Middleton v Director of Public Prosecutions
[2019] ACTCA 24
•6 September 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Middleton v Director of Public Prosecutions |
Citation: | [2019] ACTCA 24 |
Hearing Date: | 26 August 2019 |
DecisionDate: | 6 September 2019 |
Before: | Loukas-Karlsson J |
Decision: | Leave to appeal out of time is granted. |
Catchwords: | APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – PRACTICE AND PROCEDURE – application for leave to appeal out of time – fresh evidence – where evidence of the extent of applicant’s medical condition not before the sentencing judge – where explanation for delay – whether possible miscarriage of justice had occurred – leave granted |
Legislation Cited: | Crimes Act 1900 (ACT) ss 55, 61 Crimes (Sentencing) Act 2005 (ACT) s 33 |
Cases Cited: | Baladjam v R [2018] NSWCCA 304; 341 FLR 162 Betts v R [2016] HCA 25; 258 CLR 420 Carter v The State of Western Australia (No 2) [2015] WASCA 59 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Khoury v The Queen [2011] NSWCCA 118; 209 A Crim R 509 R v Hensley [2004] NSWCCA 228 Springer v The Queen [2007] NSWCCA 289; 177 A Crim R 13 |
Parties: | Peter Middleton (Applicant) The Director of Public Prosecutions (Respondent) |
Representation: | Counsel D Barrow (Applicant) S Drumgold (Respondent) |
| Solicitors McKenna Taylor (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 20 of 2019 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Elkaim J Date of Decision: 6 July 2018 Case Title: R v Middleton Citation: [2018] ACTSC 198 Court File Number: SCC 283 of 2017 |
LOUKAS-KARLSSON J
Background
On 6 July 2018, Peter Middleton (the applicant) was sentenced by Elkaim J after pleading guilty to:
(a)five counts of sexual intercourse with a young person, contrary to s 55(1) of the Crimes Act 1900 (ACT) (Crimes Act); and
(b)four counts of an act of indecency with a young person, contrary to s 61(1) of the Crimes Act,
(R v Middleton [2018] ACTSC 198 (Middleton)).
The applicant received an aggregate sentence of 7 years imprisonment with a non-parole period of 5 years.
On 3 August 2018, the 28 day period for the filing of an appeal against the sentence imposed expired: Court Procedures Rules 2006 (ACT), r 5405 (Rules).
On 24 May 2019, the applicant filed an application to the Registrar for leave to appeal out of time. On 19 June 2019, that application was refused pursuant to r 5510 of the Rules.
On 2 July 2019, the applicant filed the application presently before this Court to grant leave to appeal out of time. Pursuant to s 37J(1)(b) of the Supreme Court Act 1933 (ACT) the Court of Appeal may be constituted by a single judge to consider an extension of time to institute an appeal.
Applicant’s Submissions
Delay: Legal Advice
The various steps taken by the applicant’s current solicitors to progress the appeal are detailed in the two affidavits of Thomas Taylor affirmed 24 May 2019 and 29 July 2019 respectively.
The first time the applicant’s legal representatives spoke with the applicant was on 21 November 2018. It was not until 10 December 2018 that McKenna Taylor received instructions from the applicant to act for him. However, it was not until approximately 19 February 2019 that McKenna Taylor received funds, arranged through the applicant’s superannuation fund, such that Associate Professor Rosenfeld could be engaged to prepare a report in relation to the applicant’s mental condition.
It was submitted that the lack of initial action by the applicant was explicable by reference to the diagnoses in the report of Associate Professor Rosenfeld, consultant geriatrician and physician, of dementia with frontal lobe executive dysfunction; accordingly, it was submitted to be unfair to hold the applicant to ordinary standards of a prospective applicant.
Moreover, it was noted that the applicant, who was unfamiliar with the criminal process and 76 years old at the time of sentence, had been told by his previous legal representative (Mr Wickens) that there was no utility in an appeal.
