Applicant v First respondent

1. In June 2017, an incident occurred at a junior football game in Heidelberg which led to Glenn Archer being charged with unlawful assault by Adam Donnelly, a police officer. The charge was heard in the Magistrates' Court at Heidelberg on 1 September 2017 before Magistrate Lamble. Mr Archer pleaded guilty to the charge after receiving certain legal advice as to the likely outcome of the hearing. That advice followed discussions between his then legal representative with the prosecution. Contrary to Mr Archer's expectations, with conviction her Honour fined him the sum of $2,000 plus costs and ordered that he pay compensation of $955. Her Honour took into account that Mr Archer had two prior, if historical, offences of like kind. During the course of the hearing, the magistrate quite properly made clear to Mr Archer's legal representative that, whatever discussions had occurred between the prosecution and the defence, sentencing was entirely a matter for her. Mr Archer's legal representative continued with the hearing anyway.
2. When the sentence was announced by her Honour and after the hearing, Mr Archer made clear in various ways that he was unhappy with the outcome of the case. On 21 September 2017 and within the 28 day appeal period, his legal representative filed with the court an unsigned notice of appeal against sentence to the County Court of Victoria. At the request of the Magistrates' Court at Heidelberg, his legal representative later asked Mr Archer to sign the notice, but not that this had to be done urgently. Mr Archer sought legal advice from a barrister in early-mid October, who did not tell him that he could appeal against both sentence and conviction, despite his plea of guilty, or that the time limit was 28 days. A signed notice of appeal was ultimately filed, but only against sentence. Mr Archer consulted his present legal representatives, who are criminal law specialists, later in October. They advised him for the first time that he could appeal against both sentence and conviction. Through them, an application was made for leave to appeal in respect of both sentence and conviction in late October 2017.
3. The application for leave to appeal was heard and determined by Judge Grant on 21 November 2017. Against the opposition of the prosecution, his Honour granted leave. On behalf of the informant and under O 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), the Director of Public Prosecutions now seeks an order in this court by way of judicial review quashing that grant of leave. It is contended that his Honour misinterpreted or misapplied s 263(2)(a) of the Criminal Procedure Act 2009 (Vic) in which a test of exceptional circumstances is specified. As I stated in a similar case in Tomasevic v Travaglini and was accepted by the parties in this case, it is not part of my function in determining the application for judicial review to reconsider on the merits the application for leave to appeal.[1] The DPP must establish legal error, such as jurisdictional error or a failure to consider relevant considerations or considering irrelevant considerations on the part of Judge Grant.
4. In able submissions, counsel for the DPP relied upon various grounds which were addressed in written submissions, which I have considered, and developed in oral argument. In summary, it was submitted that the judge considered irrelevant considerations, especially the merits of what happened in the hearing before the magistrate, and erred in law in finding that exceptional circumstances were made out. No attack was made upon the findings made by his Honour.
5. It was common ground in this case that s 263(2)(a) confers a discretion to grant leave to appeal after the 28 day period has expired. To enliven that discretion, the applicant must establish that the failure to lodge a notice of appeal within that time was due to exceptional circumstances. In their written submissions, the parties referred to principles discussed in various authorities which I have considered, including Schwerin v Equal Opportunity Board,[2] R v Ioannou,[3] Owens v Stevens,[4] M.A.C. v The Queen,[5] Coulston v State Coroner of Victoria,[6] and Kohari v The Queen.[7] As made clear by Redlich JA (with the agreement of the other members of the Court of Appeal) in Ioannou, the circumstances must be such as rarely occur, and clearly unusual or quite special and distinctly out of the ordinary, and be related to why the appeal was not commenced within the specified time.[8]
6. Judge Grant granted the application for leave to appeal for reasons explained in the ruling that his Honour gave. Contrary to the submissions of the DPP, I cannot discern from a fair reading of this ruling that his Honour granted leave to appeal by reason of the merits of what occurred at the hearing before the magistrate. I think his Honour made reference to what occurred there because it was essential procedural and factual background for the determination of the application for leave to appeal and because it shed light upon why Mr Archer did not commence the appeal within time. If the judge had decided to grant leave to appeal because Mr Archer was unhappy with the outcome of the hearing, I would certainly have quashed the decision because this is not what the statutory test requires. But his Honour did not do so.
7. The central consideration informing his Honour's decision is to be found in a passage in the ruling in which he accepted Mr Archer's evidence that he was initially not given certain legal advice; that the legal advice that he was given was incomplete or inadequate; and that he later acted promptly when he was given proper legal advice by his present legal representatives. In relation to these matters, his Honour found:

Mr Archer said on oath that he was told he should call in and sign the documents but that he did not understand that he had to do that within a certain time. I accept that evidence. Mr Archer said on oath that he was not advised of his right to appeal against both conviction and sentence, and because he was not given advice on that matter, he thought he could only appeal against sentence. I have no reason to doubt his evidence on this point.

