McVey v The King - [2024] VSCA 41

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…

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 McVey v The King

Details

AGLC: McVey v The King [2024] VSCA 41
Case: [2024] VSCA 41
Decision Date: 21 March 2024

CaseChat Overview and Summary

In the High Court of Australia, the applicant, McVey, appealed against a decision made by a lower court regarding his conviction for sexual offences against his niece. McVey was found unfit to be tried at the time of the original trial, but a jury later determined that he had committed the offences. McVey now seeks an extension of time to appeal against his conviction, arguing that he was unable to obtain legal representation due to his unfitness.

The primary legal issue before the court was whether McVey's application for an extension of time to appeal should be granted. The court considered whether McVey had provided a satisfactory explanation for the delay in seeking an extension and whether the proposed appeal had merit. The applicant argued that his unfitness and the subsequent delay in obtaining legal representation justified the extension. The court had to weigh the reasons for the delay against the importance of timely appeals in the criminal justice system.

The court found that McVey had not provided a satisfactory explanation for the delay in seeking an extension of time. The applicant had been aware of his unfitness and the need for legal representation for a significant period. Despite this, he did not take timely action to secure legal representation, resulting in the delay. Furthermore, the court found that the proposed appeal lacked merit, as it was unlikely to succeed based on the evidence presented in the original trial. Consequently, the court refused the application for an extension of time.

The court's decision was that the application for an extension of time to appeal the conviction was refused. The court held that McVey had not provided a satisfactory explanation for the delay and that the proposed appeal lacked merit. Therefore, the applicant's appeal against his conviction was not allowed.

Orders