R v BFB No. Sccrm-03-185

R v BFB
[2003] SASC 338
Criminal

BESANKO J After a trial by jury before the Chief Judge of the District Court, B was found guilty of four counts of unlawful sexual intercourse with A, a child under the age of 12 years contrary to s 49(1) of the Criminal Law Consolidation Act (“CLCA”). The jury delivered its verdicts on 1 October 2002.
The offences were alleged to have taken place in 1997. At that time, A was eight years old. The first offence was alleged to have occurred in February 1997, and the second, third and fourth offences were alleged to have occurred on a single night between April and August 1997. It appears that there was no complaint about the incidents until late 2001. Therefore, in relation to the first offence, there was a delay between the alleged offence and the complaint of over four and a half years, and in relation to the second, third and fourth offences there was a delay between the alleged offences and the complaint of over four years.
B wishes to appeal against his convictions. He has put forward eight grounds of appeal. He accepts that he needs leave to appeal in relation to seven grounds. He asserts that one ground raises a question of law, and that he does not need leave to appeal in relation to it.
A defendant’s rights of appeal are set out in s 352 of the CLCA. There is an appeal as of right on a question of law alone, and with leave on any other ground. Section 357 of the CLCA provides that an appeal to the Full Court or an application for leave to appeal to the Full Court must be made in accordance with the appropriate rules of court. The time fixed by the rules for the lodging of a notice of appeal or notice of application for leave to appeal is within 21 days of the date of conviction (r 4A of the Supreme Court Criminal Appeal Rules 1996). Section 357(2) provides that the Full Court may (either before or after the time allowed by the rules has expired) extend the time for making such an appeal or application. In this case, the notice of appeal or notice of application for leave to appeal is almost nine months out of time. It was lodged on 25 July 2003. The defendant seeks an order under s 357(2) of the CLCA extending the time for making the appeal or application. He also seeks leave to appeal in relation to the grounds of appeal. By reason of s 367 of the CLCA, both applications may be heard and determined by a single judge of this Court.
On the hearing of the application for an extension of time for making the appeal or application, I received four affidavits, namely,
(1)   affidavit of Mr G J Mancini sworn 1 September 2003,
(2)   affidavit of the defendant’s brother sworn 2 September 2003,
(3)   affidavit of Mr G J Mancini sworn 17 September 2003, and
(4)   affidavit of the defendant sworn 17 September 2003.
The Director did not seek to cross-examine the deponents of the affidavits.
Despite the fact that four affidavits have been put forward, I have not found it easy to gain a clear picture of the relevant events between October 2002 and July 2003.
As I have said, the defendant was convicted of the four offences on 1 October 2003. Immediately after that date, he faced sentencing for the offences and further trials in the District Court. He was sentenced for the offences on 16 December 2002. At a time not made clear by the evidence, one of the trials in the District Court was listed to commence on 1 July 2003.
At the time of the convictions and shortly thereafter the defendant and his brother were advised that there were no grounds of appeal. That advice was given by the counsel who represented the defendant at trial and was confirmed by the defendant’s solicitor. The defendant’s solicitor did advise the defendant that, subject to funding, arrangements could be made for a senior barrister to look at the matter. It seems that the defendant was unhappy with how the trial had proceeded and he wanted to change his legal representation. The evidence from the defendant and his brother was that the defendant had always wanted to appeal against the convictions.
The defendant suffered a mental breakdown after the verdicts and he was detained at James Nash House from 2 October 2002 to 30 December 2002. He was taking medication and he was limited in what he could do. It seems that his brother was trying to assist him during this period.
A short time after 1 October 2002 the defendant’s brother was advised by the defendant’s solicitor that there was a 21 day time limit in relation to any appeal.
The defendant’s brother attempted to lodge an application for leave to appeal at the Registry at the District Court on 14 October 2002, but it was rejected and he was told by staff at the Registry that “it needed to be completed by a solicitor with proper legal reasons”.
On 19 October 2002 the defendant’s brother arranged for an application for legal assistance to be made to the Legal Services Commission. Assistance was sought, to use the words of the defendant’s brother, “for the remaining matters for my brother and his appeal”. The defendant did not have the funds to pay the outstanding balance of the accounts of his counsel and solicitor.
