McVey v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0170

WILLIAM JAMES McVEY	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, TAYLOR and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2024
DATE OF JUDGMENT:	21 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 41
JUDGMENT APPEALED FROM:	DPP v McVey [2018] VCC 2168 (Judge Fox)

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CRIMINAL LAW – Appeal – Applicant charged with sexual offences against his niece – Applicant unfit to be tried – Jury found that the applicant had committed the offences – Application for extension of time within which to seek leave to appeal against conviction – No satisfactory explanation for delay – Proposed appeal without merit – Application for extension of time refused.

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Counsel
Applicant:		In person
Respondent:		Madam Prosecutor with Madam Junior Prosecutor
Solicitors
Applicant:	Unrepresented
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA
T FORREST JA:

An indictment filed in the County Court charged the applicant with committing an indecent act with or in the presence of a child under 16 (eight charges – charges 1 to 3, 5 and 6, and 9 to 11), and sexual penetration of a child under 16 (three charges – charges 4, 7 and 8).
On 29 August 2018, a jury found the applicant to be unfit to stand trial.[1] Subsequently, on 7 September 2018, a second jury found that the applicant had committed the charged offences.[2] Such a finding is subject to appeal in the same manner as if the applicant had been convicted of the offences in a criminal trial.[3]
[1]See s 12 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the CMI Act’).
[2]See s 17(1)(c) of the CMI Act.
[3]See s 18(3)(c) of the CMI Act.
In September 2020, and later in September 2022, the applicant sought to file documents to commence an appeal against the finding that he had committed the offences. On both occasions, the Registrar of Criminal Appeals rejected the documents for filing. In essence, the reasons that the documents were rejected were that they were substantially irregular, and did not comply with all requirements of the Rules[4] and relevant Practice Note.[5]
[4]Supreme Court (Criminal Procedure) Rules 2017 (‘Rules’).
[5]Practice Note SC CA 1: Criminal Appeals (‘Practice Note’).
On 1 December 2022, however, a Judge of this Court directed the Registrar to accept for filing an application under the applicant’s hand seeking an extension of time within which to file a notice of application for leave to appeal, together with associated documents. As a result, on 7 December 2022 the Registrar accepted for filing an application for extension of time to file an application for leave to appeal, and associated documents. Among the associated documents was a Notice of Application for Leave to Appeal Against Conviction (‘the first notice’).[6] The application for extension of time contained the following ‘grounds’:[7]
The reason I failed to file/ serve a notice within the prescribed time and the grounds upon which I make this application are;
1.   Due to the finding of by the jury in the County Court of Victoria that the applicant was deemed to be UNFIT TO BE TRIED.
2.   From the failure of Counsel representing the applicant to correctly present admission of evidence in the County Court Special Hearing, where a fair and open hearing would off allowed the applicant to seek a dismissal of all charges and an acquittal which has been denied.
3.   The failure of Counsel representing the applicant, whom would not file or serve a notice of appeal.
4.   It is from the unprofessional conduct of Counsel denying the applicant the right to correct a miscarriage of justice from the unbalance and unfair trial that the applicant underwent that Counsel representing the applicant would not correct the miscarriage of justice and Malicious prosecution that the applicant underwent.
5.   The applicant relies upon the evidence admissions in the affidavit and notice of application for leave to be accepted in evidence and admissions supporting this application to show merit of allowing the appeal to be granted.
[6]The associated documents included: a document 37 pages in length, which incorporated an unsigned notice of application for leave to appeal dated 5 February 2020 (pages 1 to 21), and an unsigned ‘written case’ (pages 22 to 37); four ‘exhibits’; and a National Australia Bank statement. Among the four exhibits were two unsigned statements, dated 7 and 25 September 2022 respectively (Exhibits 1 and 2), and a document styled ‘List of Incidents’, dated 5 February 2022 (Exhibit 3). No document was attached to the certificate identifying Exhibit 4.
[7]Spelling, grammar, punctuation and syntax as in original.
Later, on 12 May 2023, the Registrar also accepted for filing a Notice of Application for Leave to Appeal Against Conviction (‘the second notice’), together with written submissions — which we have treated as a written case[8] — and other assorted documents which, so far as we can see, lack relevance to any issue in the case.[9] The second notice contains the following:[10]
[8]See Rules, r 2.05(4)(b); Practice Note, [9.2].
