on a court is not to be construed as subject to implications or limitations unless clearly required by the terms of the provision, its context or subject matter,[6] and that such provisions should not be construed as directing an inflexible approach unless that is clearly indicated. As her Honour said, courts are possessed of powers to be exercised in the interests of justice and, as a general rule, the interests of justice are not well served by the exercise of powers inflexibly and without regard to the convenience of the situation. But her Honour concluded that leave nunc pro tunc could not be granted after a winding up order had been made because to do so would negate what her Honour described as the nature of the independent judicial discretion to extend time.
[6]Her Honour referred to Owners of ‘Shin Kobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 404, 421.
Toohey J (and Dawson J) based his decision on the fact that s 459P was not jurisdictional – the jurisdiction of the court to order that a company be wound up was conferred by s 459A – and, therefore, failure to obtain leave before a winding up order was made was a mere procedural defect or irregularity in the exercise of jurisdiction which, in accordance with established authority, could be cured by an order nunc pro tunc.
Kirby J said that the fundamental task was to give effect to the purpose of Parliament and therefore to avoid a construction which would result in such inconvenient outcomes that the legislation would miss its apparent target and fail to achieve its obvious objectives.[7] His Honour also noted that, in recent times, there had been a general disfavour to procedural rigidities and preference for a more flexible approach to statutory requirements of a procedural character.[8] As against that, Kirby J observed that a more stringent approach is commonly taken in relation to criminal proceedings[9] and where the leave envisaged is antecedent to the institution of penal proceedings or proceedings affecting the rights and status of parties.[10] His Honour also referred to David Grant & Co Pty Ltd v Westpac Banking Corp[11] where it was held that the time limit laid down by s 459G of the Corporations Law could not be extended after the time for applying to set aside a statutory demand had expired; although, as his Honour observed, that was because of a particular statutory imperative that such applications be raised and determined within a very short space of time. Similar considerations proved determinative in Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corp Ltd[12] in relation to s 459F(2)(a) of the Corporations Act 2001 (C’th).
[7]His Honour referred to Bropho v Western Asuralia (1990) 171 CLR 1, 20, approving Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, 421–4.
[8]His Honour referred to Woods v Bate (1986) 7 NSWLR 560, 567.
[9]His Honour referred to Cheatle v The Queen (1993) 177 CLR 541, 558–9; Coco v The Queen (1994) 179 CLR 427, 436, 446; and DPP v Deeks (1994) 34 NSWLR 523, 531.
[10]His Honour referred to Mole v Forrests Commissioner (Vict) [1957] VR 583 and Hunter v Victoria [1960] VR 349.
[11](1995) 184 CLR 265.
[12](2008) 232 CLR 314.
Ultimately, however, Kirby J concluded that s 459P did confer power to extend time after a winding up order had been made, for reasons which his Honour said included that the power to correct obvious slips by orders nunc pro tunc is one granted by legislation and rules to avoid injustice; the terms of s 459P were not revolutionary but reflected provisions which had been construed in the past as allowing for the grant of leave nunc pro tunc;[13] it would not promote the public interest in preventing insolvent companies continuing to trade to interpret s 459P strictly; and to construe s 459P as conferring power to extend time nunc pro tunc was consonant with the language of the section.
[13]His Honour referred in particular to Re Testro Bros Consolidated Ltd [1965] VR 18, 33–35.
In Hartley Poynton, Ormiston JA suggested that one should be careful in applying Toohey J’s analysis in Emanuele to areas of law other than the extension of time in which to seek leave to apply to wind up a company. If that be so, however, I do not see that same concerns attend the reasons of Brennan CJ, Gaudron J and Kirby J. Although directed to whether an order could be made nunc pro tunc for the extension of time to seek leave to apply to wind up a company, their judgements were expressed in terms of principle which appear to me to be of more or less general application. And, although they reached different conclusions, the considerations which they identified as relevant were by and large very much the same. I proceed upon that basis.
The power to extend time after a special hearing
Approaching the interpretation of s 371(2) of the Criminal Procedure Act in accordance with that reasoning, I have concluded that the section does confer power in an appropriate case to extend time for the holding of a hearing nunc pro tunc after the hearing has been held. The considerations which lead me to that conclusion are as follows.
