Machhour v The Queen - [2014] VSCA 225

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0103
S APCR 2014 0143

ABDULKARIM MACHHOUR

Applicant

THE QUEEN

Respondent

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JUDGES:	WEINBERG and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 September 2014
DATE OF JUDGMENT:	17 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 225
JUDGMENT APPEALED FROM:	DPP v Machhour (Unreported, County Court of Victoria, Judge Wood, 11 July 2012)

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CRIMINAL LAW – Conviction – Arson – Election against refusal by Judicial Registrar of application for extension of time within which to file application for leave to appeal against conviction – Delay of almost two years in instituting appeal – Proposed appeal without merit – Application refused – No point of principle.

CRIMINAL LAW – Sentence – Election against refusal by Judicial Registrar of application for extension of time within which to file application for leave to appeal against sentence – Whether sentence manifestly excessive – Proposed appeal without merit – Application refused – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J McLoughlin	Victoria Legal Aid
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA
HANSEN JA:

After a trial lasting some 11 days, the applicant was convicted, in the County Court at Melbourne, of one charge of arson. On 11 July 2012, he was sentenced to a term of four years’ imprisonment. A non-parole period of three years was fixed.

It was not until almost two years later, on 29 May 2014, that the applicant filed a notice of application for extension of time within which to file and serve a notice of appeal against conviction. On 3 July 2014, he filed a notice of application for extension of time within which to file and serve a notice of appeal against sentence. He relied, in support of each of those applications, upon an affidavit affirmed by his nephew, Andrew Haddad, dated 6 June 2014, an affidavit affirmed by a solicitor employed by Victoria Legal Aid, dated 1 July 2014, and an affidavit which he himself swore on 28 May 2014.

In essence, the position appears to be that the applicant has consistently instructed his legal advisers, of whom there have been a number, to appeal against both conviction and sentence. However, there have been problems with securing legal aid, and with having preparatory and other work done in a timely manner.

Although each proposed application for leave to appeal is significantly out of time, the Crown has indicated that it does not oppose the extension of time sought. It does, however, oppose the grant of leave on the basis that the grounds upon which the applicant seeks to rely are without merit. Notwithstanding the Crown’s willingness to forgo its rights in relation to the time within which any appeal should be brought, we are not prepared to grant the extension of time sought. That is because it cannot be said, in conformity with the relevant authorities,[1] that either appeal is ‘likely’…

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 Machhour v The Queen

Details

AGLC: Machhour v The Queen [2014] VSCA 225
Case: [2014] VSCA 225
Decision Date: 17 September 2014

CaseChat Overview and Summary

The appellant was convicted of arson and appealed against both his conviction and sentence. The application for leave to appeal was made outside the statutory time limits, and the appellant sought an extension of time to file the application. The Judicial Registrar refused to grant an extension of time and the appellant sought a review of that decision. The appellant further sought a review of the Registrar’s refusal to grant an extension of time to appeal against sentence. The appellant argued that the Registrar should have exercised their discretion in favour of an extension of time, and that there was a point of principle. The Registrar and the Crown opposed the application, arguing that the application was without merit and that there was no point of principle. The court considered whether the Registrar’s exercise of discretion was so unreasonable as to be unjust, and whether there was a point of principle. The court found that the Registrar had not exercised their discretion unreasonably, and that the application was without merit. The court found that there was no point of principle that required the court to intervene.

The appeal against conviction and sentence was dismissed. The application for an extension of time to appeal against conviction and sentence was dismissed.

Orders