[9]Among the documents were several tracts apparently authored by the applicant, bearing the following titles: Divine Healing and how God Heals People; Israel Prophetic Future; The Atonement and the Operation of God; The Minister; The Research Study; The Stone Kingdom; and You must be born again.
[10]Spelling, grammar, punctuation and syntax as in original.
I, William James Mc Vey have not been convicted of the 11 historic sex offence indictment.
The jury found Mr. Mc vey had committed all the offences as charged.
It is important to note that the jury’s finding of having committed the offence charge’ is not the same as a verdict of guilty.
It is a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates.
I am living at [address given].
1. I WISH TO APPEAL to the Court of Appeal under Section 313 of the Criminal Procedure Act 2009 for an extension of time within which to file notice of appeal for leave to appeal to the Court of Appeal under Part 6.3 of Chapter 6 of that Act, under Section 18(3), Section 274, Section 276, Section 326A of the Criminal Procedure Act 2009 Breach of the Evidence Act 1959 Section 141. Breach of the Summary offence Act 1966. Crimes Act 1959 Section 314, Perjury Section 314(1) amended by Nos 49/1991 Section 119(1) (Sch. 2 item 59), 48/1997. Section 60(1) (Sc. 1 item 85) Section 314(3) amended by No.6/2018 Section 63, Section 68 (Sch. 2 item 35.2).against my conviction (particulars of which are set out below).
TAKE NOTICE that I apply to the Court of Appeal for leave to appeal against my conviction on the ground(s):
2.   Judicial Misconduct.
3.   Violation of the Judges obligation of impartial conduct.
4.   Conduct prejudicial to the effective and expeditious administration of the business of the courts.
5.   Falsification of facts at summary judgment.
6.   Having improper discussions with parties for one side in a case, treating in a demonstrably egregious and hostile manner, violating other specific mandatory standards of judicial conduct, such as judicial rules of procedure or evidence.
7.   Misfeasance in public office, exercising targeted malice exceeding te judges powers.
8.   Wrongful Act (see: Daugherty v Ellis, 142 W. Va at 340)
9.   Doing an act that has no legal right to do, exceeds authority abuse of powers (at 351-358)
10. Guilty of Malfeasance. (97s.E.2d.33 42-43 (W.Va. 1956).
11. Removal of material evidence by Mr. [name] Solicitor of [name] Solicitors Sunshine at the lower jurisdiction being Melbourne Magistrate Court of Victoria by solicitor representing accused in denying material evidence to be considered by the court that shows that several sexual aggravated assaults occurred against Mr Mc Vey by the complainant and another associate of the complainant.
12. Finding of the County Court of Victoria that the Applicant was deemed UNFIT TO BE TRIED.
13. Failure of counsel representing the applicant to present evidence where a fair and open hearing would off allowed the applicant a right of dismissal of all charges and an acquittal which has been denied.
14. Failure of counsel to file or serve a notice of appeal during the special hearing and prior to the sentencing hearing.
15. Unprofessional conduct of Counsel denying the applicant the right to correct a miscarriage of justice from the unbalanced and unfair trial that the applicant underwent in that Counsel representing the applicant refused to correct the miscarriage of justice and Malicious prosecution that the applicant underwent.
16. Fresh evidence obtained by Mrs [name] in discovering evidence that the applicant was abused and is innocent of all charges as stated quote “I found evidence of what they have been doing to you and that the false allegations made against the applicant never occurred”. End quote.
17. The jury’s finding of having committed the offence charge’ is not the same as a verdict of guilty. It is a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates.
18. Denial of admission of evidence resulting in a miscarriage of justice.(see Middleton v Middleton 2 FCR 1984). Division 7 Circumstances involving lack of capacity 7.3 Mental impairment, 1) A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:
1.(a) the person did not know the nature and quality of the conduct; or
2.(b) the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or
3.(c) the person was unable to control the conduct.
(2)The question whether the person was suffering from a mental impairment is one of fact.
(3)A person is presumed not to have been suffering from such a mental impairment. The presumption is only displaced if it is proved on the balance of probabilities by the prosecution or the defence that the person was suffering from such a mental impairment.
(4)The prosecution can only rely on this section if the court gives leave.