First, the form and substance of s 371 are procedural. The section does not confer jurisdiction to conduct a special hearing. The jurisdiction to conduct the hearing is conferred by s 370. Section 371 is concerned only with matters of procedure for the exercise of that jurisdiction.
Secondly, as I perceive it, the evident purpose of s 371(2) extends to the correction of errors and slips, in exceptional circumstances, where it is in the interests of justice to do so. The express requirement that time not be extended unless it is in the interests of justice to do so makes that plain.
Thirdly, insofar as it may be said that an order under s 371(2) is capable of affecting substantive rights – in that, by extending time for the holding of a special hearing, it subjects an accused to the process of special hearing at a later date than three months after committal[14] – s 371(3) puts beyond doubt that it was Parliament’s intention that it be so in exceptional circumstances in the interests of justice.
[14]See and compare Yrttiaho v Public Curator (Qld)) 1971 125 CLR 228, 241 (Gibbs J).
Fourthly, to adopt and adapt the reasoning of Gaudron J in Emanuele, where a statutory provision like s 371(2) does not expressly provide that time can only be extended before a hearing is held, it is not to be construed as subject to such implications or limitations unless clearly required by the terms of the provision, the context or the subject matter. I do not perceive anything about the terms, context or subject matter of s 371(2) which implies that the power to extend time under the section may not be exercised even after a hearing has been held. If anything, s 371(3) rather suggests the contrary.
Fifthly, although we are here concerned with criminal proceedings, and as Kirby J observed in Emanuele, there is a tendency with criminal proceedings to take a more stringent approach in relation to statutory preconditions, the cases to which his Honour referred in support of that proposition draw a clear distinction between provisions concerned with substantive rights and procedural provisions relating to proceedings in which substantive rights are in question. Thus for example, Newell v The King[15] and Cheattle v The Queen[16] were concerned with the constitutional substantive right to trial by jury in the case of Commonwealth indictable offences and the abrogation of the common law right to a unanimous verdict. The passage in Bropho v Western Australia[17] which his Honour cited was specifically directed to the modification or abrogation of fundamental rights. Coco v The Queen[18] was similarly concerned with the need for ‘a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom’. DPP v Deeks[19] was to do with the need for a clear expression of statutory intention in order to change the long established position that there is no general power to order costs in criminal proceedings.
[15](1936) 55 CLR 707.
[16](1993) 177 CLR 541.
[17](1990) 171 CLR 1, 20.
[18](1994) 179 CLR 427.
[19](1986) 7 NSWLR 560.
Those considerations do not apply to s 371(2) of the Criminal Procedure Act. As I have said, it is in form and substance a procedural provision even if it is to some extent capable of affecting rights,[20] and s 371(3) puts beyond doubt that it was Parliament’s intention that it should be so in exceptional circumstances in the interests of justice.
[20]Yrttiaho v Public Curator (Qld), ibid.
Sixthly, unlike the cases of Mole v Forrests Commissioner (Vict)[21] and Hunter v Victoria,[22] in which the terms of the statute[23] enabling an extension of time to bring proceedings implied that the extension had to be sought and obtained before the proceedings were ‘brought’ against a ‘prospective defendant’, and thereby implicitly excluded the possibility of an extension of time after a proceeding had been ‘brought’ against a ‘defendant’, there is no syntactical or semasiological impediment to reading the language of s 371(2) as enabling an extension of time in which a special hearing may be held, even after it is held. According to the natural and ordinary meaning of the section, the obtaining of an extension of time is not a condition precedent to the holding of a special hearing.
[21][1957] VR 583.
[22][1960] VR 349.
[23]Limitation of Actions Act 1955, s 34(1) and Limitation of Actions Act 1958, s 34(4).
In the course of oral argument, counsel for the applicant referred to the decision of the Court of Criminal Appeal in R v Symons[24] that s 359A of the Crimes Act 1958 (as it was then) required that a trial of a person for rape not be commenced more than three months after the accused was committed for trial. Counsel submitted that it was implicit in the court’s decision in Symons that the period of three months for which s 359A provided could not be extended after that period had expired, and he argued that, mutatis mutandis, the same reasoning applies to the extension of time under s 371(2) of the Criminal Procedure Act.
[24][1981] VR 297.
