Randhawa v Director of Public Prosecutions (Ruling)
[2023] VCC 1476
•11 August 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL List
Case No. AP-22-1223
| PRABHJIT RANDHAWA | Plaintiff |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 June and 12 July 2023 |
DATE OF RULING: | 11 August 2023 |
CASE MAY BE CITED AS: | Randhawa v Director of Public Prosecutions (Ruling) |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1476 |
RULING
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Subject:CRIMINAL LAW
Catchwords: Appeal from Magistrates’ Court – one charge of reckless conduct engendering serious injury – two charges of making threat to kill – two charges of unlawful assault – one charge of refusing preliminary breath test – one driving vehicle with no numberplate affixed/displayed as required – initially appeal on sentence only in relation to all offences (such appeal in time) – subsequent appeal on both conviction and sentence in relation to the charge of reckless conduct engendering serious injury (such application out of time) application of s263 of the Criminal Procedure Act 2009
Legislation Cited: Criminal Procedure Act 2009, ss254, s255 s256, s259 and s263
Cases Cited:Director of Public Prosecutions v Grivas & Filonis [2023] VSC 260; Kalb v Magistrates’ Court of Victoria [2014] VSC 137; Shire of Carnarvon v Klein Corp Pty Ltd [2008] VSC 24; Director of Public Prosecutions v Muhaidat [2004] VSC 17; R v Ioannou (2007) 17 VR 563; DPP v Archer [2018] VSC 155; Grimanis v Director of Public Prosecutions (Ruling)) [2020] VCC 908; Kohari v R [2017] VSCA 33
Ruling: Leave granted to the applicant to appeal in respect of conviction and sentence in relation to Charge 1
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms N Grunwald | Ghandi Lawyers |
| For the Respondent | Ms C Jones-Williams | Solicitor for the Office of Public Prosecutions |
HIS HONOUR:
1Prabhjit Randwaha, who I shall refer to as the applicant, seeks leave pursuant to s263(2) of the Criminal Procedure Act 2009 (“CPA”) to appeal out of time, the conviction and sentence in relation to the offence of reckless conduct endangering serious injury ordered by the Sunshine Magistrates’ Court on 17 October 2022.
Relevant legal principles
2Section 254(1) of the CPA provides that, when a person who is convicted and sentenced in relation to an offence by a Magistrates’ Court, they may apply to the County Court against the sentence only, or the conviction and sentence. Section 255(1) of the CPA provides that an appeal under s254 of the CPA is commenced by filing a notice of appeal with the Registrar of the Magistrates’ Court within twenty-eight days after the day on which the sentence at the Magistrates’ Court is imposed. Section 256(1) of the CPA provides that an appeal under s254 must be conducted as a rehearing and the appellant is not bound by the plea entered in the Magistrates’ Court.
3I refer to the recent decision of Director of Public Prosecutions (DPP) v Grivas & Filonis ([2023] VSC 260), wherein each of the defendants (Grivas and Filonis) had been convicted and sentenced in a Magistrates’ Court and had filed a notice of appeal against sentence alone within time. Thereafter, each defendant later sought to “amend” their respective notices of appeal in order to appeal against “conviction and sentence”. Leave was granted to amend the original appeal notice which, in turn, caused the Director of Public Prosecutions to apply for judicial review on the grounds of jurisdictional error.
4O’Meara J held that, both in the case of Grivas and Filonis, that the learned judge in each case erred in law by allowing the application to amend the in-time Notice of Appeal against sentence to reflect an appeal against conviction and sentence, in circumstances where leave was required pursuant to s263 of the CPA. In particular, by reason of s263 of the CPA, O’Meara J held that the County Court judges had no jurisdiction to amend the Notice – that is, there was no provision in the Magistrates’ Court Criminal Procedure Rules 2019 (Vic) that would permit amendments of a notice of appeal, nor was the power contained in any other Acts or Rules, or incidental or implied powers of the County Court.
