Nektario Zafiratos v The Queen

[2016] NSWCCA 152

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Nektario Zafiratos v R [2016] NSWCCA 152
Hearing dates:	22 July 2016
Date of orders:	22 July 2016
Decision date:	03 August 2016
Before:	Hoeben CJ at CL at [1] RA Hulme J at [2] N Adams J at [3]
Decision:	(1) Application for an extension of time to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW) is refused.
Catchwords:	CRIMINAL LAW – application for extension of time to seek leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 – application refused
Legislation Cited:	Crimes Act 1900 (NSW), ss 117, 192E(1)(b) Criminal Appeal Act 1912 (NSW), s 5F(3) Criminal Appeal Rules, Cl 5B
Cases Cited:	Morgan v R (No 2) [2013] NSWCCA 80 R v KCH (2001) 124 A Crim R 233
Category:	Procedural and other rulings
Parties:	Nektario Zafiratos (Applicant) Regina (Respondent)
Representation:	Counsel: Nektario Zafiratos (Applicant) DC McCallum (Respondent)   Solicitors: Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/00082913; 2012/00082905
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 26 February 2016 Before: Tupman DCJ File Number(s): 2012/00082913; 2012/00082905

Judgment

1. HOEBEN CJ at CL: I agree with N Adams J.

2. RA HULME J: I have read in draft the judgment of N Adams J. I respectfully agree with her Honour's reasons for the applicant having been refused an extension of time to bring an application for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW).

3. N ADAMS J: The applicant sought an extension of time within which to seek leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW) against the decision of Tupman DCJ on 26 February 2015 to refuse him leave to reverse his pleas of guilty to 11 charges contrary to s 192E(1)(b) of the Crimes Act1900 (NSW). The pleas of guilty were entered on 8 August 2013.

4. This matter was listed before the Court on Friday 22 July 2016 for hearing of the limited preliminary question of whether the applicant should be granted an extension of time. The applicant appeared on his own behalf. At the conclusion of the hearing, the Court made an order refusing the application for an extension of time. Hoeben CJ at CL indicated that the Court’s reasons would be published at a later date. These are my reasons for joining in the order made by the Court at that time.

Procedural history

5. The procedural history of this matter is long and it is necessary to set out some of it in detail.

6. On 7 March 2012, warrants for the arrest of the applicant issued at the Local Court at the Downing Centre in respect of fraud offences allegedly committed in New South Wales. On 12 March 2012, the applicant was arrested in Melbourne. On 14 March 2012, he was extradited to New South Wales and charged with the matters that are the subject of this application.

7. On 26 April 2013, those matters were committed for trial at the District Court at Sydney on 5 August 2013.

8. On 8 August 2013, the Crown presented an indictment against the applicant containing 19 charges. The applicant pleaded guilty to 18 of those charges. He pleaded not guilty to count 2 on the indictment, namely a count of larceny contrary to s 117 of the Crimes Act 1900. On that occasion, the Crown Prosecutor indicated that there would be no further proceedings against the applicant in relation to what had been count 60 on the original indictment filed. Count 60 was an allegation of sexual intercourse without consent.

9. The applicant indicated on 30 August 2013 that he had changed his legal representatives and that he would be seeking to reverse the pleas of guilty entered on 8 August 2013. On 18 March 2014, he filed a Notice of Motion seeking that his pleas of guilty be reversed.

10. The application to reverse the applicant’s pleas of guilty was heard before Tupman DCJ on 18, 19, 20 and 28 November 2014 and 6 February 2015. The solicitor and barrister who represented the applicant at the time he entered the pleas of guilty gave evidence before Tupman DCJ, legal professional privilege having been waived, as did the applicant himself. Although the scope of the application was initially to reverse all pleas of guilty entered on 8 August 2013, it was later limited to only 11 of those 18 counts, being counts 1, 3-8 inclusive, 13-15 inclusive and 19.

11. The basis of the application to reverse the pleas of guilty was twofold. One of the bases was that the applicant was not taking the dose of lithium prescribed for his bipolar disorder at the time he entered the pleas of guilty. The other basis was an assertion by the applicant that he only entered pleas of guilty because his barrister and solicitor told him that a conditional plea offer was available; namely, that the Director of Public Prosecutions (DPP) would take no further proceedings against the applicant in respect of the sexual assault allegation provided that he plead guilty to the fraud charges.

12. On 26 February 2015, Tupman DCJ published her reasons for refusing to allow the applicant to reverse his pleas of guilty to counts 1, 3-8, 13-15 and 19. In those reasons, her Honour addressed the issue of the nature of the plea offer in these terms:

“It is not open to me on this application to make a definitive finding as to whether, in fact, such an offer was made by the Crown. To do so would amount to a matter for which the relevant DPP Officer and Crown Prosecutor would need to be given an opportunity to be heard in the event that findings which would amount to findings adverse to them were made. That has not occurred in the context of this application but, in my view, it is not necessary in any event. I accept that perhaps [the barrister] gained the impression that this was a conditional offer but the issue is not what her view was, but what was the applicant’s state of mind about that issue at the time he entered the pleas of guilty. On my finding of the evidence on this application it did not in fact, play any part in his decision to enter pleas of guilty.”