(5)The tribunal of fact must return a special verdict that a person is not guilty of an offence because of mental impairment if and only if it is satisfied that the person is not criminally responsible for the offence only because of a mental impairment.
(6)A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element but may rely on this section to deny criminal responsibility.
(7)If the tribunal of fact is satisfied that a person carried out conduct as a result of a delusion caused by a mental impairment, the delusion cannot otherwise be relied on as a defence.
(8)In this section: mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
(9)The reference in subsection (8) to mental illness is a reference to an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli. However, such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
19. Section 23 provides for the effect of a finding of not guilty because of mental impairment.
20. Part 4 provided for one of the fundamental concepts with which a special hearing is concerned, it further provided for the evidentiary framework within the question of mental impairment is to be evaluated, it provides for the consequences of a finding of not guilty because of mental impairment whether made at trial or at a special hearing.
21. Failure to present several Psychiatric reports during the special hearing, which would resulted in a finding of not guilty under the Crimes impairment Act 1997 No 65 of 1997 Part 3 Special Hearings. Division 7/7.3 Mental Impairment.
22. Standard of proof fundamental to the question is when the Jury determines that a person is not guilty of the offence because of mental impairment upon a special hearing held pursuant to Part 3 on the balance of probabilities I accordance with Section 21(2) contained in Part 4 of the Act.
23. Breach of the Evidence Act 1959 Section 141. Wilful ad corrupt perjury in providing a statement to police as such as in making perjuriously statements to the Victorian Police breach the Section 141 of the Evidence Act 1958.
24. Breach of the Summary offence Act 1966. From falsely making a false statement and having police resources abused.
In the document that we have treated as a written case, accepted for filing on 12 May 2023, under the heading ‘REASONS FOR THE DELAY OF SEALING THE COURT BOOK.’, the applicant advanced a further explanation for the delay in filing relevant documents (no part of which was supported by evidence):[11]
[11]Spelling, grammar, punctuation and syntax as in original.
The registry of the Supreme Court of Appeal self-representative registers had refused to seal the court book in 2020.
The registry first stated that they don’t have the Court book then the registry stated that they have lost the court book and cannot find it and wouldn’t engage in finding it.
Several months later after enquiries were made to the registry of the Supreme court of Appeal, the court book all of a sudden was discovered and returned and then perused by criminal lawyers, corrected and returned to the registry and was filed again to be sealed.
Then again the Supreme Court registry stated that they have lost the court book and then several months later found it.
In all this the Supreme Court registry were deliberate in delaying the sealing of the court book within the required time frame,
It wasn’t until after the VCAT hearing in 2020, which the VCAT member made a decision that the appellant did not need a limited administration order that the appellant is fit to make his own financial and legal decision, then the member dismissed the application and denied the need to apply for a limited administration guardian order upon the appellant.
It was once the appellant’s legal capacity was returned from a VCAT hearing allowing the appellant to file a documents with the court as a self-representative
The appellant’s solicitor litigation guardian refused to act in 2018 on the appellants behalf even though being a solicitor in criminal law.
It wasn’t until the court book was discovered that the appellant requested under the Supreme Court rules that a residing Justice to look at the court book and after doing so the Judge directed the court book to be sealed.
Case No S EAPCR 2022 0170.
The Appeal opens with and relies upon the ruling held in “Middleton v Middleton 2FCR 1984 that held that “No judge can make a final ruling, unless all the evidence has been provided to the court for the judge to present the findings in the matter before the court.”, Halsbury Rules of Law.
This goes to a jury as well.
The prosecution has made no remarks or reference to this point of a question of law in the submission filed on 20/04/2023.
The prosecution makes no remarks or submissions as to the breaches in relation to the Evidence Act 1958, Section 141 and Section 53 of the Summary Offence Act 1966 which the complainant has breached ad committed criminal acts against these statutory provisions of law.
Crimes Act 1958 section 314 Perjury, Section 314(1(amended by Nos 49/1991, Section 119(1)
(Sch. 2 item 59), 48/1997, Section 60 (1) (Sch. 1 Item 85).
Section 314 (3) amended by No 6/2-18.ection 63, Section 68 (Sch. 2 item 35.2).
