Mustafa Yehia v The Queen (No 2)

[2015] VSCA 282

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0042

MUSTAFA YEHIA	Applicant
v
THE QUEEN (No 2)	Respondent

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ELECTION TO HAVE AN APPLICATION FOR LEAVE TO APPEAL DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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JUDGES:	WHELAN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	No oral hearing requested
DATE OF JUDGMENT:	21 October 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 282
JUDGMENT APPEALED FROM:	[2015] VSCA 119 (Weinberg JA and Blue AJA)

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DETERMINED ON THE PAPERS

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APPEARANCES:	Counsel	Solicitors
No appearances

WHELAN JA
PRIEST JA:

1. In October 2014, the applicant pleaded guilty in the County Court to dangerous driving causing serious injury and reckless conduct endangering serious injury.  The commission of these two offences breached a suspended sentence of six months’ imprisonment that the applicant was undergoing for false imprisonment.

1. On 3 February 2014, the judge restored the suspended sentence, and sentenced the applicant to be imprisoned for two years and six months on the charge of dangerous driving causing serious injury and two years on the charge of reckless conduct endangering serious injury.  A discrete sentence of three months’ imprisonment was imposed for contravening the order for a suspended sentence.  With orders for cumulation, the judge imposed a total effective sentence of three years and six months’ imprisonment, and fixed a non-parole period of two years and six months.

1. An application for leave to appeal against sentence was heard by Weinberg JA and Blue AJA on 21 May 2015,[1] and was refused. Notwithstanding that refusal, the applicant has purported to renew the application for leave to appeal. An issue arises as to whether that purported renewal is competent. In our view, it is not.

   [1]Yehia v The Queen [2015] VSCA 119.

1. Before proceeding further, it is to be noted that Blue AJA is ordinarily a Judge of the Supreme Court of South Australia.  On 28 April 2015, he was appointed as a reserve Judge of the Supreme Court of Victoria by the Governor in Council, and was later engaged by the Chief Justice to act as a Judge of Appeal from 11 May 2015 to 22 May 2015.

1. In written submissions directed to the question of competence, the applicant’s counsel points out that, after the refusal of leave by Weinberg JA and Blue AJA, on 28 May 2015 the Registrar sent letters to the applicant and his solicitors advising the applicant of his right to renew his application for leave to appeal. Documents, including one entitled ‘Election to Have Application under Section 315 of the Criminal Procedure Act 2009 Determined by Court of Appeal’ (‘the Election’), were forwarded with the Registrar’s letters. The Election — which purported to elect to having the application determined by the Court of Appeal ‘constituted by at least two judges’ — was signed and returned to the Registry on 3 June 2015. Two days later, on 5 June 2015, a letter was sent from Registry to the applicant’s solicitors acknowledging receipt of the Election, and advising that the application would be referred to the full court for determination on the papers ‘in due course’.

1. By an email dated 13 October 2015, the Registry advised the parties that Blue AJA was commissioned as a reserve judge and engaged as a Judge of Appeal.  Thus, there is a live question as to whether the applicant is capable of renewing the application for leave to appeal that was refused by two judges.

1. The applicant submits that he should not be deprived of the right to renew his application because he ‘was invited by Registry of the Court of Appeal to elect to renew his application for leave to appeal’;  the applicant ‘sought instructions to renew his application based on the understanding that there would be a further hearing’;  the matter ‘was listed for determination by a full court’;  and the applicant ‘prepared and filed further submissions in support of the renewed application’.  Further, it is submitted that even where an application for leave is heard by two Judges of Appeal, ‘there is no express prohibition to the right to renew the application’.

1. The respondent submits, in effect, that the purported application to renew the application for leave to appeal is incompetent. It is submitted that s 315 of the Criminal Procedure Act 2009 (‘CPA’) sets out the powers which may be exercised by the Court of Appeal constituted by a single Judge of Appeal. Section 315(1)(a) provides that a single judge may exercise the power ‘to give leave to appeal’. The right to renew an application refused by a single judge is governed by s 315(2), which provides:

(2)  If the Court of Appeal constituted by a single Judge of Appeal refuses an application to exercise a power referred to in subsection (1) in relation to any ground of appeal, the applicant is entitled to have the application determined by the Court of Appeal constituted by 2 or more Judges of Appeal.

1. Further, the respondent submits, the procedure which governs renewal of an application for leave to appeal is set out in r 2.08 of the Supreme Court (Criminal Procedure) Rules 2008 (‘the Rules’). In particular, r 2.08(3) requires the renewed application under s 315 ‘shall be considered by the Court of Appeal comprising at least two Judges of Appeal’.

1. Hence, the respondent contends, the CPA and the Rules clearly and unambiguously provide that elections for renewal are from a decision of a single judge only. Since, in this case, the applicant had his application refused by the Court of Appeal constituted by two Judges of Appeal — Weinberg JA and Blue AJA — the applicant has no right to elect to have his application further determined by the Court of Appeal. There simply is no power in the CPA or Rules permitting the applicant to renew his application, it having been refused by two Judges of Appeal. The application for leave to appeal was finally disposed of on 21 May 2015. There is no jurisdiction reposing in the Court to entertain the purported renewed application.

1. Given that Blue AJA was undoubtedly a Judge of Appeal when the application was dealt with on 21 May 2015, the respondent’s submissions must be accepted.

1. Section 75A(1) of the Constitution Act 1975 (‘the Act’) provides that the Supreme Court is divided into the Court of Appeal and Trial Division.  By virtue of s 75A(2), the Court of Appeal consists of the Chief Justice, the President of the Court of Appeal, the other Judges of Appeal and ‘the additional Judges of Appeal appointed or acting under section 80B’.  Section 75A(6) further provides that a reference in the section to ‘Judges of Appeal’ includes ‘any reserve Judges engaged under section 81B … during any period of engagement’.

1. By s 81(1) of the Act, the Governor in Council ‘may appoint as many reserve Judges of the Court as are necessary for transacting the business of the Court’. Section 81(2) provides that a person is not eligible for appointment as a reserve Judge unless he or she has not attained the age of 78 years, and is, or has been, ‘a judge of a Supreme Court (however designated) of another State, the Northern Territory or the Australian Capital Territory’.

1. Subsections 80B(2) and (4) of the Act provide:

(2) If the President of the Court of Appeal with the concurrence of the Chief Justice, determines that a Judge of the Court should act as an additional Judge of Appeal for a period, not exceeding 6 months, the Chief Justice must nominate a Judge of the Court to act as a Judge of Appeal and, if that Judge is willing, the Judge may act as an additional Judge of Appeal for that period.

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(4) An additional Judge of Appeal appointed or otherwise acting as such a Judge under this section is deemed to hold office as an additional Judge of Appeal for all purposes and, while so acting, has the same powers and jurisdiction as a Judge of Appeal.

1. As we have mentioned, Blue AJA was appointed as a reserve Judge of the Supreme Court of Victoria by the Governor in Council on 28 April 2015, and was later engaged by the Chief Justice to act as a Judge of Appeal from 11 May 2015 to 22 May 2015.  In light of s 75A(6) and s 80B(4), his Honour undoubtedly was acting as a Judge of Appeal when the application for leave to appeal was disposed of on 21 May 2015.

1. The application for leave to appeal having been dealt with by two Judges of Appeal, neither the CPA nor the Rules permits the purported election.

1. As unfortunate as it may be that certain correspondence from the Registry had the capacity to confuse the situation, there is no doubt that the purported application to renew is incompetent.

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