Legal Research
Cases
R v Davis

R v Davis

Case [2003] VSCA 173 30 October 2003

Appeal

Limitation Periods

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 41 of 2003

THE QUEEN

DAVID ALAN DAVIS

---

JUDGES:	WINNEKE, A.C.J., PHILLIPS and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 October 2003
DATE OF JUDGMENT:	30 October 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 173

---

Criminal Law – Application for extension of time to appeal against conviction and sentence – Principles enunciated – Long delay in making application requiring such merits in proposed appeal that it would probably succeed – Application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr O.P. Holdenson, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M.J. Croucher	Leanne Warren & Associates
WINNEKE, A.C.J.:

This is an application by David Davis seeking leave to extend the time for appealing against both conviction and sentence, recorded and imposed in the year 2000. The applicant was tried in that year on a presentment alleging 66 counts of various sexual offences involving a twelve-year-old girl. He pleaded not guilty and evidence was given by the complainant by means of a VATE tape procedure. Verdicts of guilty were returned ultimately on 21 counts and he was found not guilty, either by direction or by jury verdict, on the other counts. The judge sentenced him to a total effective sentence of nine years and fixed a non-parole period of six years.
On 25 September 2000 the applicant sought leave to appeal against the sentences which had been imposed upon him and did so on the sole ground that those sentences were excessive.
In February 2001 the sentence application came before a judge of this Court pursuant to s.582 of the Crimes Act. That application was rejected.
Now, more than three years after his trial, the applicant wishes to appeal against his convictions and the sentences imposed. The application for extension of time has now been made to this Court in accordance with s.572 of the Crimes Act.
The bases upon which this Court will grant an application to extend time for leave to appeal against conviction and/or sentence are not in doubt. Those bases were conveniently summarised by Gowans, J. in the case of Darby[1] and encapsulated in the reasons for judgment of the Full Court in the case of O’Keefe[2]. They have been followed in this Court subsequently in numerous applications, including R. v. Martin[3], R. v. Craker[4] and other cases. As Gowans, J. said in the case of Darby:
[1] Unreported, 2 May 1975.
[2] [1979] V.R. 1 at 5.
[3] [2002] VSCA 16.
[4] [1999] VSCA 63 at [14].
“The principles which govern an application for extension of time are
as follows:

(1)

the prescription by the statute of the time limit for giving notice is intended to secure finality, and compliance is intended to be required in the ordinary case;

(2)

extension of the time is a matter for discretion of the Court, and the applicant must put material and considerations before the Court which will persuade…

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 R v Davis

Details

AGLC: R v Davis [2003] VSCA 173
Case: [2003] VSCA 173
Decision Date: 30 October 2003

CaseChat Overview and Summary

In the case of R v Davis, the respondent sought an extension of time to appeal against both his conviction and sentence. The application was heard in the relevant appellate court. The primary issue before the court was whether the application for an extension of time to appeal should be granted, considering the substantial delay in lodging the application. The court had to assess the merits of the proposed appeal and determine if they were compelling enough to warrant an extension of time.

The court examined the principles guiding extensions of time in appeals and found that the delay in making the application was significant. For the application to succeed, the proposed appeal would need to have such strong merits that it was likely to succeed. The court meticulously evaluated the respondent's arguments and evidence, weighing them against the stringent criteria for granting an extension. Ultimately, the court concluded that the merits of the proposed appeal were not sufficiently strong to justify the long delay, and therefore, dismissed the application for an extension of time.

In light of the court's decision, the application to extend the time for the appeal was dismissed. The respondent was not granted the extension, and the conviction and sentence remained final. The court's ruling emphasised the importance of timely appeals and the high threshold that must be met for an extension of time to be granted.

Orders