5In particular, s263 of the CPA states:
“(1) A notice of appeal filed after the end of the period referred to in section 255(1) or 258 is deemed to be an application for leave to appeal on the grounds stated in the notice.
(2) The County Court or the Supreme Court, as the case requires, may grant leave to appeal under subsection (1) and the appellant may proceed with the appeal if—
(a) the court considers that the failure to file a notice of appeal within the period referred to in section 255(1) or 258 was due to exceptional circumstances; and
(b) the court is satisfied that the respondent's case would not be materially prejudiced because of the delay.
(3) If the court does not grant leave to appeal under subsection (2), the court must strike out the appeal.
(4)If—
(a) the County Court or the Supreme Court, as the case requires, strikes out an appeal under subsection (3); and
(b) the appellant had been sentenced to a term of imprisonment or detention by the Magistrates' Court—
the registrar of the County Court, Prothonotary of the Supreme Court or the Registrar of Criminal Appeals, as the case requires, may issue, in accordance with the Magistrates' Court Act 1989 , a warrant to imprison the appellant and may recall and cancel that warrant.
(5)If an appeal is struck out under subsection (3)—
(a)the sentence of the Magistrates' Court is reinstated and may be enforced as if an appeal had not been commenced but, for the purposes of the enforcement of any penalty, time is deemed not to have run during the period of any stay; and
(b) the registrar of the County Court, Prothonotary of the Supreme Court or the Registrar of Criminal Appeals, as the case requires, must give to the respondent or to the respondent's legal practitioner a copy of the order striking out the appeal; and
(c)the making of an order striking out an appeal discharges the undertaking of the appellant to proceed with the appeal.”
(Emphasis added.)
Material prejudice
6In this application, counsel for the respondent submitted that the respondent’s case would not be materially prejudiced because of any delay (see s263(2)(b) of the CPA). However, counsel for the respondent submitted that the applicant had not discharged his onus to demonstrate that the lodgement of the appeal in respect of conviction and sentence not being made within the requisite thirty days was due to “exceptional circumstances”.
The concept of “exceptional circumstances”
7I refer to the decision of Kalb v Magistrates Court of Victoria ([2014] VSC 137), wherein the appellant, by Notice of Appeal to the Supreme Court of Victoria dated 5 March 2014, appealed against an order of the Magistrates’ Court of Victoria at Frankston. By virtue of s272(7) of the CPA, an appeal commenced after the end of the period of twenty-eight days after the day on which the Order complained of was made, is deemed to be an application for leave to appeal.
8In particular, s272(8) of the CPA provides:
“The Supreme Court may grant leave under subsection (7) and the appellant may proceed with the appeal if the Supreme Court—
(a) is of the opinion that the failure to commence the appeal within the period referred to in subsection (3) was due to exceptional circumstances; and
(b) is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.”\
(Emphasis added.)
9Section 272(8) of the CPA, although not the same as s263 of the CPA, does have similar wording. In Kalb (op cit), Derham AJA referred to the decision of the Shire of Carnarvon v Klein Corp Pty Ltd [2008] VSC 24, wherein J Forrest J analysed the authorities relevant to the application under s109(5) of the Magistrates’ Court Act 1989 which, for present purposes, is materially the same as s263(2) of the CPA. Such analysis is of some use given its precision.
10His Honour concluded that the authorities stand for, inter alia, the following principles:
(a)the granting of an extension of time is not automatic. Upon the expiry of the time for lodgement of an appeal, the respondent has a vested right to retain the judgement unless the application is granted;
(b)the onus lies on the applicant to satisfy the test of exceptional circumstances;
(c)although “exceptional” is defined as meaning “unusual, special, out of the ordinary course” in the Oxford English Dictionary, in the context of the Act, the circumstances must be such that they can be said to “rarely occur” and “perhaps be outside reasonable anticipation or expectation”;
(d)the enquiry is confined to the circumstances relevant to the applicant’s failure to appeal within time and whether they may be characterised as exceptional;
(e)as part of the enquiry, the court will examine the conduct of the applicant (and his or her agents) in the prosecution of the appeal and the explanation for failing to lodge the Notice within time.