On 22 September 2017 he met with a barrister to discuss the proposed appeal against sentence. He gave evidence that he was not advised at that time that he could appeal against conviction, and that is consistent with the fact that he sought further advice as to his rights. Indeed, he consulted Mr Stary in October and then Mr Norton from the same firm, and when he became aware of his right to appeal against both conviction and sentence, he exercised that right by filing the appropriate form in a prompt manner.

The judge committed no legal error in determining that, on these found facts, exceptional circumstances were established.

1. I would accept the submissions made by the DPP that it might not be enough for an applicant for leave to appeal to plead ignorance of the law or rely upon the inadequacy of legal advice. Kalb v Magistrates' Court of Victoria[9] is an example of leave being refused in that kind of case. But in the present case, the period of delay was only a few weeks. On the judge's findings, it was wholly explained by an unfortunate sequence of events related to plainly inadequate legal advice given to Mr Archer, for which events his Honour found Mr Archer was not responsible. At no time did Mr Archer sit on his hands. He was not the author of his own misfortune. He consistently worked the issues through until he ultimately retained specialist criminal lawyers and then acted promptly on their advice, as the judge found.
2. It would have been a legal error for the judge to grant leave to appeal upon the basis that Mr Archer was incompetently advised to plead guilty. This in itself would not have been enough. But his Honour did not so proceed and his plea in the Magistrates' Court was not the real issue. Under ss 254(1) and 256(1) of the Criminal Procedure Act, Mr Archer was entitled to appeal to the County Court against both sentence and conviction whatever plea he entered in the Magistrates' Court. An appeal must be conducted as a rehearing in both kinds of appeal. His Honour discussed the plea of guilty in the Magistrates' Court because it was related to the issue of the legal advice he was given generally, which included his appeal rights and the procedure to be adopted in that regard, albeit that on his Honour's findings the advice was not complete in relation to these matters. On the found facts, these matters were centrally related to whether the delay was due to exceptional circumstances, and indeed it would have been an error of law for his Honour to ignore them. Therefore, in my view, this was not a case in which Mr Archer's found ignorance of the law was irrelevant. It necessarily went into the mix in relation to the explanation for the delay.
3. I do not accept that the judge took into account the prospects of success of Mr Archer's appeal in relation to whether exceptional circumstances were established. Having found that such circumstances were established, his Honour had to exercise the discretion to grant or refuse leave to appeal. In granting that leave, he observed that it would be unfair to refuse Mr Archer the opportunity to defend himself, by which I think he meant that it would be unfair to refuse to exercise the discretion in Mr Archer's favour when the delay in commencing the appeal was due to exceptional circumstances, as he found. This remark was connected with his finding (recorded in the same paragraph) that the prosecution did not contend that it had been prejudiced by the delay.
4. It has not been established that Judge Grant incorrectly interpreted or applied the exceptional circumstances test in s 263(2)(a) of the Criminal Procedure Act. His Honour did not fail to take relevant or take irrelevant considerations into account. No error of law on the face of the record or jurisdictional error was committed. His Honour did not err in law in finding that exceptional circumstances were made out on the found facts.
5. Quite properly, the application for leave to appeal before the judge and the application for judicial review in this court have proceeded upon the basis that Mr Archer sought leave to appeal against both conviction and sentence. It may be that even the most recent filed and signed notice of appeal in the County Court does not make this clear, although other documents filed in this and that court do. However, this can easily be corrected.
6. For those reasons, the application for judicial review will be dismissed.

[1] [2007] VSC 337; (2007) 17 VR 100, 110 [55] (Bell J).

[2] [1994] VicRp 60; [1994] 2 VR 279.

[3] [2007] VSCA 277; (2007) 17 VR 563 ('Ioannou').

[4] (Unreported, Supreme Court of Victoria, Hedigan J, 3 May 1991).

[5] [2012] VSCA 19; (2012) 34 VR 193.

[6] [2018] VSC 103 (8 March 2018).

[7] [2017] VSCA 33 (1 March 2017).

[8] [2007] VSCA 277; (2007) 17 VR 563, 568 [17].

[9] [2014] VSC 137 (31 March 2014).