Delay: Further Evidence
The applicant further submitted that important and relevant evidence was not obtained prior to the sentence hearing and only became available on 14 April 2019. A number of the steps taken to obtain this evidence are outlined in the affidavit of Thomas Taylor affirmed on 24 May 2019. In submissions, the applicant highlighted the following aspects of the chronology:
(a)On 9 June 2018, a Dr Emma Fitzgerald, clinical neuropsychologist, provided Mr Wickens with a report which stated that the applicant may be suffering from a “Mild Neurocognitive Disorder” and recommended further investigation: see Middleton at [35].
(b)On 12 June 2018, Mr Wickens called the applicant’s general practitioner. In the applicant’s submission: “it appears a request was made by Mr Wickens for the applicant to be given [magnetic resonance imaging (MRI)] and a specialist appointment”. A tentative appointment was made with Dr Pazhvoor Shibu for 3 July 2018. It was noted by the general practitioner that Mr Wickens indicated a adjournment would be required if a “significant cognitive impairment” was confirmed.
(c)On 14 June 2018, the applicant underwent the MRI, the results of which were sent to Dr Shibu.
(d)On 6 July 2018, in the course of the sentencing proceedings, Mr Wickens indicated the applicant had an appointment with a doctor “this week” which was cancelled. No adjournment was requested.
(e)On 11 December 2018, the day after being formally engaged by the applicant, McKenna Taylor sent the MRI to Associate Professor Rosenfeld. The next day, Associate Professor Rosenfeld advised by telephone that the MRI suggested the applicant had a “brain disease”.
(f)Following delays resulting from funding arrangements and Associate Professor Rosenfeld being on leave over the holiday period, the professor was unable to attend upon the applicant at the Alexander Machonochie Centre until 8 March 2019 and produced a report on 14 April 2019.
It was submitted that the delay between 10 December 2018 and 14 April 2019 “was not as a consequence of any dilatory approach” by the applicant’s solicitors or “undue delay” by the professor. Moreover, it was submitted that the further delay from 14 April 2019 to 24 May 2019 was due to the necessity of prospects advice being required from counsel, who was briefed on 24 April 2019.
Associate Professor Rosenfeld’s report (Annexure F to the affidavit of Thomas Taylor affirmed 24 May 2019) dated 14 April 2019 relevantly contains the following opinion (at 7.1):
I have reviewed the actual MRI brain images.
The images indicate the presence of moderately severe vascular brain disease with atrophy (shrinkage), enlarged ventricles (increased ventricular size due to brain shrinkage), deep white matter disease and lacunar disease (micro-infarcts/stroke), and the presence of these changes in the frontal/parietal brain regions with associated frontal lobe atrophy.
Prejudice to the Respondent
The applicant submitted there would be very limited or no prejudice to the respondent if leave to appeal is granted. Although it was conceded some renewed distress might be caused to the victims’ family, no witnesses would be required to give evidence. It was submitted this distress could be ameliorated through advice to these individuals on the nature and limits of the proposed appeal.
Additionally, it was submitted that where no further evidence is required from witnesses, and where the applicant is still to serve a substantial period of his non-parole period and, further, where there is no prejudice to the respondent, considerations of finality should be a factor, but not determinative, of the application (T 10.25).
Merits of the Appeal
The applicant submitted that the sentencing judge made no finding that the applicant’s moral culpability was reduced or that he would experience more arduous conditions of imprisonment, or that his life expectancy was reduced. The applicant’s mental condition is a relevant consideration pursuant to s 33(1)(m) of the Crimes (Sentencing) Act 2005 (ACT).
The Court was referred to the principles from R v Verdins [2007] VSCA 102; 16 VR 269 at [32] as well as Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177], R v Hensley [2004] NSWCCA 228 at [33] and R v Israil [2002] NSWCCA 255 at [21] for the relevant sentencing principles in relation to how the mental condition of an offender can be taken into account in sentencing.
Noting these principles, the applicant submitted the sentencing judge had found: the offending was evidence of the applicant’s moral corruption, the applicant made glib comments regarding the victims and showed no genuine remorse, there was no real insight into the harm, significant punishment was required for specific and general deterrence, and community revulsion ought be reflected in the sentence (Middleton at [22], [29], [33] and [37]).