11The words “exceptional circumstances” has been variously defined as follows:
(a) are “right out of the ordinary” (Director of Public Prosecutions v Muhaidat [2004] VSC 17 at paragraph [13]); or
(b) are “clearly unusual or quite special and distinctly out of the ordinary [and are] related to why the appeal was not commenced within the specified time” (see R v Ioannou (2007) VR 563 at paragraph [17]); or
(c) must relate solely to the explanation of the delay (see Shire of Carnarvon (op cit) they “cannot fall within the range of normally anticipated consequences, behaviour or exigencies” (R v Ioannou (op cit) at paragraph [17)].
Obviously enough, the words “exceptional circumstances” clearly must relate clearly to the explanation of the delay (not the merits of any appeal) and are circumstances which rarely occur, or are outside realistic expectations or anticipation.
12Both parties referred to the decision of DPP v Archer [2018] VSC 155, a decision of Bell J, handed down on 6 April 2018. In Archer, the applicant was involved in an incident at a junior football game which led him being charged with unlawful assault. That charge was heard at a Magistrates’ Court on 3 September 2017, when Archer pleaded guilty to the charge after receiving certain legal advice as to the likely outcome of the hearing. That advice apparently followed discussions between his then legal representative and the prosecution.
13Contrary to his expectations, the court convicted Archer and fined him the sum of $2,000 plus costs, and ordered that he pay compensation of $955.
14When the sentence was announced by her Honour, and after the hearing, Archer made clear in various ways that he was unhappy with the outcome of the case, and in particular, on 21 September 2017, within the twenty-eight-day appeal period, his initial legal representative filed with the court, an unsigned Notice of Appeal against sentence only to the County Court of Victoria. At the request of the Magistrates’ Court at Heidelberg, Archer’s then legal representatives later asked him to sign the Notice, but not that this had to be done urgently.
15Archer sought legal advice from a barrister in early- to mid-October 2017, who did not tell him that he could appeal against both sentence and conviction (notwithstanding his plea of guilty at the Magistrates’ Court) or that the time limit was twenty-eight days.
16A Notice of Appeal was ultimately signed and filed, but only against sentence.
17Archer retained different legal representatives who were criminal law specialists, late in October 2017, and at that time, for the first time, he was advised that he could appeal against both sentence and conviction. Through his new solicitors, Archer made application for leave to appeal against both sentence and conviction in late-October 2017 – being well outside the requisite twenty-eight days.
18The application for leave to appeal was heard before His Honour Judge Grant on 21 September 2017. Against the opposition of the prosecution, His Honour granted leave for Archer to file a Notice of Appeal in relation to conviction and sentence.
19Under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), the Director of Public Prosecutions sought an order from the Supreme Court by way of judicial review quashing the grant of leave. It was contended that His Honour Judge Grant, misapplied s263(2)(a) of the CPA in which a test of exceptional circumstances was specified. It was noted by the presiding Judge, Bell J, that:
(a)it was not part of his function in determining the application for a judicial review to reconsider, on the merits, the application for leave to appeal. It was incumbent upon the Director of Public Prosecutions to establish legal error, such as jurisdictional error or failure to consider relevant considerations, or considering irrelevant considerations on the part of Judge Grant;
(b)it was common ground that s263(2)(a) confers a discretion to grant leave to appeal after the twenty-eight-day period has expired. To enliven that discretion, an applicant must establish that the failure to lodge a Notice of Appeal within the time was due to exceptional circumstances.