I believe I have addressed the failure of the prosecutions filing in relation to the appeal
During the hearing in this Court on 13 March 2024, the Court asked the applicant whether what he had set out in his written case, extracted immediately above, was accurate. He answered:
To the best – um yes, um yep. I was trained by Victoria Police as a private investigator, Cert IV investigative services trained by detectives at the Victoria Police Academy and so forth and ah I was trained to give evidence and file evidence in a court of law and ah that’s [sic] evidence is correct.
Further attempts by the Court to have the applicant provide a rational explanation for the delay were met with lengthy, discursive, largely unresponsive and (at times) incoherent ‘submissions’. The following passage from the transcript is illustrative:
PRIEST JA: I just want to understand, are you suggesting that the conduct of the Registry was deliberate?
APPLICANT: Well I can only assume. I hate assumption. Assumption is the worst thing you could ever do in any dealing with facts, but in relation to what occurred, it just doesn’t seem normal for a person who files documents in a Registry, that they go missing for six months, then they get found, then they get corrected, then they get returned, then they get misplaced again and ah eventually when they were found, they ah they refused to seal it and then I relied upon the Rules of the Supreme Court to ask the residing judge to look at the application who then gave directions to the Registry to seal it for me to be here today. That’s the continuity of things, events that occurred. It’s unreal. It’s not normal.
PRIEST JA: So I want to make sure I do understand.
APPLICANT: I know it’s ah – it’s just not normal for people to be treated that way, I think, in our justice system.
PRIEST JA: Well Mr McVey, the material that we have rather suggests that the Court of Appeal Registry in not accepting your documents for filing were complying with the relevant Rules of Court and the relevant Practice Direction. So rather than there being any deliberate attempt by the Registry to prevent you from filing your documents, that is deliberate in the sense that there was no lawful reason for them refusing to accept your documents. The material that we have available to us suggests that the Registry staff were acting perfectly properly and following the law.
APPLICANT: I just recently – five weeks ago, filed an application in this Court, this very same Court again – when um Justice Davis, Tate and President Maxwell, I won my case in 2012 and orders were made in my favour and the – the authority VWA and the agent refused to comply with those orders. So I sought to impose – well it’s still another order I can impose to enforce that order but I sought um to have them be answerable for contempt of Court. And so I took them into the ACCS and the member from there said she’s highly disturbed of the abuse towards me by the authority and the agent and she’s very highly disturbed that the authority and the agent refused to comply with the orders of the Court of Appeal and that they lost a new claim form that her Honour Justice Davis ordered to be now the claim form for a common law procedure would be fulfilled. And um you couldn’t – you just couldn’t write the script, your Honour, for what’s occurred.
So the Registry again, in that application, from what you just said then to me, they went and filed my application in relation to me wanting to enforce ah – to get a Court order for contempt of Court and for them to obey the orders of the Court of Appeal, they turned around to Registry and filed an application for what you just said that the Registry has their right and what their functionality is in administrative law. And I knew nothing about that, and so here I am, waiting for, similar to this matter, for the case to be looked at and sealed and then come to court, file the court book, affidavits, they had a whole hearing without my knowledge, without being able to file a court book, able to file an affidavit and the exact same things that you just said to me then about the functionality of administrative practices of the Registry came in their favour in that matter and dismissed – and refused my application. So I understand what you’re saying, clearly.
PRIEST JA: Well none of what you’ve just said really responds to what I was inviting you to address.
APPLICANT: I’m just trying to show bias and prejudice by them.
PRIEST JA: You’re trying to show prejudice by the Registry?
APPLICANT: Yeah and – and maybe somebody – somebody has – has gone and taken an application to seek an order for contempt of Court from failing to file an order of the Court of Appeal. You know, in law school, at UNE University, when we did law, they taught me that this is the highest jurisdiction in our State and everything trickles down that they’ve all got to comply with through to different jurisdictions and they don’t. So I have to go to the High Court to impose that order that I won in 2012, that this Court made that the authorities, the WorkCover Authority and the agent, they’re just – they don’t care what you say and what you write but it’s contempt of Court. And so all of this is – is um compiling upon me. Um being apologised by his Honour. His Honour Frank Saccardo, honourable man, you know. He was a nice person and um – and I couldn’t thank him enough for what he did and unfortunately, he passed away.
PRIEST JA: What I’m asking you to address - - -
APPLICANT: Well I can only assume that they deliberately did it.