Contrasted against these findings, the applicant drew the Court’s attention to the following conclusions in Associate Professor Rosenfeld’s report:
(a)the applicant is suffering from a moderately severe brain disease with evidence of frontal lobe damage and signs on examination and testing of frontal lobe executive dysfunction (at 8.1);
(b)the effects of the disease included disinhibition and lack of insight into the nature, consequences and effects on the individual’s behaviour (at 8.1);
(c)the relevant impairments would have been present and progressive for at least a number of years and would have affected the applicant’s behaviour and symptoms between 20 January 2017 and 19 June 2017 (the period of offending) (at 8.1);
(d)the disease and impairments would, more likely than not, have affected the applicant’s ability to inhibit and recognise the consequences of his actions, to control or insightfully understand the impact of his actions on those affected, and understand the legal consequences of those actions (at 8.3.1, 8.3.2, 8.3.3);
(e)the disease is likely to continue and lead to worsening in his symptoms with considerable progression over the next two years (at 8.3.4, 8.5);
(f)it is more likely than not that the applicant’s time in custody would be more onerous due to his age, disease, frailty, balance disorder, insightlessness and disinhibition, need for stimulation and reduced ability to adapt to the changed environment (at 8.4); and
(g)the applicant’s life expectancy is, more likely than not, to be reduced by at least 50% to 5.35 years (at 8.8).
Fresh evidence
It was accepted that evidence available at the time of the sentence hearing would not ordinarily be admitted on appeal (Jovanovic v The Queen [2015] ACTCA 29 (Jovanovic)). However, fresh evidence can establish error (Betts v R [2016] HCA 25; 258 CLR 420 (Betts)) and the applicant referred to Bright v The Queen [2018] ACTCA 39, citing Browne v The Queen [2006] ACTCA 15, as to a “useful rule of thumb” for admitting fresh evidence, specifically (at [13]):
What must be established is:
(1) that the additional material sought to be put before this court is of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision;
(2) that, although its existence may have been known to the applicant, its significance was not realised by him at the time; and
(3) that its existence was not made known to the applicant’s legal advisers at the time of those sentencing proceedings.
The applicant referred to Betts for the proposition that, while the general rule is that an appellate court is to consider the material before the sentencing court and rehabilitation since being sentenced, this does not deny the ability to receive fresh evidence “to avoid a miscarriage of justice” (at [10]). Relevantly, in the present case, it was submitted the new evidence reveals the true extent of the applicant’s condition.
It was submitted that the applicant’s brain disease was directly relevant to a number of important considerations in the exercise of the sentencing discretion, including: explanation for the offending, impact on moral culpability, explanation of lack of insight and remorse, applicability of specific and general deterrence, the impact of incarceration, and the impact on life expectancy, particularly in light of his age and the level of care required for treatment. It was submitted “none of that information was available to his Honour at the time of sentence” (T 7.25).
In oral submissions, counsel for the applicant submitted that, irrespective of issues of competency of the applicant’s former counsel, and whether incompetence is or is not established, the possibility of a miscarriage of justice is the key consideration (T 6.10).
Ultimately, it was submitted the present case falls into the category of “exceptional” cases where evidence ought to be admitted on appeal (T 9.18).
Respondent’s Submissions
Delay
The respondent noted that the initial application was 9 months and 21 days out of time. Accordingly, it was submitted the applicant is required to establish “a very clear case of a miscarriage of justice to justify an extension of time” (Kelly v Director of Public Prosecutions [2015] ACTCA 55 at [38] (Kelly)).
The respondent submitted the delay should be viewed as two periods: the first from 6 July 2018 to 10 December 2018 (when the legal firm McKenna Taylor solicitors were ultimately engaged) and the second, from 11 December 2018 to 24 May 2019 (when the application for leave was filed).
It was submitted that the explanation for delay in the first period was “unsatisfactory” and that if Mr Wickens had told the applicant there was no value in appealing, it follows that the applicant was aware of his right to appeal.