In their written submissions by counsel appearing before Bell J, the parties referred to principles discussed in various authorities which the judge considered, including Schwerin v Equal Opportunity Board [1994] 2 VR 279; R v Ioannou (2007) 17 VR 563; Owens v Stevens (unreported, Supreme Court of Victoria, Hedigan J, 3 May 1991); M.A.C. v R (2012) 34 VR 193; Coulston v State Coroner of Victoria [2018] VSC 103 and Kohari v R [2017] VSCA 33, a decision of the Court of Appeal (consisting of Weinberg and Kyrou JJ) handed down 1 March 2013.
Bell J noted that Redlich JA (with the agreement of the other members of the Court of Appeal) in Ioannou (op cit), the “exceptional circumstances” must be such as to rarely to occur, and clearly unusual or quite special, and distinctly out of the ordinary, and be related to why the appeal was not commenced within the specified time (see Ioannou (op cit) at [17]);
(c)Bell J noted that in the reasons given by his Honour Judge Grant, there was no reliance on him granting leave based on the merits of what occurred at the hearing before the Magistrate. Any such reference was more of background information. Bell J made clear if Judge Grant had decided to grant leave to appeal because Archer was unhappy with the outcome of the hearing, he would have quashed the decision because that is not what the statutory test requires;
(d)Bell J noted that the central consideration informing his Honour’s decision was that Archer’s evidence was that he was initially not given certain legal advice. The legal advice that he was given was incomplete or inadequate and that he later acted promptly when he was given proper legal advice by his present legal representatives.
Bell J commented that the submissions made by the Director of Public Prosecutions that it might not be enough for an applicant for leave to appeal to plead ignorance of the law or rely on the inadequacy of legal advice. Bell J referred to the Supreme Court decision of Kalb v Magistrates’ Court of Victoria (op cit), as an example of leave being refused in that kind of case, but in the present case, Bell J noted the period of delay was only a few weeks.
It was also noted by Bell J that it would have been a legal error for the Judge to grant leave to appeal upon the basis that Archer was incompetently advised to plead guilty. Bell J noted that this was not enough and also noted that His Honour Judge Grant did not so proceed on that basis and his plea in the Magistrates’ Court was not the real issue. As Bell J noted, both s254(1) and s256(1) of the CPA, under which Archer was entitled to appeal to the County Court against both sentence and conviction whatever plea he entered in the Magistrates’ Court.
20Ultimately, Bell J dismissed the application for judicial review.
Sequence of events
21There is no issue that the following events occurred:
(a) On 17 October 2022, the Sunshine Magistrates Court convicted the applicant in respect of the following offences:
(i)reckless conduct endangering serious injury, contrary to s23 of the Crimes Act 1958 (Charge 1);
(ii)make two threats to kill contrary to s20 of the Crimes Act 1958 (Charges 3 and 4);
(iii)two unlawful assaults contrary to s23 or s24(1) of the Summary Offences Act 1966 (Charges 6 and 7);
(iv)refusing to undergo a preliminary breath test contrary to s49(1)(c) of the Road Safety Act 1986 (Charge 8);
(v)driving a vehicle without numberplates affixed to the front/rear, such offence contrary to regulation 49(1) Road Safety (Vehicle) Interim Regulations 2020;
The applicant was sentenced to three months’ imprisonment in relation to Charge 1, followed by an eighteen-month community correction order, licence cancellation with a disqualification period of four years, together with a compensation order of $30,284.60. In relation to the other offences, the applicant was found guilty and sentenced to the Community Correction Order made in relation to Charge 1;
(b) On 17 October 2022, the applicant lodged a sentence-only appeal in relation to the sentence ordered against him as a result of the convictions;
(c) On 22 May 2023, the applicant lodged a conviction and sentence appeal in relation to Charge 1 only. The last day for filing such an appeal was 14 November 2022, making the date of lodging the appeal 189 days out of time;
(d) The matter came before this court on 6 June 2023 and was adjourned, unopposed, at the request of the respondent, to enable adequate time to prepare his appeal.
The evidence in this appeal
22In support of the application made under s263(2) of the CPA, the applicant relied upon an affidavit affirmed by him on 5 June 2023. The applicant gave evidence that the contents of the affidavit were true and correct, and that he did not wish to change anything contained within the affidavit. The affidavit was then tendered in evidence and marked as exhibit 1.