On 28 October 2002 Mr Mancini received instructions to act for the defendant. At that time, there were a number of ongoing matters, and it is not clear from Mr Mancini’s first affidavit what precise instructions he was given. Late in October 2002, Mr Mancini did a number of things. First, he sought the file from the defendant’s former solicitor. Secondly, he enquired of the Legal Services Commission about the progress of the defendant’s application for legal assistance. Thirdly, he appeared for the defendant before the Chief Judge of the District Court in relation to the outstanding matters involving the sentencing of the defendant for the offences.
On 7 November 2002 the Legal Services Commission advised Mr Mancini that legal assistance had been granted in respect of the sentencing of the defendant by the Chief Judge. At about this time, there were difficulties in obtaining the brief from the defendant’s former solicitor because the defendant’s former counsel had not been paid.
During Mr Mancini’s discussions with the defendant and his brother, the defendant wanted to know whether he could appeal against the convictions. Mr Mancini raised this question with counsel by letter dated 27 November 2002. Mr Mancini considered that, until he had full instructions and all the materials, the question of an appeal could not be properly or fully considered.
Mr Mancini states that by letter dated 9 December 2002, the defendant advised him that he wished to appeal against the convictions. It is not clear to me how this fits in with the statement in the previous paragraph that throughout the discussions between Mr Mancini and the defendant, the defendant wanted to know if he could appeal. During December 2002 Mr Mancini corresponded with the Legal Services Commission on the topic of obtaining legal assistance for the purpose of an application for leave to appeal against the convictions. By letter dated 31 December 2002, the Legal Services Commission approved the provision of legal assistance for the purpose of an application for leave to appeal against the convictions.
At some time late in 2002 or early in 2003, Mr Mancini became concerned as to whether, in view of the defendant’s financial circumstances, he was entitled to legal assistance. This came about because the defendant told Mr Mancini that he would not be returning to his employment and that on cessation of his employment he would receive a payout of monies. Mr Mancini corresponded with both the defendant and the Legal Services Commission on this topic. On 21 February 2003 Mr Mancini wrote to the defendant asking for his written instructions about this topic and about whether to proceed with an appeal against the convictions. It is not clear to me why Mr Mancini needed to do the latter in view of what he said were his instructions well prior to that date. Mr Mancini states that he visited the defendant in prison on 21 February 2003 and was given instructions to proceed with an appeal against the convictions. By 10 March 2003, the defendant’s financial position was clarified and Mr Mancini was satisfied that the defendant’s entitlement to legal assistance was unaffected.
At Mr Mancini’s request, the defendant’s brother, on 14 March 2003, prepared a document setting out his concerns about how the trial had been conducted. Mr Mancini says he read the document and it was evident that it did not raise “any particular ground of appeal”.
In his first affidavit, Mr Mancini provides an explanation about what happened from this point in time. He states:
“30.I did not otherwise consider the materials (such as the trial transcript and the summing up) concerning potential grounds of appeal because I was going to attend to that once I had briefed counsel for the next trial in the District Court.
Due to pressure of work and related demands on my time I did not brief counsel in respect of the next trial for the applicant in the District Court until I forwarded the brief to counsel on 17 June 2003. That trial had been listed for hearing to commence on 1 July 2003. The papers comprised in that brief included the trial transcript from the previous trial concluded in October 2002 in the transcript of the trial judge’s summing up to the jury.
31.At that time counsel considered the matter and in particular the potential for any appeal against conviction in respect of the first trial and by letter dated 4 July 2003 counsel gave written advice about the grounds of appeal herein.
32.On 20 July 2003 I attended upon the appellant at Yatala Prison to have him sign the application for leave to appeal.”
In his second affidavit, Mr Mancini provides a more detailed explanation. He states:
“12.I then deferred from time to time addressing the need to prepare instructions for counsel to consider the merits of an appeal. I had the file on my desk and was conscious of the need to do so but I developed a mental block about getting down to do what was simply necessary and quite simple to do. I prepared a full brief to counsel, Anthony Schapel, who was briefed for the purposes of the District Court trial of the client in July 2003. Counsel then provided me with his letter of advice about the grounds of appeal in the letter dated 4 July 2003. At that time I was fully occupied in respect to preparation for a special sitting of the Full Court of the Supreme Court which occupied most of my time in addition to my other work and I was not able to arrange to attend upon the client for the purposes of having him sign the application for leave to appeal until Sunday, 20 July 2003.