In respect of the second period, it was submitted this was “inordinately long” and that the applicant’s legal representatives should have filed an application on 12 December 2018, after discussing the MRI with Associate Professor Rosenfeld, noting the nature of appeals often evolves after an application has been filed.
It was submitted that the delay needs to be considered in light of the importance of finality, and the impact reopening a matter would have on victims and families (citing Vojneski v The Queen [2015] ACTCA 44 (Vojneski)). It was submitted the present matter in particular “is likely to cause significant distress”. In oral submissions the respondent emphasised this, submitting an appeal “destroys [the] momentum” of progress made by these individuals in “rebuild[ing] their lives” (T 12.22).
Prejudice to the respondent
The respondent conceded no particular prejudice would be occasioned through a grant of leave (Respondent’s Summary of Argument at [13]), albeit noting absence of prejudice, by itself, is insufficient (Kelly at [14]).
Merits of the appeal
The respondent submitted there was a threshold issue as to whether the evidence was to be considered “fresh”, citing the reservations expressed by Simpson J (as her Honour then was) at [120] in Khoury v The Queen [2011] NSWCCA 118; 209 A Crim R 509 (Khoury) regarding expert reports which could, with reasonably diligence, have been obtained prior to sentencing (see also R v Fordham (1997) 98 A Crim R 359).
The respondent noted that the prospective appeal does not contain a ground in relation to incompetence of counsel and submitted that questioning the forensic decisions of counsel is a “fragile exercise”, particularly where evidence in relation to the mental condition of the applicant was sought and obtained at the time of sentencing (namely, Dr Fitzgerald’s report). Counsel chose to proceed to sentence on the basis of the information that was available rather than delay the matter further.
The respondent referred to the general proposition outlined in Jovanovic (above at [19]) and submitted that the fact that a matter should have been investigated further is not a satisfactory basis for admission.
Moreover, it was submitted that, even accepting Associate Professor Rosenfeld’s conclusions, they are not of such significance that it was likely to have any real bearing on the sentencing judge’s decision. In particular, it was submitted that new material “does not displace the position that the applicant’s conduct is clearly more explainable to his diagnosis as a paedophile rather than any neurocognitive disorder”. In addition, it was submitted that references to the applicant having a mild disorder at the time of the report are not sufficient to impact an assessment of his condition at the time of the offending (T 13.40).
It was submitted there was “virtually no chance” the evidence would upset the findings of general and specific deterrence, which are informed by a number of factors (T 14.18).
Ultimately, it was submitted the applicant had failed to demonstrate that any of the preconditions extracted above at [19] had been met, or that the present case is a very clear case of a miscarriage of justice so as to warrant an extension of time.
Applicant’s Submissions in Reply
The applicant submitted that establishing incompetence of counsel is not necessary in circumstances of miscarriage of justice. Relevantly, post-sentencing events can be admitted where error in the sentencing proceeding cannot be demonstrated (Springer v The Queen [2007] NSWCCA 289; 177 A Crim R 13 (Springer); R v Gaerlan [2014] QCA 145 (Gaerlan); Betts). In exceptional cases where compelling material was available but not tendered or appreciated, while not “fresh”, it may be received to avoid a miscarriage of justice (Mousavi v R [2019] NSWCCA 121 at [60], [85] (Mousavi); R v Clark [2017] QCA 318 at [14], Carter v The State of Western Australia (No 2) [2015] WASCA 59 at [46]-[55] (Carter)).
With respect to the submission that Associate Professor Rosenfeld’s “retrofitted” the MRI to the offending, it was submitted that this “is to misunderstand the relevance of expert opinion evidence”, noting the professor was well placed to determine the extent of any brain disease suffered by the applicant and well qualified to express an opinion on the relevance and significance of the condition. Such evidence was submitted to be highly relevant to a variety of sentencing considerations.
In respect of the respondent’s submission regarding the significance of the evidence, it was submitted there is “no equivalence in the material that’s now available with the material that was available at first instance” (T 17.33).
