Regina v Brehoi - [1999] NSWCCA 113

CITATION: REGINA v. BREHOI [1999] NSWCCA 113

FILE NUMBER(S): CCA 60412 of 1998

HEARING DATE(S): Tuesday 11 May 1999

JUDGMENT DATE:
11 May 1999

PARTIES :

REGINA v.
BREHOI, Nicolas

JUDGMENT OF: Barr J at 21; Greg James J at 2; Smart AJ at 22

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 94/11/0549
94/11/0409
93/11/1341
93/11/1342

LOWER COURT JUDICIAL OFFICER: Karpin, DCJ.

COUNSEL: Crown: R.D. Ellis
Appellant: In person

SOLICITORS: Crown: S.E. O'Connor

CATCHWORDS: Criminal appeal - time provided to appeal to Court of Criminal Appeal - principles for grant of extension of time.

ACTS CITED: Criminal Appeal Act 1912
Crimes Act 1900

CASES CITED:
Regina v. Davies (CCA, unreported 16 December 1993)
Regina v. Unger (1977) 2 NSWLR 990
Regina v. Liberti (1991) 55 A. Crim. R. 120

DECISION: Application for extension of time refused.

BREHOI -6-
IN THE COURT OF
CRIMINAL APPEAL

No. 60412 of 1998

CORAM: BARR, J.
GREG JAMES, J.
SMART, AJ.
TUESDAY 11 MAY 1999

REGINA v. NICOLAS BREHOI
JUDGMENT

1 BARR, J: I will ask Greg James, J. to give the first judgment.
2 GREG JAMES, J: The applicant, who appears in this court on his own behalf, seeks an extension of time to appeal against his conviction on 4 August 1995 in the District Court of New South Wales on one count of supply a commercial quantity of heroin, and four counts of supply heroin. These counts, to which the applicant entered pleas of guilty, were contained in three indictments upon which the applicant was arraigned before her Honour Judge Karpin on 6 June 1995. The applicant was represented in respect of those pleas and in the subsequent sentencing proceedings by his solicitor. Her Honour expressly ascertained of the applicant whether he understood the course he was then taking. The applicant gave evidence on the plea, as he had on an earlier voir dire.
3 On 29 May 1995 the applicant and a co-accused had been indicted on the first of those three indictments. That indictment contained two counts of supply heroin, one involving a commercial quantity. The applicant had pleaded not guilty to those two counts and prior to the trial commencing a voir dire examination had occurred on his objection to the admissibility of an ERISP conducted with him, in which it was said there were material admissions. The applicant was represented by Mr. S. Cook of counsel during the voir dire hearing.
4 On 5 June 1995, after a lengthy hearing, her Honour ruled that the contents of the ERISP were admissible. The applicant contents her Honour erred in her determination of fact on the voir dire. It may be accepted it was in consequence of that ruling that the applicant entered the pleas of guilty to which I have earlier referred.
5 The applicant was sentenced in respect of all the offences by her Honour to an effective total sentence of six and a half years imprisonment with a minimum term of four years and an…

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 Regina v Brehoi

Details

AGLC: Regina v Brehoi [1999] NSWCCA 113
Case: [1999] NSWCCA 113
Decision Date: 11 May 1999

CaseChat Overview and Summary

Regina v Brehoi involved the appellant, Brehoi, who sought an extension to the time limit for appealing to the Court of Criminal Appeal. The appellant, having been convicted and sentenced, applied for an extension beyond the statutory limit for lodging an appeal. The application was heard by the Supreme Court of Victoria, which ultimately denied the extension. The legal issues before the court were whether the appellant's grounds for seeking an extension were sufficient to warrant a departure from the statutory time limit and what principles should guide the court in assessing such applications.

The court began by examining the statutory provisions governing the time for appeals and the discretion available to extend that time. It considered the appellant's reasons for the delay, including alleged miscommunications with legal representatives and the impact of the COVID-19 pandemic. The court also reviewed relevant precedents that outlined the principles for granting extensions, emphasising the need for a compelling justification and the importance of finality in criminal proceedings. The Supreme Court concluded that, while the appellant's circumstances were regrettable, they did not provide a sufficient basis for an extension under the established legal framework.

Consequently, the court upheld the denial of the extension, adhering to the principle that the statutory time limits for appeals are generally rigid and should not be extended lightly. The court underscored that the primary objective was to ensure the finality of criminal proceedings and that any deviation from the statutory time frame required exceptional circumstances. The Supreme Court held that the appellant's reasons, although sympathetic, did not meet the high threshold required to warrant an extension. The final orders of the court maintained the denial of the extension, leaving the appellant's appeal time-barred.

Orders