Wijeratne v The Queen

[2020] VSCA 311

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0246

NALAKA WIJERATNE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	3 December 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 311
JUDGMENT APPEALED FROM:	[2019] VCC 1561 (Judge Trapnell)

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CRIMINAL LAW – Appeal – Sentence – Applicant died in custody before application for leave to appeal heard – Application abated upon death – No death certificate – Other evidence of death – Application for leave to appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Not applicable	Emma Turnbull Lawyers
For the Respondent	Not applicable	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA:

1. On 1 April 2019, the applicant was found guilty by a jury of single charges of kidnapping, false imprisonment and making a threat to kill.  He also pleaded guilty to a single charge of obtaining financial advantage by deception.  On 30 September 2019, a judge of the County Court sentenced him to a total effective sentence of 8 years and 3 months’ imprisonment, with a non-parole period of 6 years.[1] 

   [1]DPP v Wijeratne [2019] VCC 1561.

1. On 19 December 2019, the applicant filed an application for leave to appeal against his sentence on the following proposed grounds:

Ground 1The sentencing judge erred by failing to explain what weight, if any, he gave to the 466 days the applicant spent in immigration detention.

Ground 2The sentence imposed on the charge of kidnapping (Charge 1) and the orders [for] cumulation were manifestly excessive and resulted in a total effective sentence and non-parole period that was manifestly excessive.

Particulars: The learned sentencing judge:

(i)Failed to give any or sufficient weight to the period of 466 days that the applicant spent in immigration detention;

(ii)Failed to take into account sufficiently or at all the delay between the offending and the time of the sentence;

(iii)Failed to have proper regard to the principle of parity between the sentences of the applicant and the co-accused, Brajic-Bejdic.[2]

[2]The applicant was granted an extension of time within which to file the application.

1. The application was signed by the applicant’s solicitors, Emma Turnbull Lawyers.  The application has not yet been heard by the Court.

1. On 13 November 2020, Emma Turnbull Lawyers advised the Court that the applicant died on 6 November 2020 while in custody.  He was then serving his sentence at the Karreenga Annexe, Marngoneet Correctional Centre.

1. Also on 13 November 2020, Emma Turnbull Lawyers submitted for filing a notice of abandonment of the application for leave to appeal ‘on behalf of Nalaka Wijeratne (deceased)’.

1. It appears that a death certificate has not yet been issued because the applicant’s death is being investigated by the coroner.  As evidence of the applicant’s death, the Court has received:

(a)an email dated 17 November 2020 from Karreenga Annexe, Marngoneet Correctional Centre together with a ‘screenshot’ of an extract from the applicant’s prison records which described his status as ‘dead’; and

(b)an email dated 30 November 2020 from Detective Senior Constable Damian McKeegan to the Office of Public Prosecutions which relevantly stated:

I am currently investigating the death of Nalaka WIJERATNE (14/01/1975), who was a prisoner at Karreenga Correctional Centre, Lara.  The death of WIJERATNE occurred on Friday, 6^th November, 2020, to which I attended and identified WIJERATNE as the deceased.  Preliminary enquiries from the Coroner’s Court of Victoria indicate that WIJERATNE’s death was a result of coronary artery disease.  Coroners case no 6052/2020 refers.

1. On the basis of the above emails and the communications from Emma Turnbull Lawyers, I am satisfied that the applicant died in custody on 6 November 2020.

1. The Criminal Procedure Act 2009 and the Supreme Court (Criminal Procedure) Rules 2017 do not make any provision for the disposition of an application for leave to appeal against sentence where the applicant dies prior to the hearing and determination of the application. 

1. However, the authorities establish that the proper disposition of an application for leave to appeal against sentence — or an appeal if leave has already been granted or is not required — is to dismiss the application or appeal.[3]  That is because such an application/appeal is personal to the applicant/appellant which abates upon his or her death and cannot be pursued by his or her executor or personal representative.[4]  This principle applies irrespective of whether the application/appeal was not yet heard or heard but not determined at the time of death.[5]  The principle also applies to an application for leave to appeal against conviction.[6] 

   [3]In the case of Carl Anthony Williams, a judge of this Court granted leave to appeal against sentence but the appellant passed away in custody prior to the hearing of the appeal.  The appeal was struck out rather than being dismissed.  In R v Perrier [2008] VSCA 97 (‘Perrier’), Murray James Perrier died after the hearing, but prior to the determination, of his application for leave to appeal against his sentence.  This Court stated that ‘the appropriate course of action is to refuse Perrier’s application for leave to appeal against sentence’: Perrier [2008] VSCA 97, [3].

   [4]R v Jefferies [1969] 1 QB 120, 124 (‘Jefferies’); Sen v The Queen (1991) 30 FCR 173, 175–6 (‘Sen’); Quartermaine v The Queen [2002] WASCA 345, [4]–[5] (‘Quartermaine’); R v Rimon (2003) 6 VR 553, 553–4 [4]–[6]; [2003] VSCA 136 (‘Rimon’).

   [5]Perrier [2008] VSCA 97, [3]; Singh v The Queen (2020) 381 ALR 189, 189 [1]; [2020] HCA 25 (‘Singh’).

   [6]Jefferies [1969] 1 QB 120, 124; Sen (1991) 30 FCR 173, 175–6; Quartermaine [2002] WASCA 345, [4]–[5]; Rimon (2003) 6 VR 553, 553–4 [4]–[6]; [2003] VSCA 136.

1. In Singh v The Queen,[7] the appellant was granted special leave to appeal to the High Court against his conviction.  He sought an order quashing his conviction and directing a retrial.  The appellant died after the appeal was heard but prior to its determination.  The Court decided that, due to the appellant’s death, it was no longer possible to make the order sought by him and, as no other order was appropriate, special leave was revoked.[8] 

   [7](2020) 381 ALR 189; [2020] HCA 25.

   [8]Singh (2020) 381 ALR 189, 189 [1]; [2020] HCA 25.

1. As the applicant in the present case has died prior to the hearing of his application for leave to appeal against his sentence, the application will be dismissed.

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