With respect to the first period of delay identified by the respondent, the applicant underlined and reiterated the submission as to the difficulty of holding the applicant to a standard “ordinarily expected of a prospective applicant” (Applicant’s Reply at [12]). With respect to the second period of delay, the following aspects of the timeline were highlighted:
(a)funds were not received into the trust account until 19 February 2019;
(b)Associate Professor Rosenfeld’s report was commissioned on 31 January 2019 and various necessary steps had been taken to advance the appeal prior to that date;
(c)until the report was received it was not possible to know if the proposed application had a reasonable prospect of success;
(d)once the report was received it remained necessary to brief counsel for an advice on the merit of the proposed application;
(e)to take the course suggested by the respondent would be to potentially needlessly involve the Court in a matter that may have never proceeded; and
(f)to have acted as the respondent suggests would also have not effected any actual expedition in the application, given the need to await Associate Professor Rosenfeld’s report.
Consideration
The parties accepted that the relevant principles to be applied were those summarised by Refshauge J in Merrilees v The Queen [2014] ACTCA 10 at [26] (Merrilees), applying the principles summarised in Parker v The Queen [2002] FCAFC 133 (Parker):
1. Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;
2. Action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished.
3. Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
4. However, the mere absence of prejudice is not enough to justify the grant of an extension; and
5. The merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
In my view, the principles set out in Merrilees and Parker are met in this case.
The applicant has established an acceptable explanation for the delay. I accept the explanation set out at [6]-[11] and [39] above.
As to prejudice, the prosecution has not asserted prejudice, conceding “The Crown does not assert any particular prejudice should the application be granted” (Respondent’s Summary of Argument at [13]). Nevertheless, I observe that the mere absence of prejudice is not enough to justify an extension of time: Kelly. While the grant of leave to appeal may be distressing to the victims, and must be considered (Vojneski), the authorities are clear that this factor alone cannot determine the application: see Kentwell v The Queen [2014] HCA 37, 252 CLR 601 (Kentwell).
As to the merits of the case and the question of fresh evidence, I have regard to the following.
It is not necessary to conclude, and I do not conclude, that the applicant’s former legal representative was incompetent.
In R v Smith (1987) 44 SASR 587 (Smith), King CJ elaborated on the basis on which evidence can be led of events post-sentence (at 588):
While the evidence sought to be admitted on this appeal in a sense establishes the occurrence of events occurring after the passing of sentence, it does so for the purpose of explaining the full extent and implications of the appellant's condition of health which existed at the time of sentence. I think that the authorities show that it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence.
In Turkmani v The Queen [2014] NSWCCA 186; 244 A Crim R 402 at [66], Beech-Jones J summarised examples where the principles had been held to apply (see also Baladjam v R [2018] NSWCCA 304; 341 FLR 162 at [222]):
Three examples of the application of this principle are as follows. Firstly where the offender was only diagnosed as suffering from a disease or condition after sentence but was infected or affected at the time of sentence (e.g. HIV/AIDS as in Bailey v R (1988) 35 A Crim R 458 at 462). Secondly where, although symptoms of a particular condition may have been present, their significance was not appreciated at the time of sentencing (Iglesias v R [2006] NSWCCA 261 ("Iglesias"); see Springer v R [2007] NSWCCA 289; 177 A Crim R 13 at [3] per McClellan CJ at CL) ("Springer"). Thirdly where a person was sentenced on the expectation that they would receive a particular level of medical care and attention in custody but they did not (R v Keir [2004] NSWCCA 106; Springer id).
In Khoury, Simpson J (as her Honour then was) underlined at [110]-[113] that the principle in Smith does not permit admission of evidence of circumstances which did not exist at the time of sentence.
It is clear on the authorities that evidence of post-sentencing events may be admitted as evidence in an appeal, even if error in the original proceedings on sentence cannot be demonstrated: Springer v The Queen [2007] NSWCCA 289, 177 A Crim R 13 at [3]; R v Gaerlan [2014] QCA 145; Betts v The Queen [2016] HCA 25, 258 CLR 420 at [10].