23In that affidavit, the applicant deposes as follows:
· Following the incident on 11 September 2021, which gave rise to the charges, he engaged a solicitor in “late September 2021” to represent him at the Sunshine Magistrates Court.
· From the date of engagement leading up to his convictions on 17 October 2022, he had “approximately 3-4 telephone conferences with this solicitor”.
· The matter proceeded through “mention stage” and his solicitor conducted a summary case conference.
· After the summary case conference, his solicitor “advised [him] that as [the solicitor] had reduced the number of charges, [he] would be able to get a better outcome”.
· In particular, the applicant deposed that he had “never [been] advised about [his] right to plead guilty or not guilty”. The charges were never explained to him and it was never explained to him about the elements of the charges. He was advised that he would lose his licence for two years and that, most likely, he would avoid a jail term.
· Prior to the plea hearing, his solicitor and he discussed what would happen if he were sentenced to jail and it was agreed he would apply for appeal bail and lodge an appeal in relation to such sentence. In particular, he deposes, “[he] did not understand that [he] could appeal conviction as well as sentence”.
· On 17 October 2022, after he was sentenced to a total effective sentence of three months’ imprisonment, together with an eighteen-month community correction order, the then solicitor lodged an appeal against sentence and the applicant was released on appeal bail on the same day.
· He received an email from his then solicitor on 18 October 2022, wherein the solicitor confirmed the outcome of his court proceeding. Such email did not contain any advice about his right to also appeal conviction, and he was not aware that he had twenty-eight days to appeal such conviction.
· The first listing of his appeal, in relation to sentence only, was on 7 March 2023.
· He instructed new solicitors and his first contact with his new solicitors – Mr Amarinder Gandhi of Gandhi Lawyers ꟷ was on 8 February 2023, which was followed by a telephone conference with his barrister in late February 2023.
· Mr Gandhi sought an adjournment of the appeal on 7 March 2023 “so that [he] could have further time to pay [his] lawyers and prepare [his] case”.
· In late April 2023, he had a further conference with his barrister and, during this conference, his charges were explained to him. In particular, the barrister advised him he could apply for leave to appeal conviction out of time and the appellant instructed him that he wanted to do this.
· He understood that his barrister then contacted Sunshine Magistrates’ Court about lodging a conviction appeal and then, on 8 May 2023, he received an email from Mr Gandhi directing him to Sunshine Magistrates’ Court to lodge the conviction and sentence appeal. He attended on 9 May 2023 and lodged such an appeal on that day.
· On Friday, 19 May, he was advised by Mr Gandhi there was an error with the appeal paperwork that he signed and that he had to re-attend Sunshine Magistrates’ Court to re-sign the paperwork. He attended the next business day, that being Monday, 22 May 2023, to attend to re-sign the paperwork.
· Finally, the applicant deposes that:
“I seek leave to appeal my conviction out of time, as I believe I was not properly advised prior to my plea at Sunshine Magistrates’ Court. Had I been properly advised, I would not have pleaded guilty to Charge 1, reckless conduct endangering life.”
