Wimbridge v The State of Western Australia
[2009] WASCA 196
•6 NOVEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WIMBRIDGE -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 196
CORAM: WHEELER JA
BUSS JA
MILLER JA
HEARD: 14 SEPTEMBER 2009
DELIVERED : 6 NOVEMBER 2009
FILE NO/S: CACR 20 of 2009
BETWEEN: JASON DAVID WIMBRIDGE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :HASLUCK J
File No :INS 38 of 2006
Catchwords:
Delay - Lengthy delay - Extension of time - Principles governing an application to extend time where there has been a lengthy delay
Identification evidence - The displacement effect - Application for extension of time within which to appeal against conviction
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32
Criminal Appeals Act 2004 (WA), s 28(3)
Result:
Application for extension of time within which to appeal refused
Category: A
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr J Mactaggart
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AD v The State of Western Australia [No 2] [2007] WASCA 207
Alexander v The Queen (1981) 145 CLR 395
Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Cookson v The Queen (1989) 45 A Crim R 121
Evans v Pelka [2005] WASC 240
Lancaster v The Queen [1989] WAR 83
Osgood v Wham [2007] WASCA 178
Peck v The State of Western Australia [2005] WASCA 20
R v Brown [1985] 2 Qd R 126
R v Darby (Unreported, VSCA, 2 May 1975)
R v Mendoza [2007] VSCA 120; (2007) 173 A Crim R 157
R v O'Keefe [1979] VR 1
R v Parenzee [2008] SASC 245; (2008) 101 SASR 469
R v Perry [1970] 2 NSWR 501
R v Trew [1979] Qd R 29
Robertson v The State of Western Australia [2009] WASCA 83
Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159
Zocchi v The Queen [2000] FCA 1163; (2000) 116 A Crim R 245
WHEELER JA:
The applications
These are an application for an extension of time within which to file a notice of appeal, and (if that is granted), an application for leave to appeal against conviction. By orders of Miller JA dated 20 March 2009 and 21 April 2009, these applications are to be heard together with the appeal.
The offences
On 10 November 2006, following a five‑day trial, the appellant was found guilty of three offences - aggravated armed robbery, doing grievous bodily harm and stealing a motor vehicle. The appellant was found not guilty of a fourth offence, wilful damage by fire (the appeal notice incorrectly lists this as a conviction). On 15 December 2006, the appellant pleaded guilty to two further offences, being aggravated armed robbery and stealing a motor vehicle, which offences are not in issue in this appeal. On 11 January 2007, the appellant was sentenced to a total of 13 years' imprisonment, with no eligibility for parole.
The facts of the offences the subject of these applications, as found by the trial judge (Hasluck J), were as follows. On 5 September 2005, the complainant, Mr Guerinoni, was at his home in Belmont. He heard a noise outside, and, going to the door, observed two men doing something to his Commodore Ute, which was parked in the driveway. He asked the men what they were doing. He then observed two more men approaching from the other side of his property. He was able to see the men clearly, as the front door light and security light were on. He reached for a bat and samurai sword he usually kept by the door. However, he was unable to locate the sword and unable to reach the bat.
A "big dark guy" (the first offender) who Mr Guerinoni did not recognise then pushed in the door, and pushed Mr Guerinoni to the floor. The first offender then discharged a firearm next to Mr Guerinoni's head. Mr Guerinoni attempted to strike the first offender with his fists. The first offender then struck Mr Guerinoni in the head with the butt of the firearm, causing him to "see stars". While this was occurring, a second man, described as "a white guy, goatee, plait, long hair, Italian looking" (ts 76), found by Hasluck J to be Adriano Tuccio, was "poking" at Mr Guerinoni with Mr Guerinoni's samurai sword. However, the sword did not make contact with Mr Guerinoni.