In my view, that argument is unsound. As counsel for the Crown pointed out, the form of s 359A of the Crimes Act 1958 was relevantly very different to the form of s 371 of the Criminal Procedure Act. Section 359A(2) provided that an extension of time could be granted before the period of three months had expired, and thus necessarily implied that an extension could not be granted after the end of that period. In contrast, s 371(3) expressly provides that an extension of time may be granted before or after the expiration of the period of three months
Seventhly, although the evident purpose of ss 371(1) and (2) is to ensure that a special hearing is not held more than three months after committal unless the court is satisfied that there are exceptional circumstances and that it is in the interests of justice to extend the time for the holding of the special hearing, the apparent aim of the legislation, of preserving the control of the court over the time in which a hearing may be held, is sufficiently achieved by interpreting the s 371(2) as conferring a control of a directory character on the court, as opposed to setting up an absolute bar like a statute of limitations.[25]
[25]Cf Re Testro Brothers Consolidated Ltd [1965] VR 18, 34 (Sholl J).
Unlike Emanuele, where the making of an unwarranted application to wind up a company could have had devastating consequences for the company and, as Brennan CJ conceived of it, the purpose of s 459P of the Corporations Code was to ensure that an application for leave to proceed be made and decided before that occurred, there is nothing about a special hearing which in itself could so prejudice an accused that Parliament must be supposed to have excluded the possibility of a post hearing time enlargement.
Eighthly, I do not consider that exercise of the power to extend time after a hearing has been held would trench upon the independent judicial discretion conferred by s 371(2) to determine whether there are exceptional circumstances and that it is in the interests of justice to grant the extension. A judge called upon to decide an application for extension of time after a hearing would be as much at large as to whether the circumstances are exceptional and that it is in the interests of justice to allow the extension as the judge would be to make such a determination immediately before the hearing.
It is true that one factor which might bear upon a determination after a special hearing is held is the fact that it has been held, and that would not be so in the case of a determination made before the special hearing is held. But I do not conceive of that as restriction upon the independent judicial discretion conferred by s 371(2). It is rather a reflection of the fact that the independent discretion is to be exercised in light of whatever circumstances exist at the time. The decision of the majority in Emanuele rather bears that out.
Counsel for the applicant submitted that to construe the power of extension as applying to a special hearing that has already been held would be to ascribe to Parliament an intention that the court should give its imprimatur to error and incompetence on the part of the Crown. In counsel’s submission, it cannot be that Parliament intended to provide for what counsel characterised as a curial sanction of prosecutorial negligence.
I do not accept that submission either. To begin with, it is readily conceivable that a special hearing might be held more than three months after committal without an extension of time and without any incompetence on the part of the Crown. For example, the Crown might be misled by error on the part of a court officer who carelessly records the wrong date as the date of committal or erroneously notes in a court record that an extension of time has been granted when in fact it has not been. Examples can be multiplied. In such cases, the rule expressed in the maxim actus curiae neminem gravabit[26] would ordinarily apply, and, logically, there is no reason to suppose that Parliament intended that in such cases it should not apply.
[26]Broom’s Legal Maxims 6th Ed, 116–120; Jeffrey v Jeffrey (1941) 61 CLR 421, 588–0 (Dixon J); Hartley Poynton Ltd v Ali (2005) 11 VR 568, 600 [65].
It is also to be borne in mind that, where the failure to obtain an extension of time before a special hearing is held is due to carelessness on the part of the Crown, that is likely to be a relevant consideration in determining whether there are exceptional circumstances and it is in the interests of justice sufficient to grant an extension of time after the event. The fact that Crown carelessness may thus sometimes lead a court to refuse to extend time is, therefore, hardly a reason to suppose that Parliament intended that there should never be a post-hearing extension of time regardless of the circumstances. It is more logical to assume that Parliament intended to leave the question to the court to approach on a case by case basis according to the exceptionality of the circumstances and the interests of justice.
Furthermore, errors and omissions in compliance with statutory procedural requirements are bound to occur; especially when legislation is complex, the volume of business is high and resources are limited. It is, therefore, not a question of the court condoning prosecutorial incompetence for it to recognise the reality that errors can and do occur and, so far as possible consistently with the interests of justice, to do what can be done to overcome the problems thereby created. So to do is no more than to give effect to the statutory purpose of the legislation in the reality of the context in which it is required to operate.