13.I was conscious from the letter that is referred to in paragraph 4 of the affidavit of [the defendant’s brother] herein that the client and [the defendant’s brother] had been told by counsel for the trial that there were not any grounds of appeal. I did not consider that was any impediment to any further consideration of the grounds of appeal as I considered it was appropriate for any merits of any ground of appeal to be assessed by independent counsel. That is generally indeed the best practice. The statement from the previous counsel that there were not any grounds of appeal did not influence my conduct of the matter in any way. My conduct of the matter was delayed as a result of my own pressure of work and my deferral of the preparation of the papers for consideration by counsel of the merits of an appeal.
14.At all times the client had always indicated he wanted to appeal against conviction. I would explain that it would be necessary for that to be considered by counsel, that the application for leave to appeal was out of time but that it could all be considered in due course. The discussions that I had from time to time with the client would be at directions hearings in the cells at the District Court or in my arranged attendances with him at Yatala Prison. I attended upon the client at Yatala Prison about once per month and always indicated that the question of appeal was going to be considered. At no stage did the client ever resile from his wish to appeal against conviction. I do not practice as an appellate counsel and do not give advice about grounds of appeal against conviction in cases in which I am not counsel or solicitor.”
The statements by the defendant and his brother that the defendant always wanted to appeal and wanted to know if he could appeal (ie., had grounds upon which to appeal) are not challenged and they are supported by the evidence of Mr Mancini.
The delay in this case of nearly nine months is very substantial. A small part of the initial delay (ie., about one month) was due to the defendant’s illness and the fact that he changed solicitors. Some relatively small part of the delay was due to the processing of his application for legal assistance, although the evidence is not sufficiently clear to enable me to make precise findings. The greater part of the delay was due to the lack of proper diligence by his solicitor, Mr Mancini.
I was referred to a number of authorities dealing with the question of when an extension of time will be granted. Ultimately, the discretion must be exercised having regard to the interests of justice. An important consideration is the interests of the defendant, but that is not the only consideration. Another consideration may be the fact that, because of the delay, the appeal, if successful, will mean that the defendant is discharged rather than the making of an order for a new trial. In such a case, the accused may need to show that the appeal is very likely to succeed (The Queen v Brown [1963] SASR 190).
In a case where the delay is substantial the defendant must provide a proper and detailed explanation for the delay (R v Foster (1996) 187 LSJS 139). If the delay was caused through exceptional circumstances or some untoward vicissitude of life which prevented the defendant from applying his or her mind to the question of appeal then an extension of time is likely to be granted providing there is merit in the proposed appeal (Reg v Armstrong (1983) 35 SASR 356 per Matheson and Johnston JJ at 367). If the case does not fall within this principle, then it seems the defendant must show a higher likelihood of the appeal succeeding. In Reg v Armstrong, Matheson and Johnston JJ (at 367) referred to authorities which speak of an appeal being likely to succeed (see also The Queen v Brown at 191). In TheQueen v Trotter (1979) 22 SASR 64, Walters J spoke of whether there is any substantial point of law to be argued on appeal, and whether there exists any substantial grounds for apprehending a miscarriage of justice. In Reg v Armstrong, Matheson and Johnston JJ (at 367) adopted the observations of Walters J. In R v Foster, Lander J referred to the various ways in which the test had been expressed where there is no adequate explanation of the reasons for the delay. In the result, His Honour applied a test of whether there is a risk of a miscarriage of justice if an extension of time is refused.