24Under cross-examination, the applicant gave the following salient evidence:
(a) That the email dated 18 October 2022 that he received from the solicitors who acted for him at the Magistrates Court hearing, was the last contact he had with those solicitors. When queried as to when he decided to seek alternative advice, the applicant first stated that he decided to get such advice about a month prior to him engaging his present solicitors on 8 February 2023. In particular, he gave evidence that, from November 2022, he was “concerned”, in particular, in relation to Charge 1, which involved a sentence of three-months’ imprisonment;
(b) The applicant gave evidence that it took him two or three months to engage the new solicitor because of ongoing financial difficulty, largely brought about by his cancellation of licence and the ending of his employment as a truck driver;
(c) When he had first contact with his new solicitors on 8 February 2023, there was no discussion about his right to appeal against his conviction in relation to the first offence. The solicitor arranged for him to have a conference with a barrister, initially in late February 2023, which consisted of a telephone conference of approximately twenty-five to thirty minutes duration, and a further telephone conference in late April 2023, with the same barrister;
(d) The applicant initially gave evidence that, when he consulted with the barrister for the first time in late February 2023, he considered the barrister did raise his right to appeal against conviction and, indeed, that was the first time he had ever been told about that particular right;
(e) The further conference, in late April 2023, with the barrister was arranged by his new solicitor, Mr Ghandi;
(f) When the applicant was further cross-examined about when he got the advice in relation to his right to appeal against conviction, he gave evidence that, in the first conference with the barrister in late February 2023, he explained the circumstances of the subject offending and those events leading up to the Magistrates’ Court hearing on 17 October 2022.
When pressed by the Court as to whether it was on the February date or the later date in April when he was told about such right, the applicant stated, “[to] be honest – not 100 per cent sure”.
Submissions of the parties
25Both parties tendered written submissions:
(a) counsel acting on behalf of the applicant tendered a document headed “Applicant’s Outline of Submissions” and such document was marked as exhibit 2;
(b) counsel acting on behalf of the respondent tendered a document headed “Respondent’s Submissions” and such document was marked as exhibit “A”.
26In her written submissions, counsel for the applicant submitted:
“In the present case, in examining the conduct of the Applicant, the following can be noted;
a)Following his conviction and release on appeal bail on 17 October 2022, the Applicant had an initial appointment with a new legal representative on 8 February 2023. It is submitted that this delay is not unreasonable, as at that time, the Applicant’s appeal was listed for 7 March 2023 and he was not aware of his right to appeal conviction.
b) On 8 May 2023, upon receiving correspondence from his solicitor to attend at Sunshine Magistrates Court to lodge a conviction appeal, the Applicant acted promptly and attended the next day, being 9 May 2023.
c) On 19 May 2023, upon being advised by his solicitor that there was an error in the paperwork, the Applicant re-attended Sunshine Magistrates Court on next business day to re-sign his paperwork.
d) The period of delay from 9 May – 22 May 2023 was not attributable to the Applicant
The Applicant has deposed in his affidavit that his legal advice was incomplete and that he was not advised;
a. Of the elements of the charges
b. That he had a right to plead not guilty to the charges
c. That he had the right to appeal conviction as well as sentence
d. That he had 28 days to lodge an appeal against conviction
Courts have recognised that incomplete or inadequate legal advice can amount to exceptional circumstances [reference being made to Archer (op cit); Grimanis v Director of Public Prosecutions (Ruling)) [2020] VCC 908]
Courts have also distinguished incomplete or inadequate legal advice from ignorance of the law [reference was made to Kalbv Magistrates’ Court of Victoria [2014] VSC 137]. It is submitted that the Applicant’s situation falls in the former category.”
27In her written submissions, counsel for the respondent submitted:
“The Respondent has received the affidavit of Prabhjit Randhawa, which outlines that exceptional circumstances exist on the basis of inadequate legal advice provided by his initial Solicitor. The Respondent does not consider that exceptional circumstances are established, as inadequate legal advice of itself does not constitute exceptional circumstances [reference was made to Kalb v Magistrates’ Court of Victoria [2014] VSC 137]. The present instance can be contrasted with Archer, in which the Appellant acted promptly in both seeking and acting upon new legal advice [reference was made to DPP v Archer [2018] VSC 155 at paragraph 8]. Mr Randhawa did not seek alternate legal advice until 8 February 2023, 114 days after lodging the notice of appeal against sentence. Further, although advised of the option to file a notice of appeal against conviction and sentence in ‘late April’, this did not occur until 9 May 2022, [reference was made to the affidavit of the applicant, dated 5 June 2013 at paragraphs 14 and 16, albeit with errors, and was finally filed on 22 May 2023].