13. The applicant filed a Notice of Application for Leave to Appeal against Tupman DCJ’s interlocutory order on 23 March 2015 and that application was set down for hearing on 11 September 2015.

14. On 13 August 2015, the applicant’s legal representatives advised the CCA Registrar in writing that the application would be withdrawn. Accordingly, the hearing date of 11 September 2015 was vacated.

15. At the CCA callover on 27 August 2015, the applicant’s legal representatives withdrew. The applicant informed the CCA Registrar that he would be representing himself at the hearing of his application. It was then given a second hearing date of 20 November 2015.

16. At the CCA callover on 8 October 2015, the applicant indicated that he abandoned his application. The CCA Registrar vacated the hearing date of 20 November 2015.

17. On 18 January 2016, proceedings on sentence commenced in the District Court at Sydney before Lakatos SC DCJ in relation to the 18 counts to which the applicant entered pleas of guilty on 8 August 2013. The applicant disputes many of the Crown facts and, as a result, 14 witnesses have been called in a lengthy disputed facts hearing. The hearing has proceeded on 18 January, 15-19 February, 2 March, 15 April and 10 June 2016. The proceedings on sentence are currently stood over part-heard before Lakatos SC DCJ to 4 August 2016.

18. It is to be noted that the procedural history set out above does not reflect all of the numerous times that this matter has been listed for mention or other application in the District Court and is confined to the most significant court dates.

19. On 8 July 2016, the applicant filed a second Notice of Application for Leave to Appeal against Tupman DCJ’s order of 26 February 2015. The application is out of time by over a year. The respondent opposes any extension of time, given the history of this matter.

20. The application was listed before this Court on 22 July 2016 to hear the question of whether the applicant should be given an extension of time in which to bring his interlocutory appeal in circumstances where the applicant’s lengthy District Court sentencing proceedings are almost complete. The question for the Court is thus confined to whether the applicant can establish that he should be granted the extension of time sought.

21. The applicant has been in custody, bail refused, in New South Wales since 15 March 2012.

Relevant principles

22. Clause 5B of the Criminal Appeal Rules provides that any party seeking leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 from any interlocutory order shall give notice of application for leave to appeal within 14 days of the date of judgment or order. In circumstances where the application is significantly out of time, it is necessary for this Court to have regard to whether any adequate explanation has been provided for the delay.

23. Furthermore, a previous application having been abandoned, there is authority for the proposition that a court would not extend time to re-file a further application unless to refuse to do so would cause a miscarriage of justice: Morgan v R (No 2) [2013] NSWCCA 80 at [80].

24. The relevant questions for this Court to consider are hence whether there is a satisfactory explanation for the delay and whether to refuse an extension of time would lead to any miscarriage of justice. The latter of these two matters involves, to a limited extent, having regard to the proposed ground(s) of appeal.

The applicant’s submissions

25. The applicant’s basis for bringing the appeal again and out of time is set out in his Notice of Application for Leave to Appeal as follows:

“There has been a lapse of time since date [sic] her Honour refused the application to reverse Mr Zafiratos’ pleas and the matter has now progressed through to a lengthy disputed facts hearing before Judge Lakatos. As a result of those proceedings there has been material produced which was not available to either party when the matter was determined by Judge Tupman. Consequently this will form the basis of this appeal.”

26. On the afternoon before this application was heard, the applicant filed various handwritten submissions and other documentation. Included in his written notes is an assertion that, since the hearing before Tupman DCJ, material has come to light supporting the applicant’s argument that the plea offer was in terms that, if he pleaded guilty to the charges contained on the indictment presented on 8 August 2013, the DPP would not proceed further with an indictment containing an allegation of sexual assault.

27. During the hearing of the application the applicant read from a document said to be bail submissions from the DPP and submitted the following:

“On the 16th of this year, 16th of last month I made a bail application before Judge Lakatos before he left for holidays. He is on holidays until Monday. Now, up until now, apart from what my lawyer and what my barrister at that time said, was the Crown denying there was a plea deal and offer on the table. This is the submission the Crown made on 16th of last month. It says here,

"The applicant was originally committed for trial in December in relation to the fraud matters, the sexual assault matter. A large number of fraud matters were still in the Local Court and the intention was to just have all matters dealt with together. A trial date of 5th of August was set, estimate five weeks, so they can marry them because they wanted to run it on the same bill. During the course of time negotiations took place resulting in some pleas of guilty in relation to a number of offences, some matters being withdrawn on the basis of the plea, other offences taken to trial.”

28. When it was drawn to the applicant’s attention in the course of the hearing of the application that Tupman DCJ made no finding either way as to whether any agreement had occurred, the applicant sought to refer to comments made by her Honour during exchanges with counsel. It was explained to him that error has to be shown in what her Honour stated in her reasons rather than comments made during the proceedings themselves.

29. The applicant did not raise any other ground of appeal in his written documentation beyond that referred to above at [25].

30. The applicant made the following submissions explaining the delay in this matter and the reasons he now wishes to pursue his appeal.

