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:

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.

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.

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

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.

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)’.

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

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 Wijeratne v The Queen

Details

AGLC: Wijeratne v The Queen [2020] VSCA 311
Case: [2020] VSCA 311
Decision Date: 3 December 2020

CaseChat Overview and Summary

Wijeratne v The Queen involved the appellant, who had been convicted of a serious crime, appealing against his sentence. The case was heard in the High Court of Australia. The appellant had passed away in custody before the application for leave to appeal was heard. Consequently, the application was abated upon the appellant's death. However, the absence of a death certificate presented a complication, as the court needed to verify the appellant's death before proceeding with the appeal.

The primary legal issue before the court was whether the application for leave to appeal could be entertained in light of the appellant's death and the lack of a death certificate. The court had to determine whether other available evidence could substantiate the appellant's death sufficiently to proceed with the abatement of the application. The court also considered whether the absence of a death certificate could be excused under the circumstances and whether the application could be dismissed due to the appellant's death.

The court ruled that the application for leave to appeal was indeed abated by the appellant's death. Despite the absence of a death certificate, the court accepted other evidence that confirmed the appellant's death. This evidence was deemed sufficient to establish the fact of the appellant's death. Consequently, the application for leave to appeal was dismissed as the appellant's death rendered the appeal moot. The court emphasised the procedural requirement of a death certificate but found that in this exceptional case, the other evidence provided was adequate to satisfy the court of the appellant's death.

Orders