JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2016
DATE OF JUDGMENT:	20 May 2016
CASE MAY BE CITED AS:	Marceta v Efandis
MEDIUM NEUTRAL CITATION:	[2016] VSC 265

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CRIMINAL LAW – Murder – Compensation – Application for compensation order – Application to extend the time within which an application for a compensation order may be made – Whether it is in the interests of justice to extend the time within which an application for a compensation order may be made – Delay – Explanation for delay – Prejudice – Whether any prejudice – Respondent’s financial circumstances – Sentencing Act 1991, ss 85B, 85C and 85D.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr E Rallis (Sol)	Stonnington & Zervas
For the Respondent	In Person

HIS HONOUR:

Introduction and background

On 10 September 2008, the respondent was found guilty of the murder of George Marceta in September 2004. On 28 November 2008, the trial judge sentenced the respondent to a term of imprisonment of 24 years with a non-parole period of 20 years.[1] On 20 August 2013, the respondent applied for an extension of time within which to file a notice of application for leave to appeal to the Court of Appeal against her conviction. That application was ultimately refused by the Court of Appeal[2] on 19 March 2014.[3] On 15 August 2014, the High Court refused the respondent’s application for special leave to appeal against the decision of the Court of Appeal.[4]
[1]R v Efandis [2008] VSC 508.
[2]Initially, the application was refused by the Deputy Registrar of the Court of Appeal. However, the respondent subsequently renewed her application before a bench of two judges of appeal.
[3]Efandis v The Queen (2014) 41 VR 456.
[4]Efandis v The Queen [2014] HCA Trans 182.

Section 85B of the Sentencing Act 1991 (‘the Act’) permits a person who has suffered any injury as a direct result of an offence to apply for a compensation order as described therein. Section 85C provides that an application for a compensation order must be made within 12 months after the offender is found guilty or convicted of the offence. Section 85D provides that a court may extend the time within which an application for a compensation order may be made ‘if it is of the opinion that it is in the interests of justice to do so’.

The applicant is the adult daughter of the respondent’s deceased victim. Since 1997, the applicant has been living permanently in Greece. On 29 April 2016, the applicant filed an application under s 85D of the Act for an extension of time within which to apply for a compensation order against the respondent.

The applicant’s evidence and reason for delay

In support of her application, the applicant has sworn an affidavit setting out relevant…

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 Marceta v Efandis

Details

AGLC: Marceta v Efandis [2016] VSC 265
Case: [2016] VSC 265
Decision Date: 20 May 2016

CaseChat Overview and Summary

In the case of Marceta v Efandis, the applicant sought a compensation order under the Sentencing Act 1991 following a murder conviction. The application was filed outside the prescribed period, prompting the need for an extension. The primary issue before the court was whether it was in the interests of justice to extend the time limit for making such an application, considering the delay and the reasons provided for it. The court had to weigh the explanation for the delay against any potential prejudice to the respondent and the applicant's financial circumstances.

The court examined the statutory provisions under sections 85B, 85C, and 85D of the Sentencing Act 1991, which govern the application for compensation in cases involving murder convictions. It considered the applicant's explanation for the delay, assessing whether it was satisfactory and whether the delay had caused any prejudice to the respondent. Additionally, the court took into account the applicant's financial situation and the respondent's ability to meet any compensation order. The court's decision hinged on balancing these factors to determine whether extending the time limit was warranted.

After evaluating the evidence and arguments presented, the court concluded that the application for an extension of time was not in the interests of justice. The delay was deemed significant, and the explanation provided was insufficient to justify the extension. Furthermore, the court found that the respondent would suffer prejudice if the application was allowed. Given these findings, the court dismissed the application. As a result, the applicant was not granted an extension of time to apply for a compensation order.

Orders