Moreover, an approximate 3-month delay between Mr Randhawa first seeking legal advice from a new lawyer in February, and filing the notice of appeal against conviction and sentence in May, detracts from the merit of any submission that exceptional circumstances exist. The effect of this delay is heightened by the fact that this matter was administratively adjourned the day before its initial listing on 7 March 2023, on grounds unrelated to changing the appeal type.
In light of the above, the Respondent does not concede that exceptional circumstances have been made out and submits that it is for the Appellant to establish that exceptional circumstances have been made out.”
28Counsel for the applicant, when speaking to her submissions, drew a comparison between the subject circumstances in respect to the applicant’s delay to lodge a conviction and sentence appeal, with those circumstances described in Archer (op cit), save that the delay in Archer (op cit) was shorter than the delay which occurred in the circumstances in this matter.
29In particular, counsel referred to paragraph 8 of Archer (op cit), wherein Bell J stated:
“I would accept the submissions made by the DPP that it might not be enough for an applicant for leave to appeal to plead ignorance of the law or rely upon the inadequacy of legal advice. Kalb v Magistrates’ Court of Victoria [citation given] is an example of leave being refused in that kind of case. But in the present case, the period of delay was only a few weeks. On the judge's findings, it was wholly explained by an unfortunate sequence of events related to plainly inadequate legal advice given to Mr Archer, for which events his Honour found Mr Archer was not responsible. At no time did Mr Archer sit on his hands. He was not the author of his own misfortune. He consistently worked the issues through until he ultimately retained specialist criminal lawyers and then acted promptly on their advice, as the judge found.”
30It is also worth referring to the following paragraph 9, of that decision, wherein Bell J stated:
“It would have been a legal error for the judge to grant leave to appeal upon the basis that Mr Archer was incompetently advised to plead guilty. This in itself would not have been enough. But his Honour did not so proceed and his plea in the Magistrates’ Court was not the real issue. Under ss 254(1) and 256(1) of the Criminal Procedure Act, Mr Archer was entitled to appeal to the County Court against both sentence and conviction whatever plea he entered in the Magistrates' Court. An appeal must be conducted as a rehearing in both kinds of appeal. His Honour discussed the plea of guilty in the Magistrates' Court because it was related to the issue of the legal advice he was given generally, which included his appeal rights and the procedure to be adopted in that regard, albeit that on Honour's findings the advice was not complete in relation to these matters. On the found facts, these matters were centrally related to whether the delay was due to exceptional circumstances, and indeed it would have been an error of law for his Honour to ignore them. Therefore, in my view, this was not a case in which Mr Archer's found ignorance of the law was irrelevant. It necessarily went into the mix in relation to the explanation for the delay.”
31Counsel for the respondent, when speaking to her submissions, primarily submitted that the delay in time from when the applicant was concerned about his position after the Magistrates’ Court hearing, until such time that he instructed his present solicitors, was essentially due to a lack of funds, which are not exceptional circumstances.
32Counsel for the respondent did accept that, once the applicant was informed that he had a right to appeal conviction and sentence, notwithstanding his plea of guilty in the Magistrates’ Court, he acted promptly in seeking to lodge such appeal. In particular, counsel for the respondent accepted – correctly in my view – that the applicant acted promptly when obtaining advice on 8 May 2023 from his current solicitor to lodge a conviction and sentencing appeal. He acted promptly by attending the court on 9 May 2023, lodging the appeal on that day, and also followed up promptly when again advised by Mr Ghandi that there had been an error in the appeal paperwork, attending again on the next business day, 22 May 2023, to re-sign the paper work. It is common ground that any delay over this period was not unreasonable.
33Counsel for the respondent urged the Court that, on the basis of the evidence, any finding as to when the applicant knew of his right to lodge a conviction and sentence appeal was, on the basis of his cross-examination, likely to be as a result of the first conference with the barrister, rather than the second, as deposed in the affidavit.
