Soo v The Queen - [2015] VSCA 84

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0272

LIN SENG SOO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 May 2015
DATE OF JUDGMENT:	1 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 84
JUDGMENT APPEALED FROM:	DPP v SLS [2014] VCC 109 (Judge Cannon, 30 October 2013 (date of conviction), 21 February 2014 (date of sentence))

ELECTION TO HAVE APPLICATION DETERMINED BY THE COURT OF APPEAL
PURSUANT TO S 313(2) OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Application for extension of time to file notice of appeal against conviction – Delay of 265 days – Explanation for delay not entirely satisfactory – Proposed grounds have no reasonable prospect of success – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	The Applicant appeared in person
For the Respondent	Mr B F Kissane QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

OSBORN JA:

The applicant appears in person to seek an extension of time in which to appeal against conviction and, if that application is granted, seeks leave to appeal against conviction.

Following a trial in the County Court, the applicant was convicted by a jury on 30 October 2013 of a series of related sexual offences. He was sentenced on 21 February 2014 by the trial judge, her Honour Judge Cannon.

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Indecent act with a child under 16 [s47(1) of the Crimes Act 1958]	10 years [s47(1) of the Crimes Act 1958]	14 months	3 months
2.	Common assault [Common Law]	5 years (s320 of the Crimes Act 1958]	1 month	-
3.	Indecent act with a child under 16 [s47(1) of the Crimes Act 1958]	10 years [s47(1) of the Crimes Act 1958]	4 years 6 months	Base
4.	Produce child pornography [s68(1) of the Crimes Act 1958]	10 years [s68(1) of the Crimes Act 1958]	8 months	1 year 6 months
5.	Produce child pornography [s68(1) of the Crimes Act 1958]	10 years [s68(1) of the Crimes Act 1958]	8 months	1 year 6 months
Total Effective Sentence:		5 years
Non-Parole Period:		3 years
*Pre-sentence detention declared pursuant to s 18(1) of the Sentencing Act 1991:*		114 days
Other relevant orders: Sentenced on Charges 4 and 5 as a Serious Sexual Offender pursuant to section 6F of the Sentencing Act 1991. Forensic Sample Order Pursuant to section 464ZF of the Crimes Act 1958.

On 23 July 2014 the applicant obtained leave to appeal against sentence but his sentence appeal was ultimately dismissed on 25 November 2014. He then filed this application for extension of time to appeal against conviction on 11 December 2014, some 265 days out of time. The fundamental reason proffered for the application for extension of time is that Victoria Legal Aid (‘VLA’) refused to fund a conviction appeal. In elaboration of that proposition, the applicant has further…

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 Soo v The Queen

Details

AGLC: Lin Seng Soo v The Queen [2015] VSCA 84
Case: [2015] VSCA 84
Decision Date: 1 May 2015

CaseChat Overview and Summary

The case of Soo v The Queen involved the applicant, Soo, appealing against a decision to refuse an extension of time for filing a notice of appeal against his conviction. The primary focus of the dispute was whether the court should grant an extension for the late filing of the notice of appeal, which had been delayed by 265 days. The matter was heard in the High Court of Australia, the highest judicial tribunal in the country.

The legal issues that the court had to decide were whether the explanation for the delay was satisfactory and whether the proposed grounds of appeal had a reasonable prospect of success. The applicant needed to demonstrate that the delay was excusable and that the grounds of appeal were meritorious. The court assessed the applicant's explanation for the delay and the merits of the proposed grounds of appeal to determine whether the application for an extension of time should be granted.

The court found that the explanation for the delay was not entirely satisfactory, as the applicant had not provided a compelling reason for the significant delay. Additionally, the court considered the proposed grounds of appeal and concluded that they did not have a reasonable prospect of success. The applicant had not demonstrated that the appeal would likely result in a different outcome. Based on these findings, the court refused the application for an extension of time to file the notice of appeal. The court did not make any further orders, as the application was dismissed on the basis of the unsatisfactory explanation for the delay and the lack of reasonable prospects for the appeal.

Orders