Taylor v The Queen - [2021] VSCA 131

SUPREME COURT OF VICTORIA

COURT OF APPEAL

JULIAN TAYLOR	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	13 May 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 131
JUDGMENT APPEALED FROM:	DPP v Taylor (Unreported, County Court of Victoria, 14 August 2018 (Conviction); [2018] VCC 2271 (Sentence)) (Judge Brookes)

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CRIMINAL LAW – Application for leave to bring second appeal – Criminal Procedure Act 2009, ss 326A and 326C – Abuse of process – Registrar refusing to seal and accept documents for filing on the grounds that proposed application is an abuse of process – Review of Registrar’s decision – Supreme Court (Criminal Procedure) Rules 2017, r 1A.04 – Application for review refused.

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APPEARANCES:	Counsel	Solicitors
For the applicant	No appearances
For the respondent

PRIEST JA
BEACH JA:

On 14 August 2018, the applicant — charged under the name Julian Richard Taylor (formerly known as Steven Mark Bahntoff; Steven Robert Barr; Steven Robert Parker; Julian Mark Bahntoff and Steven Robert Bahntoff) — was found guilty in the County Court of four charges of using a false document;[1] one charge of perjury;[2] seven charges of obtaining a financial advantage by deception;[3] and one charge of making, using or supplying identification information.[4]
[1]Contrary to s 83A(4) of the Crimes Act 1958.
[2]Contrary to s 314(1) of the Crimes Act 1958.
[3]Contrary to s 82(1) of the Crimes Act 1958.
[4]Contrary to s 192B(1) of the Crimes Act 1958.

On 20 November 2018, the trial judge sentenced the applicant to a total effective sentence of 2 years and 11 months, with a non-parole period of 2 years and 2 months. An amount of 752 days pre-sentence detention was declared.[5]
[5]Pursuant to s 18(1) of the Sentencing Act 1991.

On 5 July 2019, this Court refused the applicant leave to appeal against his convictions and sentence. The Court’s reasons for refusing the applications for leave[6] set out the relevant background and procedural history of this matter.
[6]Taylor v The Queen (2019) 59 VR 163 (‘First Reasons’).

On 14 April 2021, the applicant attempted to file an application for leave to appeal against conviction pursuant to s 326A of the Criminal Procedure Act 2009 (‘the Act’) — a provision which permits a second or subsequent appeal to this Court.

In order for an applicant to be granted leave for a second or subsequent appeal, the Court must be satisfied that there is ‘fresh and compelling evidence that should, in the interests of justice, be considered on an appeal’.[7] Evidence is ‘fresh’ if it was not adduced at the trial and could not, even with the exercise of reasonable diligence, have been adduced at the trial. Section 326C(3)(b) provides that evidence is ‘compelling’ if:

(i)        it is reliable; and
(ii)       it is substantial; and
(iii)      either —
(A)it is highly probative in the context of the issues in dispute at the trial of the…

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 Taylor v The Queen

Details

AGLC: Taylor v The Queen [2021] VSCA 131
Case: [2021] VSCA 131
Decision Date: 13 May 2021

CaseChat Overview and Summary

Taylor sought leave to bring a second appeal against his conviction and sentence for criminal offences, contending that the Registrar's refusal to seal and accept documents for filing was an abuse of process. The Registrar had refused to accept the documents on the basis that the application for leave to bring a second appeal was an abuse of process. Taylor applied to the Supreme Court for a review of the Registrar's decision under rule 1A.04 of the Supreme Court (Criminal Procedure) Rules 2017.

The legal issues before the court were whether the Registrar's decision to refuse to seal and accept the documents for filing was correct, and whether the application for leave to bring a second appeal was an abuse of process. The court considered the relevant provisions of the Criminal Procedure Act 2009 and the Supreme Court (Criminal Procedure) Rules 2017. The court also considered the principles of abuse of process in the context of appeals.

The court found that the Registrar's decision was correct and that the application for leave to bring a second appeal was an abuse of process. The court held that the Criminal Procedure Act 2009 provided for the circumstances in which a second appeal may be brought and that the application did not satisfy those criteria. The court also found that the application was an abuse of process because it was an attempt to relitigate issues that had already been decided on the first appeal. The court held that the application was frivolous and vexatious and that it would not be in the interests of justice to allow it to proceed. The application for review was therefore dismissed.

The court refused Taylor's application for leave to bring a second appeal and dismissed his application for a review of the Registrar's decision.

Orders