In exceptional cases where material was available but not tendered, or its significance was not appreciated, it has been held that new evidence that is not “fresh” may be received where it is necessary to do so in order to avoid a miscarriage of justice: Mousavi v R [2019] NSWCCA 121 at [60], [85], Clark [2017] QCA 318 at [14], Carter v The State of Western Australia (No 2) [2015] WASCA 59 at [46]-[55].
The new evidence is relevant to a variety of sentencing considerations. I accept that the evidence of the applicant’s brain disease is potentially relevant to a number of considerations in the exercise of the sentencing discretion, including:
(a)the condition may impact on an assessment of the applicant’s moral culpability;
(b)it may be capable of explaining his lack of insight into the seriousness of his conduct;
(c)it may be relevant to the applicability of both general and specific deterrence;
(d)it may be relevant to the additional hardship incarceration may occasion; and
(e)it may be relevant to the impact of the condition upon the applicant’s life expectancy.
In Parker, the Court concluded at [19]:
There will always be an onus on the applicant to explain the reasons for the delay – and the question of prejudice to the Crown cannot be overlooked. However, these and like matters cannot prevail if the Court is of the opinion that there is a reasonable probability that there might be a miscarriage of justice if leave is not granted.
Evidence was not available to the court at first instance. That evidence is now available. It is potentially relevant to a number of considerations in the exercise of the sentencing discretion as set out above.
I am therefore of the opinion that that there is a reasonable probability that there might be a miscarriage of justice if leave is not granted, applying the principles set out in Parker.
Additionally, it should be noted in this context that the prosecution referred to Kelly for the proposition that “where the delay is substantial the applicant needs to show the appeal is more than just arguable” (Respondent’s Summary of Argument, [6]).
It is appropriate at this juncture to set out the relevant statement from Kelly and the following statements of principle set out there at [14]:
8. The court, on considering an application for an extension of time within which to appeal, should not decide the appeal and, in an appropriate circumstance, an arguable case may be sufficient, though in the case of long delay it may be necessary to show that the applicant has a strong case.
9. Nevertheless, the application is to be determined by the court’s view of the demands of justice in accordance with broad judicial discretion and not by the mere application of the verbal formula.
10. In particular, the court will look, above all else, to determine whether there has not been and will not be, if the application is refused, a miscarriage of justice which will always be an overriding consideration.
(emphasis added).
Thus, I find, to the extent necessary that, while the delay may be described as significant, the appeal is not merely an ‘arguable’ case (Respondent’s Summary of Argument, [6]). While noting in this context that in considering the application for an extension of time the Court does not decide the appeal.
In Kentwell the High Court considered comparable provisions in the NSW Criminal Appeal Act 1912 and underlined that the interests of justice will often pull in different directions, including consideration of the adverse effect on victims. Nevertheless, it was emphasised that the principle of finality does not provide a discrete reason for refusing to grant leave to appeal, stating at [32]:
The Act confers a right to appeal against conviction in stated circumstances and provides for an appeal against conviction and/or sentence with the leave of the Court. These provisions (among others) are exceptions to finality in the trial and sentencing of offenders. The principle of finality finds expression in the prescription of the time limit within which an appeal or an application for leave to appeal may be brought. The discretionary power to extend the time limit is a legislative recognition that the interests of justice in a particular case may favour permitting an appeal or an application for leave to appeal to be heard, notwithstanding that it was not brought within time. The interests of justice will often pull in different directions. As earlier noted, they may include consideration of the adverse effect on the victim, or on the community generally, occasioned by re-opening a concluded criminal proceeding. However, at least in the case of an out-of-time challenge to a sentence that is being served, the principle of finality does not provide a discrete reason for refusing to exercise the power.
As the High Court, in another context, observed in Smith v Western Australia [2014] HCA 3; 250 CLR 473 at [43], citing Lord Atkin in Ras Behari Lal v The King Emperor [1933] All ER 723 at 726: “finality is a good thing but justice is a better”.
In my view, leave to appeal should be granted.
Order
Leave to appeal is granted.
| I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Date: 6 September 2019 |
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