Kirby J made the point clearly in Emanuele, when his Honour said that:
Courts today are less patient with meritless technicalities. They recognise the inconvenience that can attend an overly strict requirement of conformity to procedural preconditions. In the morass of modern legislation, it is easy enough, even for skilled and diligent legal practitioners (still more lay persons who must conform to the law) to slip in complying with statutory requirements. The Law is a case in point. Its complexity and detail is such that it has necessitated, within a short time of its enactment, the passage of the First Corporate Law Simplification Act 1995 (C’th). A number of further stages of simplification are promised. An undue rigidity in insisting upon strict compliance with all of the procedural requirements of the Law could become a mask for injustice and a shield for wrong-doing. Against that risk, courts generally retain the facility to cure slips and to repair oversights in proceedings before them, in appropriate cases where justice requires it.[27]
Mutatis mutandis, the same reasoning applies to the construction of s 371 of the Criminal Procedure Act.
[27](1997) 188 CLR 114, 152.
Ninthly, although it must be assumed that Parliament intended the Crown to ensure that a special hearing is ordinarily held within three months of committal, and it may be accepted that the possibility of the Crown obtaining an extension of time creates a risk of delay, it is clear enough that Parliament has considered the risk and decided to deal with it by means of the requirement for exceptional circumstances and the interests of justice. Whether an extension of time is granted before or after a special hearing is conducted makes no relevant difference.
Finally, to construe s 371(2) as precluding the making of an order for extension of time after a hearing is held would be likely to result in such inconvenient outcomes that, to a significant extent, the legislation would miss its apparent target and fail to achieve its obvious objectives. For, example, assuming without deciding that counsel for the applicant were correct in his contention that a special hearing held out of time is a ‘nullity’[28] and thus that time cannot be extended nunc pro tunc, there would be nothing in principle to preclude the grant of an extension of time in which to hold a second special hearing. The result of that would be to subject a complainant and the accused to the ordeal of a second hearing and require the case to be decided on evidence given by the complainant in the later hearing which, because it would be given later in time than the first, invalid, hearing, would tend to be less reliable. In those circumstances, to adopt and adapt the words of Sholl J in Re Testro Brothers Consolidated Ltd,[29] it would be an absurdity if the hearing had now to be held all over again after an extension of time was granted.
[28]Cf Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 613 [46] (Gaudron and Gummow JJ).
[29][1965] VR 18, 32 and 35.
On the other hand, assuming without deciding that counsel were correct in his alternative contention that, where a special hearing is held out of time, a second hearing held with the benefit of an extension of time would be an abuse of process and thus impermissible, the result would be that, wherever a special hearing is held out of time, no matter what the reason, the complainant might not thereafter be able give evidence – even viva voce evidence[30] – and the prosecution would almost certainly be bound to fail. To say the least, it is logically improbable that Parliament intended that to be so when, ex hypothesi, were it not for the first invalid special hearing, a valid special hearing might have been held within an extended period of time no sooner than the second prohibited special hearing, and the results of it lawfully relied upon. Pressed as to why it should be supposed that Parliament might have intended to produce such bizarre consequences, counsel could offer no more than a repetition of his earlier submission that Parliament should not be taken to have intended to provide for the curial sanction of prosecutorial incompetence. For the reasons earlier given, I reject it.
[30]See Criminal Procedure Act 2009, ss 370(1) and (2).
Exceptional circumstances
I turn to the question of whether the judge was in error in concluding that there were exceptional circumstances sufficient to warrant the extension which was granted.
The question of what amounts to ‘exceptional circumstances’ is one of fact and degree and therefore one about which reasonable minds may to some extent differ. As Lord Bingham of Cornhill CJ said in R v Kelly:[31]
We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered…
[31][2000] 1 QB 198, 208.
Similarly, as Hedigan J noted in Owens v Stevens and Collins:[32]
Exceptional is defined, contextually, in the Oxford English Dictionary (2nd Editions Volume V), the greatest dictionary, as meaning ‘unusual, special, out of the ordinary course’. This does [not] mean any variation from the norm.
The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.
Courts have been both slow and cautions about essaying definitions [or] phrases of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.[33]
[32]3 May 1991, SC Vic, Unreported, 16-17.