PRIEST JA: I’m sorry, Mr McVey, we will proceed more speedily if you just listen to what I say.
APPLICANT: Yep.
PRIEST JA: And respond to what I say. What I’m inviting you to address is the fact that from what we have on the material before us, it seems pretty clear that the Registry in not accepting your documents for filing were complying with the relevant Rules of Court.
APPLICANT: Yep.
PRIEST JA: And the relevant Practice Direction because your documents just didn’t comply with the Rules or the Practice Direction. Now, you’ve attributed to the Registry, as far as I can tell, some improper purpose in dealing with your case.
APPLICANT: I - - -
PRIEST JA: What I’m asking you to address is the very clear impression that one gains from looking at the material that the Registry was simply complying with the relevant Rules of Court and the Practice Direction.
APPLICANT: When I um did all my law studies and sat in the Supreme Court library for three months reading through everything and working my way through the King’s Bench, Queen’s Bench, laws, and worked my way upstairs. Um Canadian law was awesome, reading all the Canadian law. Um I got a good idea of – of procedure and what a justice – what you do. You have two questions to me. Why am I before you today and what is it that I’m complaining about? And um in relation to the complaining, I’m complaining about being um a delay occurred, documents disappeared – how does the Registry lose a court book for six months and then all of a sudden find it? Then when I get it fixed and return it, they lose it again? I can’t answer that question for what occurred within that Registry’s administrative practice but that’s what occurred and that’s what I wrote to the best of my knowledge as a trained by professional people by Victoria Police to give evidence and file evidence and to – and as Justice Eames said to me, he said to me in this Court, he said, ‘William, if we don’t have it in front of us, we can’t consider it’. I thought right, that’s good advice.
So all I can do, to the best of my ability from how I’ve been trained to give evidence, file evidence, obtain high distinctions, put in a police exhibit, (indistinct) Inspectorate (indistinct) to give you the facts that I’m relying upon and the facts speak for themselves in law.

The alleged offending embraced by the charges on the indictment was said to have occurred between 1 January 2004 and 12 October 2005, when the applicant was aged between 42 and 44 years.[12] In each case, the applicant was alleged to have perpetrated a sexual offence against a niece, aged between six and eight years. The sexual activity alleged included the applicant sucking and licking the complainant’s nipple (charges 1 and 2); touching her vagina (charges 3 and 11); licking her vagina (charge 4); putting her hand on his penis (charge 5); rubbing his penis against her buttocks (charges 6, 9 and 10); penetrating her anus with his penis (charge 7); and penetrating her mouth with his penis (charge 8).
[12]His date of birth is 19 May 1961.
A trial of the charges was due to commence in August 2018. Prior to the trial commencing, however, a question concerning the applicant’s fitness to stand trial was raised and an investigation was conducted pursuant to Part 2 of the CMI Act. The parties agreed the applicant was unfit to stand trial, and the judge conducted a special hearing with a jury, during which a forensic psychiatrist, Dr Grant Lester, gave evidence. Dr Lester said that the applicant reported having been treated by another psychiatrist over a period of 15 to 16 years with a range of medications, including olanzapine, an antipsychotic medication. Dr Lester concluded:
I believe Mr McVey has a serious enduring psychotic illness called schizophrenia, which is certainly a form of mental impairment. … I believe him to be unfit to stand trial. … On the basis of delusional beliefs, delusional memories, persecutory and conspiratorial delusions about both the allegations, the motives of the victim and others who may have conspired with the victim to cause her to make these allegations.
In the event, on 29 August 2018, as we have mentioned, the jury found the applicant, now aged 62 years, unfit to be tried. Thereafter, the judge conducted a special hearing with another jury between 30 August and 7 September 2018; and, as we have also mentioned, that jury found that the applicant had committed the offences charged.
On 8 November 2018 and 11 December 2018, the judge conducted a disposition hearing under Part 5 of the CMI Act; and, on 19 December 2018, the judge imposed a non-custodial supervision order (‘NCSO’).[13] Between 29 and 31 January 2020, the judge conducted a review of the NCSO; and, on 4 March 2020, the judge revoked the NCSO.
[13]Pursuant to s 11 of the Sex Offenders Registration Act 2004, the judge also placed the applicant on the Sex Offender Register for life.