34Counsel for the respondent, although accepting that there were some similarities between Archer (op cit) and the present circumstances, also referred to paragraphs 8 of that decision and noted that Bell J, when referring to the judge’s findings at first instance, noted that, “it was wholly explained” by an unfortunate sequence of events relating to obtaining inadequate legal advice given to Archer. In this respect, she submitted it could not be said that any inadequate legal advice wholly explained the sequence of events, given that there was delay brought about by the financial situation suffered by the applicant.
35I should also add, counsel for the applicant made clear that she was not relying on the applicant’s financial circumstances to constitute “the exceptional circumstances” – but did submit his financial circumstances was the context in which the “plainly inadequate legal advice” was given to the applicant.
Disposition of the Application
36It is apposite, before making any finding of facts, to make a finding as to the credibility of the applicant. Counsel for the respondent, in her cross-examination, did not challenge the credibility of the applicant and made no submissions as to his credibility.
37After hearing the evidence of the applicant, I am satisfied he was a credible witness.
38Accordingly, I do accept the contents of his affidavit and, in particular, the dates he deposes to and his stated knowledge at any particular time.
39Also, I do find that it was probable that the applicant was advised by the barrister as to his right to appeal both conviction and sentence during the second conference with the barrister in late April 2023, although I appreciate his evidence during cross-examination that he was unsure whether it was that date or at the time of the earlier conference,
40I do note the following, which gives support to the later date:
(a) He did depose in his affidavit, initially that the information was given to him on the second occasion;
(b) I consider such information being given on the second occasion is consistent with that, on the first occasion when he attended the barrister there was general discussion as to the circumstances leading up to his conviction at the Magistrates’ Court, the circumstances constituting the alleged offending and what his understanding of the situation was. Clearly enough, a second conference was required and, consistent with his affidavit material, the barrister informed him about the elements and possible defences, and his right to appeal the conviction. Such a situation is reinforced, in that, shortly after the occurrence of that conference, the applicant was contacted by his new solicitor to lodge a conviction appeal, the details of which are set out in the affidavit;
(c) It is also to be noted in the submissions made by counsel for the respondent, that the sentence only appeal listed on 7 March 2023 was administratively adjourned on that day on grounds unrelated to changing the appeal type. One would have expected that, if in late February 2023 the applicant had been given information about changing the appeal type, that would have been stated as one of the grounds for adjourning the matter. The absence of any comment about that does suggest that the applicant had not been given any information at that time, or knew about that issue.
41Furthermore, I do find that, through inadequate legal advice, the applicant had been given no information of his right to plead guilty or not guilty to offences at the Magistrates’ Court, the nature of the offences and, in particular, the elements in relation to Charge 1. Further, he pleaded guilty on the advice of his solicitor, and in particular, and importantly, he was only ever advised that he had a right to appeal on sentence, with no information whatsoever of his right to appeal conviction and sentence, notwithstanding that he had pleaded guilty, in particular, to Charge 1. Such legal advice was clearly inadequate and incomplete.
42I also find that, when the relationship with the first solicitor came to an end after the receipt of the email dated 18 October 2022, the applicant, having such inadequate and incomplete legal advice, could only realistically understand that his rights were limited to an appeal on sentence only, listed for 7 March 2023. Clearly, the applicant would have had an understandable concern about the consequences of Charge 1 – there being a three-month period of imprisonment hanging over his head. Again, it is clear he did instruct his new solicitors in contemplation of a sentence-only appeal.
43I do find, when he was advised of that right at the time of the second conference with the barrister, I consider that he acted promptly and appropriately on exercising that right.
44Accordingly, I accept the submissions of the applicant in this matter and rule, pursuant to s263(2) of the CPA, that the applicant be granted leave to appeal under ss(1), as I consider the failure to file a notice of appeal within the period specified was due to exceptional circumstances, being the nature and extent of inadequate and incomplete legal advice, and that there would be no material prejudice to the respondent because of the delay. I do not consider that he has sat “on his hands” at any relevant time.
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