DPP v Madafferi (Unreported, County Court of Victoria, Judge Mason, 26 August 2014 (Conviction))
---
CRIMINAL LAW – Appeal – Conviction – Application for extension of time to appeal – Applicant convicted of trafficking in commercial quantity of controlled drug – Refusal of extension of time by Registrar – Election to have application determined by Court of Appeal – Three year delay in filing application – Fitness to be tried – Whether real and substantial question that applicant may have been unfit at time of trial – No question of fitness arose during trial – Psychiatric and psychological assessments conducted two and a half years after trial – Explanation for delay unsatisfactory – Application refused – Criminal Procedure Act 2009 s 313 – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Part 2.
---
APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr C Dane QC with Mr M E Dempsey and Mr J P W Maloney
Aitken Partners
For the Crown
Mr R Maidment QC
Mr J Cain, Solicitor for Public Prosecutions
PRIEST JA HANSEN JA COGHLAN JA:
Introduction
Following a trial in the County Court, on 26 August 2014, the applicant[1] was convicted of trafficking in a commercial quantity of a controlled drug, namely MDMA.[2]
[1]The applicant’s date of birth is 10 January 1961. He is currently 56 years of age.
[2]Pursuant to s 302.2(1) of the Criminal Code (Cth), the maximum sentence is life imprisonment. A commercial quantity of MDMA is 500 grams: see Criminal Code Regulations 2002 (Cth), sch 3, item 173, column 2.
On 17 December 2014, he was sentenced to 10 years’ imprisonment with a non-parole period of seven years. During the plea in mitigation, eight psychological reports were tendered on the applicant’s behalf. The applicant’s history of depressive illness was relied upon as relevant to a Verdins[3] submission with respect to the burden of imprisonment upon the applicant. No intimation or suggestion was made, however, that the applicant may have been unfit to stand trial.
The applicant did not file a notice of application for leave to appeal against conviction until 6 April 2017. Since the notice was more than two years out of time,[4] the applicant sought an extension of time from the Registrar within which to file the notice. That application was refused on 20 April 2017. As is permitted by s 313(2) of the Criminal Procedure Act 2009, following the Registrar’s refusal the applicant requested this Court to extend time.
[4]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…
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 Madafferi v The Queen
Sign in free to access the full text
Details
AGLC
Madafferi v The Queen [2017] VSCA 302
Case
[2017] VSCA 302
Decision Date
CaseChat Overview and Summary
Madafferi was convicted of trafficking in a commercial quantity of a controlled drug and subsequently applied for an extension of time to appeal his conviction. The Registrar of the Court of Appeal refused the application and Madafferi elected to have the matter determined by the Court. The primary issue before the Court was whether there was a real and substantial question that Madafferi may have been unfit to be tried at the time of his trial. The Court held that the application for an extension of time was not made within a reasonable time and the explanation for the delay was unsatisfactory. The Court also found that no question of Madafferi’s fitness to be tried arose during the trial, and that psychiatric and psychological assessments were conducted two and a half years after the trial. The application for an extension of time was therefore refused.
The Court considered the relevant statutory provisions, including section 313 of the Criminal Procedure Act 2009 and the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The Court noted that the statutory provisions required the application for an extension of time to be made within a reasonable time and that the delay in making the application must be satisfactorily explained. The Court held that the delay in this case was not satisfactorily explained and that the application for an extension of time was therefore outside the jurisdiction of the Court. The Court also noted that there was no evidence to suggest that Madafferi was unfit to be tried at the time of his trial and that any assessments conducted after the trial were of limited relevance.