The next thing Mr Guerinoni recalled was being in the bathroom with the first offender and another man, described as "blond shortish hair, a bit fatter in the face" (ts 77) (the third offender, found by Hasluck J to be the appellant). The first offender held Mr Guerinoni down while the appellant, using Mr Guerinoni's own tools (a pipe cutter and tin snips) and a fishing knife, attempted to cut off Mr Guerinoni's fingers. Mr Guerinoni tried to swing his hand. The appellant stabbed the knife up to the hilt in Mr Guerinoni's left thigh and "zigzagged" it down to above the knee. The first offender then used a power cord and a pair of jeans to create a tourniquet around Mr Guerinoni's leg, while the other two offenders could be heard "rummaging around in the bedroom…smashing things and ripping things apart" (ts 370). The first offender and the appellant then left Mr Guerinoni alone in the bathroom. Mr Guerinoni heard someone say "let's go", followed by the sound of the front door slamming shut.
Mr Guerinoni attempted to stand, but his ankle had gone "floppy". Using a broomstick as a crutch or walking stick, Mr Guerinoni went outside and called for help from his neighbours, who telephoned for an ambulance and wrapped Mr Guerinoni's injured leg in gladwrap. Mr Guerinoni was taken to Royal Perth Hospital and found to have suffered a 10 cm long, 5 cm deep laceration to his thigh and damage to his sciatic nerve, lacerations to his fingers with tendons severed, facial contusions, a full thickness laceration of the upper lip and small grazes. As a result of the injury to his thigh, Mr Guerinoni has lost feeling in his foot and walks with a limp.
Mr Guerinoni's car was taken by the offenders, and recovered some time later "burnt out and gutted". Further, the contents of Mr Guerinoni's safe, $5,000 or $6,000 in cash and some jewellery, had been taken, as had other items including stereo equipment and remote controlled helicopters.
Delay - affidavit
The appellant filed an appeal notice on 17 March 2009, approximately two years out of time. An explanation for the delay is to be found in an affidavit of the appellant sworn 9 April 2009. He deposes that, at the conclusion of his trial in November 2006, his then counsel informed him that in counsel's opinion there were no "points of appeal" against his conviction. He deposes that from the time of his arrest, throughout his trial and to the time of sentencing, he received a large amount of media attention. He deposes that "[d]ue to this and the advice I received from [counsel], I decided that I would not pursue an appeal until the media attention died down". This paragraph is no explanation at all for a delay in appealing. The reference to counsel's opinion is consistent with a decision not to appeal, rather than with a decision to delay appealing. What effect the appellant considered that media attention conceivably might have upon any appeal is simply unexplained.
There is, further, no suggestion of how long the appellant thought it might take for the media attention to "die down". There is no evidence that any media "attention" continued after the date of sentence.
The appellant then deposes "[a]fter being imprisoned I lost contact with my father and believed there was no other way to receive financial assistance or legal advice in commencing an appeal". Again, this paragraph gives rise to more questions than it answers. There is no hint of a date upon which the appellant may have last seen his father, so that it is not clear whether that loss of contact occurred during the period when the media attention was still considered by the appellant not to have "died down". Although the appellant deposes to a belief that he had no way, other than through his father, of receiving financial assistance or legal advice, it is to be noted that he does not depose to taking any step, or making any inquiry, directed to ascertaining whether or not that belief was correct.
Further, it appears from the affidavit of Peter Ben Cassidy sworn 9 April 2009 that the appellant was legally aided at his trial. He was, presumably, at all times aware of the existence of the Legal Aid Commission, and its ability to fund persons involved in criminal proceedings, and why he did not attempt to approach the Legal Aid Commission remains a mystery.
The appellant deposes that "[l]ate last year" (again, no date, or month, or season, is specified), he was speaking to a fellow inmate who offered to read the trial transcript and, having done so, said that he thought there were some possible appeal points. That inmate then informed the appellant that there was a 21‑day deadline for starting an appeal. The appellant's father then at some point started looking for a lawyer and on 16 January 2009 contacted the chambers of Mr Watters.
It is apparent from the sentencing materials that the appellant is literate and reasonably articulate. There is no suggestion of any intellectual impairment that might have affected his ability to appeal.
Delay - oral evidence
The matters set out above were raised with counsel appearing for the appellant at the hearing of the application for extension of time and for leave to appeal. The appellant was present at that hearing by video link. Acknowledging the deficiencies in the appellant's affidavits, his counsel made an oral application that the appellant give oral evidence in relation to the delay. That application was opposed. By majority, the court granted the application. The primary reason why I joined in the order granting the application for leave to call the appellant to give oral evidence, was that it appears to me that a practice has grown up by which counsel appearing for appellants seeking an extension of time give little attention to the need for a full, frank and clear explanation for any delay. While the court has not endorsed that practice, there has on relatively few occasions been any critical comment by the court, and those critical comments have usually been made during the course of the hearing, and not necessarily repeated in reasons for decision.