In my opinion, this is not a case in which the delay may be explained by exceptional circumstances or some untoward vicissitude of life which prevented the defendant from applying his mind to the question of appeal in the sense in which that test has been applied in the authorities. At the same time, it is an important consideration in this case that the delay has largely been caused by the lack of proper diligence by the defendant’s solicitor rather than the defendant. That aspect of the test which involves a consideration of the merits of the proposed appeal has been expressed in a variety of ways in the authorities and it is no doubt linked to the length of the delay and the adequacy of the explanation provided by the defendant. In my opinion, bearing in mind the length of the delay and the explanation for the delay in this case, an extension of time should only be granted if there are substantial grounds for apprehending a miscarriage of justice if it is refused. For reasons I will give, I have reached the conclusion that the point raised in ground 4 satisfies that test, although it must be borne in mind that I am not hearing the appeal. Again, for reasons I will give, the other proposed grounds of appeal do not satisfy the test for granting leave to appeal. In other words, I do not think they are reasonably arguable.
The proposed grounds of appeal are as follows:
“1.The Learned Trial Judge should have excluded the evidence of the complainant at T104 that sexual molestation at the hands of the appellant had occurred after the events which formed the basis of the charges when such evidence revealed criminal activity not charged and which was otherwise irrelevant to any issue in the trial.
2.The Learned Trial Judge erred in failing to direct the jury that they should wholly ignore the evidence of uncharged acts except that if the jury did not accept that evidence, it would raise a very serious question about the complainant’s credibility generally.
2A.The learned trial judge erred in failing to warn the jury not to reason, if they accepted the evidence of uncharged acts, that the appellant had committed similar offences and that the appellant was the sort of person who might commit the crimes charged and find him guilty on that basis.
3.The Learned Trial Judge erred in inviting the jury to consider whether the complainant’s evidence of uncharged acts could have had any bearing on the four charges not being the subject of a complaint for quite a long time, when -
a.      There was no evidence as to when the uncharged acts had occurred, save and except that they occurred at a time after the events which formed the basis of the charges;
b.     There was no evidence of any detail as to the nature of the uncharged acts; and
c.     There was no evidence upon which any meaningful connection between the uncharged acts and the delay in making of the complaint could be inferred.
4.The Learned Trial Judge erred in failing to direct the jury that it would be dangerous or unsafe to convict the appellant in the light of -
a.      The lack of any evidence supporting the complainant’s account;
b.     The inherent unlikelihood of the appellant having sexually assaulted the complainant in the presence of another child and where another adult person was situated on the premises.
c.     The failure of the complainant about the subject matter of the charges for several years;
d.      Inconsistencies in the complainant’s evidence;
e.     The inability of the prosecution in any sens (sic) to damage the credibility of the appellant in cross-examination.
5.In the alternative to Ground 4, the Learned Trial Judge erred in failing to direct the jury that in the absence of evidence that supported or confirmed the complainant’s allegations, the case involved oath against oath and that there difficulties of arriving at a conclusion of guilt beyond reasonable doubt.
6.The Learned Trial Judge erred in failing to direct the jury that they should consider whether the delay in the making of the complaint reflected adversely on the credit of the complainant.
7.In all the circumstances the verdicts of the jury were unsafe and unsatisfactory.”
I assume there are a couple of words missing from 4c. and that it should read:
“c.The failure of the complainant to complain about the subject matter of the charges for several years.”
The defendant submits that ground 1 raises a question of law alone and that therefore leave is not required. The defendant submits that the question whether evidence was correctly admitted raises a question of law. I infer from the way in which the argument was conducted that, out of an abundance of caution, the defendant seeks leave to appeal in relation to ground 1 insofar as it may be necessary.

The first four grounds of appeal raise issues relating to evidence given by A of later uncharged acts. A’s evidence on this topic was as follows:
“QWas that the last time that anything ever happened with you and [B].
ANo.
QWas that the last time that you can remember.
AYes.
QCan you remember anything else that happened.
ANo, I just remember it happening again, but I can’t remember it in full detail or anything like that.
QThe two times that you’ve told us about, the time at Glenelg and the time when you stayed over – when you were playing netball, are they the two times that you remember best.
AYes.
QThat you can remember the most detail about.
AYes.
QBut is this right: do you think it happened again but you can’t remember anything else about it.
AYes.
QDid you tell anyone that night or the next morning.
ANo.”