Since he was placed on the NCSO on 19 December 2018, the time limit within which he was required to file a notice of application for leave to appeal — 28 days — expired on or about 16 January 2019.[14]
[14]See s 275(1) of the Criminal Procedure Act 2009.
The principles that govern an application for extension of time were set out in Madafferi:[15]
The applicant carries the burden of persuading this Court that an extension of time should be granted. When considering the application, it must be acknowledged that time limits exist for sound reasons. Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition (consistently, of course, with the imperative of correcting substantial miscarriages of justice).[16] The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal.[17] Although the exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances of the case,[18] the length of the delay — and the reasons for it[19] — and the prospects of success should the extension be granted,[20] are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise.[21] Thus, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the court may incline towards granting an extension. Where the merits of the proposed appeal are very poor, however, even a satisfactory explanation for the delay might not justify an extension.[22] The discretion must, as we have said, be exercised according to the individual facts of each case.[23]
[15]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
[16]Jopar v The Queen (2013) 44 VR 695, 707 [59] (Priest JA) (‘Jopar’).
[17]Ibid 707 [60].
[18]Kentwell v The Queen (2014) 252 CLR 601, 613 [30] (French CJ, Hayne, Bell and Keane JJ).
[19]Ibid 614 [31].
[20]Ibid 614 [33]. See also Rapovski v The Queen [2017] VSCA 175 [25] (Priest JA).
[21]Jopar (2013) 44 VR 695, 707 [60].
[22]Ibid.
[23]Ibid.
As may readily be gleaned from the grounds contained in the application for an extension of time,[24] and from his oral and written submissions,[25] the applicant has advanced no satisfactory explanation for his failure to file an application for leave to appeal in a timely manner. Even making due allowance for the difficulties under which the applicant might be assumed to be labouring, no adequate explanation has been proffered for the length of the delay or the reasons for it.
[24]See [4], [6] and [7] above.
[25]See [8] above.
Moreover, as even a cursory reading of the first notice and the second notice (and the submissions filed with them) makes plain, the putative appeal is so devoid of merit that it would be futile to grant an extension of time. So far as those documents are concerned, we express our gratitude to counsel for the respondent who, in written submissions dated 20 April 2023 — filed in response to the first notice and accompanying submissions — and in later written submissions dated 6 October 2023, filed in response to the second notice and written case — endeavoured to distil from a ‘jumble of gobbledygook’[26] coherent grounds and supporting submissions, and thence to demonstrate why the grounds and submissions so distilled were completely bereft of merit.
[26]To borrow from Bradley v The Crown [2020] QCA 252 (Sofronoff P, with whom Mullins JA and Boddice J agreed). See also Taylor v The Queen [2021] VSCA 131, [15] (Priest and Beach JJA); Holt v The King [2023] VSCA 163, [12] (Priest and Niall JJA); Palmer v No Respondent [2023] VSCA 322, [18] (Beach JA).
In the circumstances, it is unnecessary to recapitulate the submissions made by the respondent’s counsel. It is enough to say that we agree with them. In particular, having read the material relied upon, we are absolutely satisfied that there is no substance in the contentions — whether express or implied — that any incompetence on the part of the applicant’s counsel occasioned a miscarriage of justice; that there was any misconduct by the prosecution (whether by false arrest; procedural or other failures relating to the applicant’s interview with police; misconduct by the prosecutor in leading evidence from the witness Ruth Smart; or in the prosecutor failing to lead relevant, exculpatory evidence or expose perjury); that the conduct of the special hearing was unbalanced or unfair; that the judge’s conduct of the special hearing was otherwise unfair or attended by misconduct; that the verdict of the jury at the special hearing was unreasonable or cannot be supported by the evidence; or that there is relevantly any fresh evidence which might support a defence to the charges.
Indeed, the oral submissions made by the applicant established beyond any doubt that the central underpinnings of the putative appeal are so utterly preposterous that it would be completely pointless to grant an extension of time. Thus, in the course of the hearing in this Court, the applicant referred to a memorandum of advice provided by counsel concerning the merits of an appeal, provoking the following exchange:
PRIEST JA: Well hang on. What’s this document?