The practice of giving only perfunctory attention, both in evidence and in submissions, to the need to explain any delay, is one which is wrong as a matter of principle, for reasons which I shortly explore. In the present case, it seems to me that the omissions in the appellant's affidavits are glaring and should have been addressed prior to the hearing. Nevertheless, in the light of what seems to me to have become a common practice, it seemed inappropriate to penalise this appellant for the inadequacy of the materials placed before the court, by refusing him an opportunity to supplement them by oral evidence. It is important to note, however, that it is not likely that the court will readily grant leave, in the future, to supplement defective affidavits concerning delay by oral evidence.
During the course of his oral evidence, the appellant said that the media attention to which he referred in his affidavit was at most a "contributing factor" to any decision not to appeal. The reference to media attention was simply something that "came up ... in conversation" when he was discussing with his present solicitors what should be contained in his affidavit. It was clear from further evidence that he gave about that issue that the media attention was not something which really formed part of his thought processes at the time he made the decision not to appeal.
A fair summary of the appellant's oral evidence was that the lawyer representing him at the time of his trial told him that he had no grounds of appeal, and he accepted that advice. It was not until some time last year, when he was speaking to another prisoner, and that other prisoner suggested that there might be grounds for an appeal, that the appellant then started looking at appealing.
In those circumstances, it seems to me it is desirable, before turning to the merit, if any, of the proposed ground of appeal, to consider the circumstances in which it will be appropriate to exercise discretion in favour of an applicant to extend time.
Delay - principles
The way in which the appropriate principles are most usually expressed is as follows:
It is well settled that where there has been a lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time for leave to appeal, unless it can be shown that there will be a miscarriage of justice if an extension is not granted. See Lancaster v The Queen [1989] WAR 83, 85 (Malcolm CJ); AD v The State of Western Australia [No 2] [2007] WASCA 207 [15] (Buss JA, Pullin JA & Miller AJA agreeing).
Robertson v The State of Western Australia [2009] WASCA 83, Buss JA at [9].
I accept that the above statement of principle is correct, and in the majority of cases it is not necessary to explore issues of principle further. However, the test enunciated above may in some cases give rise to two questions, they being what will constitute "exceptional circumstances", and what does it mean to say that it has been shown that there will be a "miscarriage of justice" if an extension is not granted. As to the first, a compelling explanation for the delay will, no doubt, generally constitute "exceptional circumstances"; one obvious example would be the case of an appellant whose ground of appeal only arose from the discovery of fresh evidence well after conviction. The category of "exceptional circumstances" is of course not closed, and it is not necessary to consider its content further, as there are plainly no circumstances in this case that could be regarded as "exceptional".
Turning to the question of what it means for it to be established that there will be a miscarriage of justice if an extension is not granted, I analysed that concept, based on the state of then existing authority in this State and in South Australia, in Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 at [97] ‑ [114]. I do not repeat that analysis; my conclusions were, relevantly, expressed in [113] and [114] in the following way:
[I]f all that were required to demonstrate a miscarriage of justice were that there should be a ground which would have succeeded in a regularly instituted appeal, one wonders what purpose the statutory limit and the existence of a discretion would serve. In practical terms, any person with a meritorious ground of appeal would succeed, whenever the appeal was instituted. A person without such a ground might formally be refused leave, rather than having their appeal dismissed, if attempting to appeal out of time, but there would be no practical consequence ever flowing from a failure to appeal within time.
It is my view that both principle and authority in this State suggest that the Court may require more to be demonstrated than that an appeal ground will be successful, before time is extended. It is also my view that this is a case in which more should be demonstrated.
I did not then attempt to define what "more" should be shown in order to justify an extension of time. I do not think it is possible to do so exhaustively. Factors such as the offence in respect of which the appellant wishes to appeal (for example, whether it is has resulted in a very lengthy term of imprisonment, or has other serious consequences) and the prejudice (or lack thereof) to the State occasioned by the delay may be matters to be considered, as well as the length of and reasons for delay, and the strength of the appellant's case.