I do not think that grounds 1, 2, 2A and 3 are reasonably arguable having regard to the judge’s directions to the jury. The judge made it clear to the jury that they must consider each count in the Information separately, and that in relation to each count they should consider only the evidence relevant to that count. The judge referred to the later uncharged acts and he told the jury that unless they were satisfied that the allegation had been proved then it would be of no value at all. The judge did point out to the jury that if they did not accept what A said about the later uncharged acts, then that raised a very serious question about her credibility generally. The judge pointed out to the jury that they may well think the allegation about the later uncharged acts was “too vague to be really of much use at all as a piece of evidence”. The judge pointed out to the jury that they must be satisfied beyond reasonable doubt of the allegations relating to the later uncharged acts and that, even if they were so satisfied, they could not use the evidence to prove any of the charges in counts 1 to 4. The judge pointed out to the jury that it was not permissible for them to find the defendant guilty of any of the charges against him simply because they might be satisfied that some uncharged conduct had occurred. The judge said:
“I have already told you, as a matter of law, that if you do not accept that as proved, then you cannot use it at all, and if you do accept it, you cannot use it in any way in relation to the four counts before you. But if you do accept it as proved to be beyond reasonable doubt, depending on what you make of it, you may wish to consider whether it could have any bearing on these four matters not being the subject of a complaint for quite a long time. Whether you make anything of this bit of evidence and, if you do, what, if any, bearing it has on that topic – that is, the period between 1997 and late 2001 – is entirely a matter for you.”
It is necessary to consider all of the judge’s directions on this topic and when that is done I do not think that it is reasonably arguable that the judge erred in admitting the evidence, or in the directions he gave to the jury as to how they might approach the evidence and the use to which they may put it (R v Nieterink (1999) 76 SASR 56). Although the evidence was very general, there was a basis for thinking that it was relevant, namely, that it might bear upon the delay in the making of the complaint. I would refuse leave to appeal in relation to grounds 1, 2, 2A and 3. Even if ground 1 raises a question of law alone, it is not sufficiently arguable to warrant an extension of time.
In relation to ground 4, it must be noted that the judge made extensive reference to the delay between the alleged offence and the complaint. He referred to the dangers consequent upon delay in terms of both a distortion of recollection and the forensic disadvantage which an accused may suffer by reason of the delay. He told the jury that they should scrutinise A’s evidence with great care and that, unless they were completely satisfied of its truth and accuracy, there could be no question of the accused being convicted. If a comment about the effects of delay was all that was called for then, with respect, the judge’s comments were adequate and appropriate. However, the judge did not give the jury a Longman warning (Longman v R (1999) 168 CLR 79). In other words, he did not say to the jury that because of the delay it would be dangerous to convict on the evidence of C alone unless they (the jury), scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. There seems to be a significant issue on the authorities as to how long the delay between the alleged offence and the complaint must be before a Longman warning must be given (Crampton v The Queen (2000) 206 CLR 161 per Kirby J at 207; R v BWT (2002) 54 NSWLR 241; R v GS [2003] NSWCCA 73). It is certainly arguable on the authorities that a period of four years is a period of substantial delay thereby giving rise to the need for a Longman warning (R v T (1999) 74 SASR 486 per Mullighan J at 499). I would grant leave to appeal in relation to ground 4.
In relation to ground 5, I do not think that this ground of appeal is reasonably arguable. Counsel for the defendant did not refer me to any authority that suggested that such a direction should be given. The judge gave detailed and careful directions to the jury about how they should approach A’s evidence.
In relation to ground 6, the judge did give a direction about the effect of delay on A’s credibility and I do not think that this ground is reasonably arguable.
In relation to ground 7, no particulars are given as to why the verdicts of the jury were unsafe and unsatisfactory, and I do not think that this ground is reasonably arguable.
For the reasons I have given, I would make the following orders:
1.Pursuant to s 357 of the Criminal Law Consolidation Act 1935 the time within which to make the application for leave to appeal insofar as it contains ground 4 is extended to and including 25 July 2003.
2.The application for an extension of time is otherwise refused.
3.Leave to appeal is granted in relation to ground 4.
I would add the observation that even if, contrary to my view, the order extending time should relate to all grounds of appeal once it is justified by reference to one ground of appeal, I would refuse leave to appeal in relation to all grounds except for ground 4.

[2003] SASC 338

26 September 2003