Mongan v The King - [2024] VSCA 126

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0034

DANIEL MONGAN	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, KENNEDY and TAYLOR JJA
WHERE HELD:	Shepparton
DATE OF HEARING:	6 June 2024
DATE OF JUDGMENT:	7 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 126
JUDGMENT APPEALED FROM:	[2019] VCC 1528 (Judge Smallwood)

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CRIMINAL LAW – Appeal – Application for extension of time to make application for leave to appeal against conviction – Applicant entered plea of guilty to four offences in which estranged wife was the victim – Applicant tendered written apology for his conduct on his plea – Previous application for leave to appeal against sentence – Whether substantial miscarriage of justice because of non-disclosure; new evidence; plea entered for pragmatic reasons; plea entered under duress; or a combination of those factors – No arguable grounds advanced – Application for extension of time refused.

Meissner v The Queen (1995) 184 CLR 132; Gurrappaji v The Queen [2018] VSCA 187, followed. Weston (a pseudonym) v The Queen (2015) 48 VR 413; R v BDC [2018] QCA 132; Jones v The Queen [2018] VSCA 11, referred to.

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Counsel
Applicant:		In person
Respondent:		Ms E Ruddle KC
Solicitors
Applicant:	Unrepresented
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
KENNEDY JA
TAYLOR JA:

Introduction

On 18 September 2019 the applicant pleaded guilty in the County Court to four charges relating to his conduct on 24 July 2018 towards his estranged wife. These were false imprisonment, common assault, aggravated burglary and making a threat to kill. The following day the applicant was sentenced to a total effective sentence of four years and six months’ imprisonment with a non-parole period of three years.
On 19 March 2021 this Court dismissed the applicant’s appeal against sentence.[1]
[1][2021] VSCA 67 (Priest and Niall JJA).
On 15 November 2021 the applicant was released on parole.
On 28 February 2024 – about 4 years and 4 months’ out of time[2] – the applicant sought to file a Notice of Application for Leave to Appeal Against Conviction (‘Notice’) and Written Case together with an application for an extension of time within which to file the Notice (‘Application’). The Application was supported by an affidavit sworn by the applicant on 28 February 2024 (‘affidavit’).
[2]Criminal Procedure Act 2009, s 275(1).
If granted an extension of time, the applicant seeks leave to appeal against conviction on a single ground:
1.       A substantial miscarriage of justice[3] has occurred, due to:
[3]Criminal Procedure Act 2009 section 276(1)(c).
a.the lack of relevant disclosures by the prosecution and/or Victoria Police; and
b.       new material evidence is available; and
c.the appellant did not wish to admit his guilt when entering the plea of guilty; and
d.       the appellant entered the plea under duress.
For the reasons that follow, the Application should be refused.

The application for extension of time

The principles guiding the discretion to extend time were summarised in Madafferi[4]

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 Mongan v The King

Details

AGLC: Mongan v The King [2024] VSCA 126
Case: [2024] VSCA 126
Decision Date: 7 June 2024

CaseChat Overview and Summary

The applicant, Mongan, appealed against the decision to refuse an extension of time to make an application for leave to appeal against his conviction for four offences. The victim of the offences was Mongan's estranged wife. Mongan had entered a plea of guilty to the offences and tendered a written apology to his wife at the time of his plea. The application for an extension of time was to allow Mongan to argue that his application for leave to appeal against his sentence was affected by a substantial miscarriage of justice. The basis for this was either due to non-disclosure, new evidence, the plea being entered for pragmatic reasons, the plea being entered under duress, or a combination of these factors.

The court needed to decide whether there were arguable grounds for an extension of time to be granted. The court noted that Mongan had not advanced any arguable grounds for the application for leave to appeal against his sentence being affected by a substantial miscarriage of justice. The court held that an extension of time would only be granted if there were arguable grounds for the application for leave to appeal against sentence being affected by a substantial miscarriage of justice. The court referred to previous cases which held that arguable grounds must be advanced for an extension of time to be granted.

The court refused the application for an extension of time to make an application for leave to appeal against conviction. The court held that there were no arguable grounds for the application for leave to appeal against sentence being affected by a substantial miscarriage of justice. The court held that Mongan had not advanced any arguable grounds for the application for leave to appeal against sentence being affected by a substantial miscarriage of justice. The court held that the application for an extension of time to make an application for leave to appeal against conviction was refused.

Orders