Although s 695(1) of the Criminal Code, which applied in Bardsley, has now been relevantly replaced by s 28(3) of the Criminal Appeals Act 2004 (WA), it does not appear to me that there is any difference of significance in the wording. Section 28(3) provides:
An appeal under this Part against a decision or judgment cannot be commenced later than 21 days after the date of the decision or judgment unless the Court of Appeal orders otherwise.
One difference in the procedural context, and one which is not favourable to those seeking an extension of time, is that the Supreme Court (Court of Appeal) Rules2005 (WA) now provide, by r 32, that a significant period is available to an appellant, after the filing of the notice of appeal, within which to file the appellant's case. That appellant's case may contain grounds which depart from the grounds contained within the initial notice of appeal. Under the present Rules, therefore, very little is required in order to "commence" an appeal, with the careful identification of the matters upon which the appellant really wishes to rely made after commencement. The discretion to extend time therefore falls to be exercised in a context in which the institution of an appeal is a straightforward and simple procedure.
Although I was in dissent in the result in Bardsley, it does not appear to me that either of the majority judges expressed a view concerning the principles governing an extension of time which was inconsistent with the conclusions which I reached. Templeman J noted the public interest in insisting on strict compliance with time limits (at [82]). However, having recounted the explanation given by the applicant in that case, his Honour accepted that she had explained the delay in making the application to the extent that the delay was within her knowledge, and his Honour was prepared to assume that other unexplained portions of the delay were beyond the applicant's control, for reasons which he gave (at [83]). Wallwork AJ did not expressly consider the question of whether an extension of time should be granted, so that it would appear his Honour's reasons should be understood as agreeing, in that respect, with those of Templeman J. Bardsley has been referred to, in relation to this question, only in Evans v Pelka [2005] WASC 240 at [16], Osgood v Wham [2007] WASCA 178 at [65] and Peck v The State of Western Australia [2005] WASCA 20 at [9]. Those later cases do not take the discussion of principle any further. I see no reason, therefore, to depart from the views I expressed in Bardsley.
Although the appellant is serving a significant term of imprisonment, I would not grant an extension of time in this case unless it could be demonstrated that the misdirection which is alleged in the proposed ground of appeal was so significant that it was highly likely to have affected the verdict of the jury, so that there would, at any retrial, be a strong likelihood of acquittal by a properly directed jury. Three considerations have led me to that view: the delay is very lengthy; the appellant's present desire to appeal stems from no more than fresh advice (initially, from an unqualified fellow prisoner); and the State case at trial depended heavily upon the accuracy of the complainant's identification evidence, so that the State would in all likelihood be prejudiced by the inevitable loss of the immediacy of the complainant's recollection. In the light of those considerations, I would not regard it as sufficient to demonstrate that the ground of appeal should succeed, in order to demonstrate that a refusal of leave would lead to a "miscarriage of justice".
Proposed appeal against conviction
There is one proposed ground of appeal against conviction, which reads:
The trial Judge erred in both law and in fact when he failed to warn the jury about the 'displacement effect' and in all the circumstances of the case his direction as to the identification evidence was inadequate and there was a miscarriage of justice.
The identification evidence
The evidence concerning identification was as follows. At around 9.10 am on 14 September 2005, police attended the appellant's home in Forrestfield. A blue Holden Commodore was parked in the driveway and a female person was seated in the front passenger seat. Next to this vehicle was parked a green Ford Falcon, registered to the appellant. In the boot of the appellant's car were found a samurai style sword and two smaller swords. The samurai style sword was later identified by the complainant as being the sword taken during the commission of the offences the subject of this appeal.
At around 9.15 am, also on 14 September 2005, Mr Guerinoni attended the Forensic Imaging Unit at Police Headquarters and participated in the compilation of a computer composite image of the third offender. On 16 September 2005, Mr Guerinoni participated in a digiboard identification procedure in relation to two of the other offenders. The "digiboard" procedure was discussed in Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159 at [31] ‑ [32]. On 18 September 2005, Mr Guerinoni participated in a digiboard identification procedure in relation to the third offender. He identified the appellant's photograph as being the third offender.
