Mitchell v The Queen - [2022] VSCA 32

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 273

THOMAS MITCHELL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, BEACH and SIFRIS JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 February 2022
DATE OF JUDGMENT:	15 March 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 32
JUDGMENT APPEALED FROM:	[2019] VCC 305 (Judge Smallwood)

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CRIMINAL LAW – Appeal – Conviction – Application for extension of time to file application for leave to appeal – Applicant convicted of aggravated burglary and rape – Whether evidence established beyond reasonable doubt that applicant entered premises as a trespasser – Whether evidence established beyond reasonable doubt that applicant anally penetrated complainant – Whether any error in bad character direction given by judge – Whether judge’s criticisms of defence counsel address undermined jury’s view of defence counsel’s credibility or competence – Proposed grounds of appeal not reasonably arguable – Explanation for delay unsatisfactory – Futile to grant extension of time – Application for extension of time refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr L J D Howson	Greensill & Associates
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
BEACH JA
SIFRIS JA:

On 27 February 2019, following a six-day trial in the County Court, the applicant was found guilty of one charge of aggravated burglary (charge 1) and two charges of rape (charges 2 and 3). On 13 March 2019, following a plea hearing on 12 March 2019, the applicant was sentenced to a total effective sentence of 14 years, with a non-parole period of 8 years and 4 months.[1]
[1]DPP v Mitchell [2019] VCC 305 (‘Sentencing Reasons’).

The applicant now seeks an extension of time within which to seek leave to appeal against conviction and, if the extension of time is granted, leave to appeal against conviction. His proposed grounds of appeal are:

1.The evidence in support of aggravated burglary did not establish guilt to the requisite standard of proof.
2.The evidence in support of anal rape did not establish guilt to the requisite standard of proof.
3.The direction on bad character evidence unfairly undermined the credibility of the applicant.
4.The exceptions taken during the closing argument of defence counsel and the criticisms during the course of the charge:
(a)seriously undermined the credibility and competency of counsel in the eyes of the jury; and
(b)created a real risk that the jury formed the impression that the judge thought the defence case to be without merit.

The application for an extension of time within which to seek leave to appeal against conviction was filed some 20 months after the expiration of the 28 day time limit provided in s 275 of the Criminal Procedure Act 2009. The extension of time application requires a consideration of the merits of the applicant’s proposed appeal and the applicant’s reasons for not filing his application for leave to appeal within the prescribed time.[2] The respondent submitted that the extension of time application should be refused…

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 Mitchell v The Queen

Details

AGLC: Mitchell v The Queen [2022] VSCA 32
Case: [2022] VSCA 32
Decision Date: 15 March 2022

CaseChat Overview and Summary

The applicant, Mitchell, appealed against his conviction for aggravated burglary and rape, seeking an extension of time to file an application for leave to appeal. The application was heard by the court which had to consider several legal issues, including whether the evidence established beyond reasonable doubt that Mitchell entered the premises as a trespasser and that he anally penetrated the complainant. The court was also required to determine if there were any errors in the bad character direction given by the judge and whether the judge’s criticisms of the defence counsel had the potential to undermine the jury’s view of the defence counsel’s credibility or competence.

The court found that the proposed grounds of appeal were not reasonably arguable. The applicant’s explanation for the delay in filing the application was deemed unsatisfactory. The court concluded that granting an extension of time would be futile, as the application for leave to appeal was unlikely to succeed. The court was particularly concerned with the applicant's lack of a clear and compelling reason for the delay, which further supported the decision to refuse the extension of time.

The court's reasoning was grounded in the principle that applications for extensions of time to appeal must be approached with caution and that such applications will only be granted in exceptional circumstances. Given the lack of reasonably arguable grounds for appeal and the unsatisfactory explanation for the delay, the court refused the application for an extension of time. This decision reinforces the importance of timely and well-founded applications in the appellate process.

Orders