APPLICANT: It’s a memorandum. I’ve been asked to – I’d been asked to advise on the prospects of appeal of a special hearing held on 29 August 2018, on 7 September 2018 before [the trial judge].
PRIEST JA: Who asked - - -
APPLICANT: The solicitor who acted for me after [trial counsel] and he refused to introduce evidence and allow my – and he agreed with um [the trial judge] giving directions to the prosecution – OPP prosecutor to not allow the grandmother to give her evidence otherwise it would ‘throw the baby out with the bath water’, she said, and I could not believe my ears hearing that. I said ‘excuse me, you’re talking about a person’s life here and you’re directing – giving directions to the OPP and to [named] defence counsel, to not allow OPP witness to give her full evidence in the court because it’ll throw the case out the door’.
PRIEST JA: The document that you’ve got in your hand.
APPLICANT: Yep, the memorandum.
PRIEST JA: Would be covered by legal professional privilege.
APPLICANT: Okay.
PRIEST JA: If you tell us about its contents, you’re going to waive that privilege.
APPLICANT: Well I um – as a – as um a minister of religion and teacher of righteousness, I don’t believe in – I like international law. I think after the Nuremburg Trials and the Russians told the British and Americans you take your Westminster law somewhere else, we’re doing it – we put everything on the table, so nothing’s hidden. I think that’s the best law that is on the planet. I – and I do everything in that context of following international law procedures and um yeah, I have nothing to hide but this – this document here, the finality is going to be arguably in favour of the defence – of the prosecution, for what she sought, but I wasn’t aware at the time that the transcripts in here, my mum’s and [the complainant’s father’s] transcripts have been edited, deleted and tampered with which breaches the Commonwealth Crimes Act s 317 1900. You can’t do that. You can’t go and delete, tamper and – and – and edit transcripts that we’re relying upon a person’s life in a court of law to be judged and considered and um that’s why I quote the Middleton v Middleton case. If a judge does not have all the facts before him, his judgment doesn’t stand.
The applicant then went on to explain that the main particular of defence counsel’s alleged incompetence was his refusal to advance a case that the applicant was the victim of a sexual assault by his niece, and his sister (who was also a very young child). It is self-evident from the passage set out below that the applicant’s contention that counsel was incompetent could never succeed:
APPLICANT: … So I’d get up on a Saturday morning and go and shower and shave and so forth, come out of the bathroom and go downstairs. This one morning, I get up and [the complainant’s father] standing in the doorway totally naked, butt naked, back to me and I’m going ‘what’s he doing?’. Now, [defence counsel] wouldn’t bring this up when I told him about his um – I told Dr Jagoda about it and if you that happened, I always told Dr Jagoda, he was being my doctor since I was a baby, or a child and ah – and so I said ‘that’s not conduct unbecoming for a father’, cause when I walked down the stairs, I thought I hope the kids are not in the room for whatever he was doing and then all of a sudden I hear [the complainant] say ‘Daddy’, I thought oh my god, what’s he doing to his daughter. So I walked out and kept walking to Footscray, I didn’t know what to do. That’s when I threw him out after that and then when I threw him out, he says ‘whatever happens in Seddon, stays in Seddon’.
Now, he’s got a private investigator’s licence, a private um what do they call it, private um protection person. Gun licence. And I ain’t gonna get in a hassle with a narcissistic lunatic and ah whatever he was doing, his predatory conduct and then he’s got the kids came and attacked me, both [the complainant] and her girlfriend and I thought ‘what’s going on here’, you know. ‘Excuse me, I’m asleep, you can’t attack me while I’m asleep’.
PRIEST JA: Attacked you in what sense?
APPLICANT: Um there’s a condition, your Honour, that men have that um I didn’t know about it, that it’s called nocturnal enuresis, e-n-u-r-e-s-i-s, n-o-c-t-u-r-n-a-l e-n-u-r-e-s-i-s, NPT for short. Nocturnal penile tumescence as they are correctly called are spontaneous erections that occur during sleep. They normally occur three to five during the sleep, cause I was trying to work out how the hell did she do what she was doing when I woke up and she was aggravatingly sexually assaulting me while I was asleep.
PRIEST JA: Who was doing this?
APPLICANT: [The complainant].
PRIEST JA: How old was [the complainant]?