The appellant submits that Mr Guerinoni's memory of the third offender's appearance may have been displaced by his memory of the computer composite image compiled on 14 September 2005. The trial judge declined to direct the jury in relation to the possible risk that Mr Guerinoni's memory of his attacker had been displaced by his memory of the composite image, despite trial counsel for the appellant raising this issue in closing and requesting a redirection on the issue. As identification of the appellant was the critical issue at trial, the appellant submits that there has been a substantial miscarriage of justice.
What is the "displacement effect"?
The displacement effect was described in Alexander v The Queen (1981) 145 CLR 395 (at 409) in the following way:
Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory.
Alexander's case was concerned with the possibility that a witness who had enjoyed only a relatively brief sighting of the offender might find his or her ability subsequently to identify the offender tainted by having been shown, between the date of sighting and the date of identification, a photograph of a person who, it was suggested, may have been the offender. Because displacement of this kind is an unconscious, or largely unconscious, process, cross‑examination would not be a particularly useful tool for ascertaining whether such displacement had taken place.
A similar type of "displacement effect" was considered in the case of R v Mendoza [2007] VSCA 120; (2007) 173 A Crim R 157, upon which the appellant relied. That was a case in which the applicant had entered a hairdressing salon on a couple of occasions prior to a robbery, apparently for the purpose of trying to sell face creams and other items. There was then a robbery at the hairdressing salon at which two female hairdressers were present. Both female hairdressers were subsequently shown photograph books which included photographs of the applicant. One of the women was unable to identify the perpetrator, while the other selected the applicant's photograph as being "very similar" to the perpetrator. Subsequent to the witnesses being shown the photograph books, the applicant again visited the salon. Both women were present. After some discussion between them, one of them telephoned the police to say that the person who she thought had robbed the salon had just visited it again. There is no detailed discussion in the case of the mechanism by which the identification evidence of the witnesses might have become tainted. However, it is clear that there were at least two possible mechanisms. One was the possible "displacement effect", similar to that which caused concern in Alexander's case, which might arise where a witness having first observed the offender, was then shown a photograph of the accused (or a book of photographs including that of the accused), and then subsequently purported to identify the offender. It would seem in Mendoza that there was seen to be a risk that the witnesses remembered the applicant's face, not because he was the offender, but because each of them had seen his photograph only a few days beforehand. There was further in that case the risk of contamination of the identification evidence, in that it appeared that the two women had discussed the question of whether the person who had entered the salon was the offender, before the telephone call was made to police. Plainly, both Alexander and Mendoza are very different factually from the present case.
In this court, in Winmar there had been a warning at trial about the "displacement effect", so that it was not necessary for the court to consider in any detail what might be entailed in that phenomenon. In that case, the complainants had been the victims of an aggravated burglary, and one of the complainants had, after a short pause, left the house for the express purpose of looking for the offender. It was the appellant's evidence in that case that he had been visiting a house near the complainants' property on the day in question, had seen the male complainant out the front of his house, and had waved at him. The male complainant had picked the appellant out from a digiboard some 18 days after the offence. On one view, it might be considered that there was a risk of a "displacement effect" where the male complainant identified the appellant, not because the appellant was the offender, but because the appellant was a person whom the male complainant had seen previously in circumstances associated in the male complainant's mind with the offence. More straightforwardly, it seems to me that it was really a case in which, if there was a possibility that the appellant's evidence was truthful, the jury would need to consider whether there had been a simple case of mistaken identity; that is, that, seeing the appellant outside his house shortly after the offence, the male complainant had mistakenly assumed that he was the offender. In any event, as I have noted, the court did not consider the displacement effect in any detail in Winmar's case. It also was a case factually very different from the present.
So far as the present case is concerned, the appellant's counsel was unable as a matter of logic to explain why a displacement effect would occur where the same witness had prepared an identikit image and had then, a short time later, selected the appellant from a photoboard. Such a sequence of events would not, on its face, give rise to the possibility of "displacement" of an image held in the witness' mind by another image. It did not assist the appellant's case in this respect, that there was at trial no cross‑examination of the complainant which attempted to explore the question of whether it was possible that he was identifying the appellant by reference to the image contained in the identikit, as opposed to an image of the offender retained in his mind (to the extent that the two might have been different).
