Pisey Prasoeur v The Queen - [2014] VSCA 354

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0026

PISEY PRASOEUR	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, REDLICH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 July 2014
DATE OF JUDGMENT:	22 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 354	1^st Revision 25 September 2015 — [39]
JUDGMENT APPEALED FROM:	[2006] VSC 41 (Bell J)

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CRIMINAL LAW - Appeal – Conviction – Murder – Extension of time application – Refusal by Deputy Registrar to extend time - Election against refusal – Delay of 8 years in filing application – Applicant encouraged by fellow prisoner – No satisfactory explanation for delay - Whether verdict unsafe and unsatisfactory – Reasonable jury not bound to doubt applicant’s guilt – Application refused – R v Darby (Unreported, Supreme Court, Court of Criminal Report, Gowans, Lush and Crockett JJ, 2 May 1975); Efandis v The Queen [2014] VSCA 42; M v The Queen (1994) 181 CLR 487; Patel v The Queen (2012) 247 CLR 531 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant In person
For the Respondent	Mr D Trapnell QC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA
WEINBERG JA:

Summary

In September 2005, the applicant was convicted of murder. In February 2006, he was sentenced to 20 years’ imprisonment, with a non-parole of 15 years.

In February this year, some eight years after he was sentenced for murder, the applicant applied for an extension of time within which to seek leave to appeal against his conviction. The applicant was represented at his trial by experienced counsel, but is now representing himself. As will appear, he has acted on the advice and guidance of other prisoners.

For reasons which follow, the application for an extension of time must be refused. First, there is no satisfactory explanation for what is, on any view, a quite extraordinary delay. Secondly, and in any event, we have examined the proposed grounds of appeal and have concluded that they are without merit.

It is perhaps not surprising that a person in the applicant’s position, serving a lengthy term of imprisonment, would be receptive to advice and encouragement from fellow prisoners about the possibility of an appeal. But the outcome of the present application demonstrates just how unreliable such advice can be, and how likely it is to create false hope of success.

The application for an extension of time

The applicant was convicted of murdering Aneta Pochopien. The applicant had worked with Ms Pochopien at the same factory, and they had had a sexual relationship.

The applicant was distressed when Ms Pochopien brought the relationship to an end. She had become pregnant to him but terminated the pregnancy.

In seeking to explain his failure to seek leave to appeal in 2006 following the sentence, the applicant said that he had been ‘mentally incapable of constructing an appeal’. The murder of a person he loved had left him ‘in a confused and distraught state of…

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 Pisey Prasoeur v The Queen

Details

AGLC: Pisey Prasoeur v The Queen [2014] VSCA 354
Case: [2014] VSCA 354
Decision Date: 22 December 2014

CaseChat Overview and Summary

The case before the court was an appeal by Pisey Prasoeur against his conviction for murder. The Supreme Court of Victoria heard the matter, which involved the refusal of an application by the applicant to extend the time for filing an appeal against his conviction and sentence. The applicant had been encouraged by a fellow prisoner to make the application but failed to do so within the requisite time. An application for an extension of time was made eight years after the time for lodging the appeal had expired. The applicant was required to demonstrate that the delay in filing the application was excusable and that the verdict was unsafe and unsatisfactory.

The court had to determine whether the delay in filing the application was excusable and whether the verdict was unsafe and unsatisfactory. The applicant argued that the delay was due to the encouragement from a fellow prisoner, but the court noted that the applicant had not provided a satisfactory explanation for the delay. The court also had to consider whether a reasonable jury, properly directed, would be bound to doubt the applicant's guilt. The court examined the evidence and concluded that there was no basis for doubting the applicant's guilt.

The court found that the delay in filing the application was not excusable, and the applicant had not provided a satisfactory explanation for the delay. The court also found that a reasonable jury, properly directed, was not bound to doubt the applicant's guilt. The court held that the verdict was safe and satisfactory and dismissed the application. The court relied on several cases, including R v Darby, Efandis v The Queen, M v The Queen, and Patel v The Queen, to support its decision. The court refused the application for an extension of time and upheld the conviction and sentence of the applicant.

Orders