[33]See and compare R v Stegall (2005) 157 A Crim R 402, [12]; R v Ioannou (2007) 17 VR 563, 568 [16]–[22] (Redlich JA); R v Ienco [2008] VSCA 17, [14]–[18] (Kellam JA); DPP v Gerrard [2011] VSCA 200, [25] (Neave JA).
More succinctly still, as Redlich JA[34] distilled the essence of ‘exceptional circumstances’ as it has been interpreted in a number of leading cases: for something to amount to ‘exceptional circumstances’, it must be ‘clearly unusual or quite special or distinctly out of the ordinary’. It is not enough to find something which ‘falls within the range of normally anticipated consequences, behaviours or exigencies’. But, subject to context, something does not have to be ‘beyond reasonable expectation or contemplation’ in order to be exceptional.
[34]In Rv Ioannou (2007) 17 VR 563, 568 [17].
In her ruling on the point the judge said this:
I am satisfied that the circumstances of this situation are exceptional. There is a combination of factors which lead me to that conclusion. Those factors include the factors raised by the prosecution but also some that I would add myself.
The time set for the special hearings in this case were set some months ago and well before Christmas. That time frame was known to the parties. That time frame has been adhered to. There was reference at the directions hearing to that time frame. It would have been preferable for the prosecution to apply for an extension of time earlier but the practice has been that the extension of time application should be dealt with by the trial judge.
The time set for the hearings was … [by only] … that period of time between 4 January and 31 January … beyond the three months.
A considerable part of that time of course was the annual vacation of the court where the court does not sit for a period of four weeks.
In accordance with the current practice therefore the question of the extension of time which was a matter which should have been dealt with by application of the prosecution at the beginning of the pre-trial matters. The matter was in fact raised by defence, quite properly. It was an error of mine which after discussion was that there had … presumably been an extension of time for the special hearings. That was a mistake.
After further discussion and reflection I realised that that had been a mistake and raised the matter with the parties. Those are all factors which in my view in combination make this an exceptional circumstance, that is, that it is out of the ordinary.
As defence has properly conceded, the question of the interests of justice is not so difficult. It is clear in my view that it is in the interests of justice for an extension of time to be given.
It is the fact that the special hearings have been held. They were only shortly out of time. The two children in this case are quite young. It is in the interests of justice for this matter to proceed. There has been one cross-examination of the children. If an extension of time were not granted potentially the question would then be of the complainants having to be cross-examined again, presumably with the use of remote witness facility but that in my view is undesirable for all of the parties and in my view that would not be in the interests of justice.
For those reasons I extend the time for the holding of the special hearings in this matter to 31 January 2012 and I so rule.
With respect, I see no error in her Honour’s conclusion that the circumstances were exceptional. From what her Honour said in the ruling, it is exceptional for an application for extension of time not to be made at the outset of the interlocutory stages of a proceeding in which it is ordered or contemplated. Further, as it seems to me, one is entitled to conclude that it will only very rarely be the case, as it was here, that the Crown, defence counsel and the judge all make the same mistake as to whether an order extending time has already been made. Obviously, oversight and omission are each in themselves banal. But that does not preclude the conclusion that, in certain combinations, they may properly be regarded exceptional. To my mind, a case in which the prosecutor, defence counsel and the judge all make the same mistake as to whether an extension of time has been granted, and indeed do so even after the issue is expressly raised for consideration, the circumstances are ‘clearly unusual or quite special or distinctly out of the ordinary’ if not also ‘beyond reasonable expectation or contemplation’.
I also see no error in her Honour’s conclusion that the extension was in the interests of justice in view of the very short period of time outside the three months following committal after which the hearings were held and the other considerations which her Honour identified. I am strengthened in that conclusion by the lack of any substantial submission to the contrary.
Of course, I do not mean to suggest that it would be appropriate to adopt a course of routinely setting down special hearings for a date more than three months after committal and then as a matter of course extending time to the date appointed. There should be no doubt that in most cases the three month time limit must be observed and that there should only ever be a deviation from that requirement in exceptional circumstances in the interests of justice. In this case, however, the circumstances are exceptional.
Conclusion
In the result, I would dismiss the application for leave to appeal.
BONGIORNO JA:
I agree with Nettle JA.
NETTLE JA:
The order of the Court is that the application for leave to appeal is dismissed.
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