Swan v The King - [2024] VSCA 244

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0205

TANYA SWAN	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, KENNEDY and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 October 2024
DATE OF JUDGMENT:	18 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 244
JUDGMENT APPEALED FROM:	[2018] VCC 2208 (Judge Hogan)

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CRIMINAL LAW – Extension of time – Application for extension of time to file application for leave to appeal against conviction – Delay of five years – No adequate explanation for delay – Proposed grounds of appeal not sufficiently arguable – Application for extension of time in which to file leave to appeal against conviction refused.

Madafferi v The Queen [2017] VSCA 302, applied.

CRIMINAL LAW – Appeal – Conviction – Applicant convicted on two charges of obtaining financial advantage by deception – Evidence of previous untruth told by the Applicant on oath as to knowledge of misrepresentations – Evidence adduced as incriminating conduct evidence – Submissions by prosecution in final address suggesting use of evidence to prove tendency –Trial judge gave anti-propensity warning to jury – Whether direction sufficient to preclude impermissible use of evidence by jury – Whether substantial miscarriage of justice – Jury deliberation – Judge answered questions from jury on use of evidence in reaching verdicts – Whether judge pressured jury – Whether direction amounted to impermissible perseverance direction – Proposed grounds of appeal not sufficiently arguable to warrant extension of time.

Black v The Queen (1993) 179 CLR 44, considered – R v De Simone [2008] VSCA 216; Aulsebrook v The Queen [2019] VSCA 239; Issakidis v The Queen (2019) 379 ALR 292; Conway v The Queen (2000) 98 FCR 185; R v Flavel [2001] NSWCCA 227, referred to.

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Counsel
Applicant:		Mr R Nathwani SC with Ms F Fox
Respondent:		Ms D Piekusis KC with Mr G Buchhorn
Solicitors
Applicant:	SLKQ Lawyers
Respondent:	Abbey Hogan, Solicitor for Public Prosecutions

BEACH JA
KENNEDY JA
KAYE JA:

On 21 September 2018, the applicant was convicted, by the jury empanelled on her trial, of two charges of obtaining a financial advantage by deception. Following a plea, the applicant was sentenced, on 13 November 2018, to a total effective sentence of 12 days’ imprisonment, followed by a three year Community Correction Order, with a further sentence of 6 months’ imprisonment, wholly suspended for a period of three years.
On 16 November 2023, the applicant filed a notice of application for leave to appeal against conviction on two grounds. As that application was made almost five years after the expiration of the time prescribed by s 275 of the Criminal Procedure Act 2009, the applicant has also filed an application for extension of time within which to file the notice of application for leave to appeal.
It is convenient, first, to outline the basis for the application for an extension of time. That application is opposed by the respondent, on the basis of the length of…

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 Swan v The King

Details

AGLC: Swan v The King [2024] VSCA 244
Case: [2024] VSCA 244
Decision Date: 18 October 2024

CaseChat Overview and Summary

In the case of Swan v The King, the applicant, Swan, sought an extension of time to file an application for leave to appeal against his conviction on two charges of obtaining financial advantage by deception. The application was made five years after the conviction, and Swan provided no adequate explanation for the delay. The central legal issues were whether the proposed grounds of appeal were sufficiently arguable to warrant an extension of time and whether the trial judge's direction to the jury was sufficient to preclude any impermissible use of evidence by the jury.

The court considered the application under the relevant statutory provisions and case law, particularly Madafferi v The Queen. The court noted that Swan had not provided any satisfactory explanation for the five-year delay in filing the application for leave to appeal. Furthermore, the court found that the proposed grounds of appeal were not sufficiently arguable. The court examined whether the trial judge's direction to the jury was sufficient to prevent any impermissible use of evidence and whether the judge pressured the jury or gave an impermissible perseverance direction. The court concluded that the trial judge's direction was sufficient, and there was no substantial miscarriage of justice.

The court ultimately refused Swan's application for an extension of time to file his application for leave to appeal against his conviction. The court found that Swan's delay in filing the application and the insufficiently arguable grounds of appeal did not warrant an extension of time. The court also found that the trial judge's direction to the jury was sufficient, and there was no substantial miscarriage of justice. The court's decision was based on the evidence presented and the relevant case law.

Orders