APPLICANT: Eight years of age at the time. She’s come into the room, jumped in the bed and the only way she could do what she did was that ah – ah NPT occurred and she – cause she slept with her father and her brother. So they’re going to have NPT’s occurring and when [defence counsel] asked her about um she goes, ‘yeah, I know about that’ and he sort of went you know, talked to the judge and you know for her conduct and misbehaviour and so um yeah, that’s what happened. So that’s how – I couldn’t work out how was she able to um aggravatingly sexually assault me when I was asleep. I didn’t know about that condition and that functionality and no one wanted to present it and question her and [defence counsel], when I told him about it, he said, ‘this is how he spoke to me’, he said ‘I ain’t gonna be tailing some child who’s sexually assaulted you’. I said ‘if you don’t, you’re going to have what she said to be taken in as evidence and you’re not going to cross-examine it or question and expose the for what he did wrong, being naked, what she did and assault me and what [the applicant’s sister] did downstairs when the four of them were all downstairs and I got assaulted’.
PRIEST JA: So just - - -
APPLICANT: That’s what happened, it’s amazing, you know. I’m glad I can get it out.
PRIEST JA: Just so that I understand what you’ve just said, are you saying that you gave instructions to [defence counsel] to put to your niece, [the complainant] - - -
APPLICANT: And my sister.
PRIEST JA: - - - and your sister, which sister?
APPLICANT: [Named].
PRIEST JA: [Named]. You gave instructions to [defence counsel] to put to [the complainant] and your sister that they had sexually assaulted you.
APPLICANT: That [the complainant] had, and [named sister].
PRIEST JA: [The complainant] had, when [the complainant] was eight years old.
APPLICANT: Yep, she was very promiscuous.
PRIEST JA: So your promiscuous eight year old niece had sexually assaulted you.
APPLICANT: Yep.
PRIEST JA: When you were – how old were you?
APPLICANT: Um what are we in?
PRIEST JA: You were in your 30s.
APPLICANT: I was 34 – 31 – no, 33 – 34. Um 2005 – 2004, I was in the Supreme Court. He wasn’t living with me, that’s why that date’s wrong, to refer to 2004. 2004, October, I was in the Court of Appeal, then he came, then it was after Christmas that the kids came to the house in 05 and then I became their babysitter and then eventually through 2005, it was about six or seven months he was only there and after all these things happened, I – I threw him out.
PRIEST JA: Anyway, you say that you gave instructions to [defence counsel].
APPLICANT: That’s correct.
PRIEST JA: To put to [the complainant] that when she was an eight year old, she sexually assaulted you - - -
APPLICANT: Twice.
PRIEST JA: - - - in an aggravated way and she was able to accomplish that sexual assault because you were suffering from nocturnal penile tumescence.
APPLICANT: I was asleep. That’s the only way I can work out how she was able to do what she did.
PRIEST JA: Is that what you’re saying, they’re the instructions you gave to [defence counsel]?
APPLICANT: Well that’s what I’ve discovered from doing my biological studies of how that can occur.
PRIEST JA: Mr McVey.
APPLICANT: Yes, your Honour, that’s right. That’s what happened.
PRIEST JA: You gave those instructions to [defence counsel].
APPLICANT: Yep.
PRIEST JA: And [defence counsel] told you that he refused to - - -
APPLICANT: He refused to bring – he refused to challenge an eight year old’s conduct of promiscuity and aggravated sexual assault. Prior to that incident, there was a further incident - - -
PRIEST JA: Do you rely on that as being part of this - - -
APPLICANT: I can only share with you what I – what happened, your Honour.
PRIEST JA: Please, Mr McVey.
APPLICANT: I don’t understand when you say - - -
PRIEST JA: Do not talk over the top of me again.
APPLICANT: Sorry, okay.
PRIEST JA: Are you relying on that as part of this allegation that [defence counsel] was incompetent in the way he defended you?
APPLICANT: Yes, that’s correct, I think I addressed it in the – in the – in the application, your Honour.
The flavour permeating the applicant’s oral submissions in this Court may be gleaned from the passages extracted above. Self-evidently, they were wholly bereft of any substance. In those circumstances, it is unnecessary to say anything more about the complete and pervading lack of merit attending the applicant’s case.
For the foregoing reasons, the application for an extension of time will be refused.

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[2024] VSCA 41

21 March 2024