No expert evidence, or evidence from works of authority, was put before the court in the present case, as was done in Winmar. There was therefore no scientific material suggesting a mechanism by which the displacement effect occurs. There was no evidence directed to the question of whether a displacement effect, or some other adverse effect upon the reliability of a witness' identification, might occur in circumstances such as the present.
In the absence of any basis in evidence or in logic for the assertion that a "displacement effect" must, or is likely to, arise where an identification witness has participated in the production of an identikit image, it is appropriate in the present case to recall those passages in Winmar in which the court warned of the undesirability of courts purporting to assume an expertise which they do not possess (at [23]). It would not, in my view, have been appropriate for his Honour to have warned the jury about the danger of a "displacement effect" arising in the present case.
Conclusion
For the reasons briefly outlined above, it is my view that his Honour did not err in failing to give a direction about any possible "displacement effect" in the present case. It is therefore not necessary to consider the question which I consider would otherwise have arisen, which is whether the failure to give such a direction was so significant that it was highly likely to have affected the verdict of the jury. I would refuse the application for an extension of time within which to appeal.
BUSS JA: The appellant has made an application for an extension of time within which to appeal against his conviction on 10 November 2006, after a trial before Hasluck J and a jury, on three counts in an indictment, namely, aggravated armed robbery, doing grievous bodily harm, and stealing a motor vehicle.
The appellant did not file an appeal notice until 17 March 2009, more than two years out of time.
The material facts and the proposed ground of appeal are set out in the reasons of Wheeler JA. I agree with her Honour that the application for an extension of time should be dismissed. My reasons are as follows.
The applicable principles governing an application for an extension of time for leave to appeal against conviction
It is well settled that where there has been a lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time for leave to appeal against conviction, unless it can be shown that there will be a miscarriage of justice if an extension is not granted. See R v Perry [1970] 2 NSWR 501, 503 (Manning JA, Brereton & Begg JJ); R v Trew [1979] Qd R 29, 30 (Wanstall CJ, Stable SPJ & Andrews J agreeing); R v O'Keefe [1979] VR 1, 5 ‑ 6 (McInerney, Menhennitt & McGarvie JJ); R v Brown [1985] 2 Qd R 126, 132 (Williams J), 135 (Ryan J); Cooksonv The Queen (1989) 45 A Crim R 121, 124 (Malcolm CJ, Brinsden J agreeing); Lancaster v The Queen [1989] WAR 83, 85 (Malcolm CJ); AD v The State of Western Australia [No 2] [2007] WASCA 207 [15] (Buss JA, Pullin JA & Miller AJA agreeing); Robertson v The State of Western Australia [2009] WASCA 83 [9] (Buss JA, Owen & Miller JJA agreeing).
The court's power to extend time to appeal against conviction is broad and flexible. Its purpose is to enable the court to achieve justice in the particular case. See Zocchi v The Queen [2000] FCA 1163; (2000) 116 A Crim R 245 [4] (Burchett, Higgins & Weinberg JJ).
The achievement of justice in the particular case is not, of course, confined to justice from the applicant's perspective. As Doyle CJ noted in R v Parenzee [2008] SASC 245; (2008) 101 SASR 469, there is a definite public interest in compliance with the time limit for appealing against a conviction:
There is a strong public interest in certainty and finality in the exercise of the criminal jurisdiction. The prospect of a conviction being questioned, and of a retrial, long after the conviction recorded is unsettling. It is unsettling for persons affected by the circumstances giving rise to the charge, and for those who are witnesses called to give evidence. The prospect of a retrial of a charge, years after the event, and years after a trial, is not a good one. There is a risk that if a charge has to be retried, the passage of time will have had an effect on the quality of the evidence that cannot be anticipated until the retrial is under way. There is always a risk that memories will have faded, or that some evidence will be lost [55].
I respectfully agree with these observations.
In general, there are five principal factors to be considered in determining whether to grant an application for an extension of time to appeal against conviction. First, the nature and extent of the delay. Secondly, the reasons for the delay. Thirdly, the proposed grounds of appeal and their merit. Fourthly, the prejudice to the applicant if an extension of time is not granted. Fifthly, the prejudice (if any) to the State or the Crown if an extension of time is granted. These factors are not intended to be an exhaustive statement of the relevant considerations. No doubt, in a particular case, there may be additional factors.
