Samios v DPP

[2022] VSCA 108

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0095

ZETH SAMIOS	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	First Respondent
AND
THE COUNTY COURT OF VICTORIA	Second Respondent

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JUDGES:	PRIEST, T FORREST and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2022, 30 May 2022
DATE OF JUDGMENT:	8 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 108
JUDGMENT APPEALED FROM:	Samios v DPP [2020] VSC 165 (Taylor J)

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JUDICIAL REVIEW – Appeal – Applicant pleaded guilty to trafficking an automatic forfeiture quantity of heroin – Heroin located in applicant’s home – Trafficking in not less than an automatic forfeiture quantity of heroin is a Schedule 2 offence under Confiscation Act 1997 – Applicant not advised by his legal practitioner that pleading guilty might result in forfeiture of home – Applicant refused leave to appeal to County Court against conviction out of time – Whether error in refusing judicial review of decision of County Court – Whether County Court judge should have found exceptional circumstances – Whether material prejudice to prosecution – Whether decision refusing leave to appeal out of time unreasonable – Leave to appeal refused – Criminal Procedure Act 2009 s 263(2) – Confiscation Act 1997 sch 2 – Drugs, Poisons and Controlled Substances Act 1981 s 5, sch 11 – Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 – Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

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Counsel
Applicant:		Mr G Silbert QC with Mr J Stavris
First Respondent:		Ms E Ruddle QC with Mr L McAuliffe
Solicitors
Applicant:	Indovino’s Lawyers
First Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA
MACAULAY JA:

Introduction

1. In circumstances that we will later describe,[1] on 20 July 2018 the applicant pleaded guilty in the Magistrates’ Court at Geelong to a number of offences, including trafficking a drug of dependence, heroin.  As a result, a magistrate convicted the applicant and sentenced him to an aggregate sentence of six months’ imprisonment, together with a Community Correction Order (‘CCO’) of 18 months’ duration.

   [1]See [7] et seq below.

2. Pursuant to s 263(2) of the Criminal Procedure Act 2009 (‘CPA’), the applicant subsequently sought the leave of the County Court to appeal out of time against the conviction and sentence imposed by the magistrate. Judge Hannan refused that application on 29 August 2019.

3. On 25 October 2019, the applicant filed an originating motion seeking judicial review of Judge Hannan’s decision.  Following a hearing on 20 October 2020, Taylor J made orders on 29 July 2021 dismissing the application for judicial review and awarding costs to the Director of Public Prosecutions (‘the Director’ or ‘the DPP’).[2]

   [2]Samios v DPP [2020] VSC 165 (‘Reasons’). Taylor J heard the application for judicial review on 20 October 2020, and gave reasons for its refusal on 8 April 2021. Authenticated orders were made on 29 July 2021. See [26] and fn 20 below.

4. By a notice dated 26 August 2021, the…