R v Knight
[2004] VSCA 48
•25 March 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 25 of 2003
| THE QUEEN |
| v. |
| PETER JAMES KNIGHT |
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JUDGES: | BATT, J.A. and SMITH and O'BRYAN A.JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25 March 2004 | |
DATE OF JUDGMENT: | 25 March 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 48 | |
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APPLICATION FOR EXTENSION OF TIME (ELECTION)
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CRIMINAL LAW: Procedure - Extension of time for applying for leave to appeal against conviction - No arguable ground - Refused.
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Gyorffy | Ms K. Robertson, Solicitor for Public Prosecutions |
For the Applicant | In Person |
BATT, J.A. (for the Court):
The Court has before it an application by Peter James Knight for extension of time within which to lodge notice of application for leave to appeal against conviction, the Registrar having on 21 October 2003 refused the application and the applicant having given notice of his election under s.582A of the Crimes Act 1958 to have it determined by the Court of Appeal, which is authorised to extend the time by s.572.
The applicant, who is unrepresented today as he was at his trial, and who did not call or give any evidence at the trial, was on 23 April 2002 found guilty by a Supreme Court jury of the murder of a security guard at an abortion clinic. On 19 November 2002 he was sentenced to life imprisonment with a non-parole period of 23 years.
The time prescribed by s.527 for giving notice of application for leave to appeal against conviction is 14 days and so the last day in this case was 3 December 2002. The applicant knew of the 14-day time limit and that it ran from sentence, but says that, because he was in the Melbourne Assessment Prison for all but the first day of that period and could not there get access to needful documents and stationery, he was unable to give notice in time. He says that he was unaware that an extension of time could be sought until told of this by a visiting Legal Aid solicitor some five months afterwards. That is strange as the very paragraph in the book he relied on for the time not starting until sentence, Fox, Victorian Criminal Procedure, also deals, and deals clearly, with extension of time. (It is paragraph 11.2.2.2 in the 1992 edition. The judge at p.4 of the transcript caused a copy of this book to be provided to the applicant). In any event, the applicant gave notice of the present application on 14 May 2003.
In that notice the applicant states two grounds of appeal, in each case at the end of submissions leading to the statement of the ground. Those grounds are:
"Ground number 1 for appeal against conviction:
The trial judge has unfairly and improperly deprived me of my right to an impartially and randomly selected jury pool to such a degree and with such an effect that he has very greatly diminished my legitimate chance of obtaining jurors from the section of the population most likely to consider me to be innocent. Such section of the population having every right to their random chance of obtaining jury selection without being directed to exclude themselves from the jury pool by no less authority than the presiding judge"
And:
"Ground number 2 for appeal against conviction:
The obviously not nearly learned enough trial judge has erred exceedingly in his charge to the jury by reason of omission in that he failed to ensure that jurors had not been misled by a deceitful and damaging instruction given by the prosecution barrister, that jurors MUST base their verdict on the law."
The first ground is based on a passage at page 27 of the transcript before the jury was empanelled. It reads:
"HIS HONOUR: I have one further matter and then I will give Mr Knight a chance to say anything more he wants to say. It seems to me that this would be a case where it would be prudent to raise with the panel members whether they have strong views about abortion, such as that it might affect their capacity to be impartial.
MR MORGAN-PAYLER: Yes.
HIS HONOUR: That could mean strong views either way.
MR MORGAN-PAYLER: Yes.
HIS HONOUR: There is always a question as to where you draw the line, but they would have to seek to be excused and they have to explain what their views are and then I draw the line in the sand that one always has to draw.
MR MORGAN-PAYLER: Yes.
HIS HONOUR: Do you have anything to say about that?
MR MORGAN-PAYLER: I think it would be prudent in this case.
HIS HONOUR: Do you have anything to say about that, Mr Knight?
ACCUSED: No.
HIS HONOUR: Are you content for me to adopt that course?
ACCUSED: Yes, I would be."
Shortly after that His Honour left the Bench. The transcript records that there was a short adjournment and that upon resuming "in the presence of the jury pool". His Honour addressed the jurors, "ladies and gentlemen of the jury" and spoke of them as "now empanelled as the jury" and as being "judges".