Although the court's discretion to extend time is broad and flexible, the applicant must establish a proper basis for its exercise. The court will, in general, require cogent and substantial reasons before granting an extension. Also, in general, as Gowans J stated, in delivering the judgment of the Full Court of the Supreme Court of Victoria in R v Darby (Unreported, VSCA, 2 May 1975):
[T]he longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be (2).
This and other propositions stated by Gowans J were approved by the Full Court in O'Keefe, 5.
As I have mentioned, where there has been a lengthy delay, the court will require 'exceptional circumstances' to be shown before granting an extension of time, unless it can be shown that there will be a 'miscarriage of justice' if an extension is not granted. I will give some consideration to these notions of 'exceptional circumstances' and 'miscarriage of justice'.
It is not possible to define, with precision or exhaustively, the ambit or content of 'exceptional circumstances'. Everything depends on the facts and circumstances of the particular case. An evaluative judgment is involved. The facts and circumstances in question must be analysed and weighed in the context of the five principal factors (and any other relevant considerations) I have mentioned. See [45] above. In general, the court has to be satisfied that there is some special or unusual feature of the particular case that warrants the granting of an extension of time, notwithstanding the lengthy delay.
Similarly, it is not possible to define, with precision or exhaustively, the facts and circumstances in which a 'miscarriage of justice' will occur if an extension of time is not granted. In general, there will not be a 'miscarriage of justice' unless it is plain that the conviction is attended by such doubt as to make it probable that, if the applicant is granted an extension of time and leave to appeal, the appeal will be allowed, the
conviction quashed and a verdict of acquittal (without a re‑trial) entered. There may, however, in a particular case, also be a 'miscarriage of justice' where the conviction is attended by such doubt as to make it probable that, if the applicant is granted an extension of time and leave to appeal, the appeal will be allowed, the conviction quashed and a re‑trial ordered, but much may depend on the seriousness of the offence, the severity of the sentence, and the nature and extent of any prejudice to the State or the Crown if an extension is granted. It may be said with certainty that the applicant will not establish a 'miscarriage of justice' merely by satisfying the court that his or her proposed grounds of appeal are reasonably arguable.
The present case: the oral evidence as to the delay
At the hearing of the appeal, I joined with Wheeler JA in granting the appellant's application to give oral evidence as to the delay. I granted that application for the reasons now given by Wheeler JA.
The present case: the proposed ground of appeal
I agree with Wheeler JA, for the reasons she gives, that the proposed ground of appeal is without merit.
The present case: no 'exceptional circumstances' and no 'miscarriage of justice'
I agree with Wheeler JA, for the reasons she gives, that the appellant has not shown 'exceptional circumstances' justifying the grant of an extension of time.
Further, the absence of merit in the proposed ground of appeal means that the appellant has failed to establish that there will be a 'miscarriage of justice' if an extension is not granted.
Conclusion
I would dismiss the appellant's application for an extension of time to appeal because the appellant has not shown 'exceptional circumstances', and the proposed ground of appeal has no reasonable prospect of success.
MILLER JA: I have had the opportunity of reading in draft the reasons of Wheeler JA. I agree with those reasons, and particularly with the conclusions reached by her Honour in relation to the application for extension of time within which to appeal [8] ‑ [13] and [19] ‑ [26].
This was an application for an extension of time where there was a very lengthy delay. It was insufficiently accounted for by the appellant in both affidavit form and oral testimony.
In my opinion, there was absolutely no prospect of success on the ground of appeal advanced by the appellant and I agree that the application should be dismissed.
At the hearing of the application, I dissented in relation to the question whether the appellant should be allowed to give oral evidence to supplement his affidavit evidence. The reason for my dissent was that the application was made without notice, in a moment of apparent panic by counsel for the appellant, and without any indication of what the oral evidence might be and whether it could assist the court.
As it happened, the oral evidence given by the appellant did nothing to assist his cause and, if anything, further damaged it. My views on the wisdom of counsel making the application he did were sufficiently ventilated at the hearing.
84
12
2