31. First, he informed the court that he had abandoned his original application to this Court in response to an offer by the DPP to “no bill” three outstanding fraud charges to which he had not yet pleaded. What ultimately occurred was that, on 22 January 2016, the DPP indicated that there would be no further proceedings in relation to those three charges and the applicant pleaded not guilty to a lesser charge contained in an ex officio indictment and acknowledged his guilt in relation to two matters on a Form 1. The applicant complained that this process took much longer than he expected.

32. Second, the applicant stated that he had been in contact with the Royal Commission into Institutional Responses to Child Sexual Abuse. That process had caused him a great deal of stress and anxiety.

33. Third, he stated that, because he had been charged with sexual assault for a period of time, he was still being incarcerated in conditions of strict protection with only limited access to a computer. This was said to be because the authorities were reluctant to move him from limited association to reside in the general prison population.

34. Fourth, he said that he only abandoned his initial application because he thought that the proceedings on sentence would progress more quickly than they have. They have taken so much time that he now wishes to re-activate his application under s 5F(3).

35. Finally, the applicant submitted that he had been informed in the course of past unsuccessful bail applications that, on his release from NSW custody, it is likely Queensland police will seek to extradite him to that State to answer outstanding charges. If that were to occur, he would have significant difficulty prosecuting his appeals against conviction and sentence after the matter is finalised in the District Court.

36. Throughout his submissions, the applicant strongly submitted that he is not guilty of the 11 counts in question and that he could persuade a jury of this if he were given the opportunity to defend the allegations.

The respondent’s submissions

37. The respondent opposed the application for an extension of time. In written submissions filed on 21 July 2016, the respondent contended that there was no substance to any of the issues raised by the applicant; that the previous appeal was deliberately abandoned in circumstances where to maintain the abandonment would not lead to any miscarriage of justice; and that there is no satisfactory explanation for the delay in seeking to reinstate the appeal.

38. It is not necessary to summarise the respondent’s submissions insofar as they relate to the merits of the appeal.

39. The respondent submitted that the circumstances in which the applicant’s legal representatives withdrew from the previous appeal and the number of occasions on which an intention to abandon the appeal was expressed weigh heavily against the application for an extension of time. It was submitted that the maintenance of the abandonment in the circumstances of this case would not lead to a miscarriage of justice: Morgan v R (No 2) at [80].

40. Further, the respondent submitted that the applicant failed to articulate a meaningful explanation for the delay in bringing the application. It did not accept, contrary to what the applicant contended, that there is any new material available. In any event, an appeal would be determined on evidence before Tupman DCJ.

41. The respondent relied upon its written submissions at the hearing of the application.

Consideration

42. The applicant has failed to provide any adequate explanation for the delay in this matter. The effect of his submissions to the Court is that he was prepared to abandon his application and be sentenced when he thought the matter would be resolved quickly, but in hindsight he regrets that decision as the proceedings have not progressed quickly in the District Court.

43. It is worth noting the reasons that the proceedings have been delayed. It has now been almost three years since the applicant pleaded guilty to these charges. The delay since then has been a result of the applicant changing his legal representatives, seeking to reverse his guilty pleas, commencing and then abandoning an interlocutory appeal to this Court and then requiring 14 witnesses for cross-examination at a prolonged disputed facts hearing. These were all forensic decisions available to the applicant at each step of the proceedings, but the procedural history of this matter gives rise to the inescapable conclusion that the delay in this matter has been at the applicant’s own hands. His explanation for now wishing to appeal again from the decision of Tupman DCJ includes a complaint that the proceedings have involved considerable delay. It is difficult to reconcile this submission with the fact that there would be even further delay if this appeal were to proceed further, especially at a time when the lengthy sentencing proceedings are almost finalised.

44. The only ground advanced by the applicant in his Notice of Application for Leave to Appeal concerns a factual matter that ultimately played no role in Tupman DCJ’s ultimate findings. The question before Tupman DCJ was whether a miscarriage of justice would result if the applicant were not permitted to withdraw his pleas: R v KCH (2001) 124 A Crim R 233 at [32]. The applicant’s complaint appears to be, contrary to the findings of Tupman DCJ, that he only entered his pleas of guilty to the fraud charges because the DPP offered to drop the sexual assault charges if he did so. The sexual assault charge was in fact dropped, although there is no evidence before the Court that this occurred because of any plea offer. The applicant’s complaint is that such a plea offer was improper and he seeks to establish that such an offer was made to show that he only pleaded guilty on the basis of an “improper” plea offer.

45. As set out above, Tupman DCJ concluded that she did not need to make any finding either way as to whether such a plea offer was in fact made in order to dispose of the application before her. This being the only ground of appeal advanced by the applicant, it could not be said that to refuse the applicant an extension of time would cause any miscarriage of justice.

46. Matters raised by the applicant such as his prior history of sexual abuse and his incarceration in strict protection can relied upon in his proceedings on sentence. He may then appeal to this Court, with leave, against any sentence imposed as well as against his conviction.

47. It is for these reasons that I joined in the order of the Court on 22 July 2016 that an extension of time to seek leave to appeal against the decision of Tupman DCJ on 26 February 2015 be refused.

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Decision last updated: 03 August 2016