There is no record of the actual empanelment nor any record of what His Honour told the pool, but it appears that he must have carried out his earlier announced proposal. That is the factual basis underlying the applicant's first ground.
The second ground is based on the prosecutor's statement to the jury at p.336 of the transcript towards the end of his closing address where after repeating a warning not to be swayed by sympathy or prejudice, particularly on the question of abortion, he told the jury that their verdict was one "that must be based on the evidence, it must be based on the law. His Honour will again remind you in more detail of the elements of the crime of murder."
The members of the Court have studied the relevant material in the application book. The applicant told the court this morning that he had said all he needed to say in his written material, which is the notice of application now before the court consisting of ten pages, or nine if the front sheet is disregarded, and a response to the affidavit by Mr Castle sworn 17 October 2003 on behalf of the respondent, that response consisting of nine pages. We would add that, this being the case where the applicant is unrepresented, we have been informed by the prosecutor that he can see no matter which would assist the applicant.
As regards the first proposed ground, the statement which at p.27 of the transcript His Honour said that he would give and which we are satisfied he did give the jury panel was, in the Court's view, entirely appropriate in this case, if not indeed necessary.
The applicant argued that only anti-abortion members of the panel would be impartial because only they were even-handed towards the unborn as well as the born, so that the invitation to them to apply to be excused led to a jury that was not impartial. The pro-abortion members of the panel he asserted were partial. This argument is fallacious. The impartiality in question under the Juries Act 2000 is impartiality between the Crown and the accused on the question whether the accused was guilty of, in this case, murder.
We turn to another matter. It is clear from p.27 that the applicant concurred in and agreed to the course which His Honour proposed. By itself that would be an almost insuperable hurdle to success on this ground. But in his notice given on 14 May 2003 the applicant disputes that, saying that all he was being asked was whether he would be content "to see this judge be foolish enough to give grossly improper directions to the jury pool. And not being a complete fool myself, and being mindful that what had been promised or proposed by the judge, would constitute sure fire grounds to get an appeal upheld, then, quite naturally, I was perfectly content to see this judge make a blunder of such magnitude." Later in the notice he stated that he was, "100 per cent content to see him give the direction when he had never asked for and never obtained my consent." This argument is specious and we reject it. But, if accepted, it would show that the applicant was storing up an appeal point without trying to dissuade the judge from falling into the asserted error. That in itself would be a reason for not allowing the first ground to be argued. It is to be noted that the argument does not feature in the later document from the applicant, the response to Mr Castle's affidavit. There, rather, it is said in substance that the applicant did not understand the implications of the proposed direction. That, of course, raises difficulties of internal inconsistency in the applicant's contentions.
As to the second proposed ground, it is sufficient to say that the statement of the prosecutor was entirely proper and fair and His Honour was not required, as it were, to counter it or eliminate it in his charge or when the statement was made.
The foregoing are sufficient reasons to show that the proposed grounds have no prospect of success. The present application seeks a discretionary indulgence. The principles governing applications for extension of time for applying for leave to appeal are set out in R v. O'Keefe[1], adopting R v. Darby[2]. Reference may also be made to Director of Public Prosecutions v. Craib and Coad[3] (an application by the Director of Public Prosecutions) and cases there cited, and R v. Brown and Chandler[4], R v. Craker[5], R v. Rickard[6] and R v. Davis[7]. The principles need not be set out, but it should be noted that, having regard to the reason for the prescription of time for applying for leave to appeal and the shortness of the time prescribed, they are fairly stringent. In general, special and substantial reasons are required. The ultimate question is whether justice requires the grant of an extension.
[1][1979] V.R. 1 at 5.
[2]Unreported, Full Court, 2 May 1975.
[3](2001) 3 V.R. 388.
[4][1985] 2 Qd.R. 126.
[5][1999] VSCA 63.
[6][1999] VSCA 64.
[7][2003] VSCA 173.
In the view of the Court it does not do so in this case, nor are the principles in R v. O'Keefe satisfied. The court is prepared to accept, without deciding, that a credible and sufficient explanation of delay has been given, but, for reasons that include those already stated, the applicant has failed to show any reasonably arguable ground of appeal, let alone one that would probably succeed. The application therefore fails.
The Court accordingly orders: the application for an extension of time within which to lodge notice of application for leave to appeal against conviction is refused.
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