ATTORNEY-GENERAL v CURRAN

LOWER COURT District Court JURISDICTION : LOWER COURT 02/22/1668 FILE NUMBER(S) : LOWER COURT Morgan DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60152/04

SHELLER JA SPERLING J ADAMS J

Friday, 9 July 2004 ATTORNEY-GENERAL v Matthew CURRAN On 8 November 2002, the respondent was convicted of an offence pursuant to s61M of the Crimes Act 1900, namely, assaulting an eleven year-old girl and at the time of the assault committing an act of indecency on her, namely licking her breasts. This assault occurred in circumstances of aggravation in that at the time of the offence the victim was under sixteen years old.

The respondent appealed this conviction to the District Court and on 27 February 2003, the trial Judge, although finding the facts of the assault proved, allowed the appeal and dismissed the charge on the grounds that, by reason of his self-induced intoxication, her Honour was not satisfied that the respondent had formed an intention to commit the offence charged.

On 15 April 2004, over thirteen months later, Judge Morgan stated a case pursuant to s5B of the Criminal Appeal Act 1912, at the request of the Attorney-General, submitting for determination to this Court the question as to whether her Honour erred in taking into account, in considering mens rea for the offence, the self-induced intoxication of the respondent. Section 5B(2) provides that a question of law, "must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow." The appellant therefore sought an indulgence on the part of the Court of Criminal Appeal to grant an extension of time and entertain the stated case. Counsel for the respondent opposed an extension of time for the submission of the question of law.

Held: per Sheller JA, Sperling and Adams JJ agreeing:

1. The grant of an extension of time under s5B is not automatic and the discretion to do so is to ensure that fixed times for doing acts do not become instruments of injustice. This involves a consideration, amongst other things, of the conduct of the parties, the consequences of the grant or refusal of an extension of time and the prospects of success of the proceedings.
2. On the material before the Court, the prospects of the question of law being answered in a way which would favour the prosecution are good, particularly in light of s428D of the Crimes Act, and there is a likelihood that the order of the trial Judge worked an injustice in that the appellant was wrongly acquitted.
3. The Counsel appearing for the DPP or informant before Justice Morgan made no reference to s428D of the Crimes Act. Thus the informant or DPP, although no doubt unwittingly, played a significant part in the injustice occurring. There is no evidence, which indicated when it was first realised amongst those responsible for the prosecution that there had been this oversight.
4. The thirteen-month delay in requesting the stated case is largely unexplained. There is no sign of any attempt to expedite the various representations and advices until the matter came before the Crown Advocate.
5. The Court does not accept that the applicant was not prejudiced by the delay. The respondent, on 27 February 2003, would have rightly regarded himself as acquitted of the charge and nothing happened until January 2004 to suggest to the respondent that an extension of time was to be sought by the DPP.

6. The responsibility was placed on the prosecutor to move with expedition to ensure that the legislative time limit was met. It would be a travesty of justice to grant an extension which would excuse the time that had elapsed in this case which, in part, was unexplained.
7. In any event, the Attorney-General had no standing for procedural reasons to request a stated case because there was no evidence of the Director of Public Prosecutions taking over the proceedings in the District Court from the informant.

Crimes Act 1900 Criminal Appeal Act 1912 Director of Public Prosecutions Act 1986 Justice Legislation Amendment (Non-association and Place Restriction) Act 2001

Gallo v Dawson (1960) 64 ALJR 458 ORDER 1. Extension of the time for filing the stated case is refused; 2. Accordingly, the Court refuses to answer the question of law submitted because the question was submitted out of time. **********

THE COURT OF CRIMINAL APPEAL 60152/04

SHELLER JA SPERLING J ADAMS J

Friday, 9 July 2004 ATTORNEY-GENERAL v Matthew CURRAN Judgment 1 SHELLER JA: On 8 November 2002 Matthew Curran was convicted by the Local Court at Blacktown of an offence pursuant to s61M of the Crimes Act 1900, namely, that on 5 May 2002 at Blacktown he assaulted an 11 year old girl and at the time of the assault committed an act of indecency on her "to wit, licked breasts". This offence was committed in circumstances of aggravation in that at the time of the offence she was under the age of 16 years. 2 Mr Curran forthwith lodged an appeal to the District Court. On 27 February 2003 her Honour Judge Morgan upheld his appeal. Her Honour found the facts of the indecent assault and the circumstances of aggravation proved but also found that the appellant was extremely intoxicated as a result of his having consumed intoxicating liquor and that his intoxication was self-induced. For reason that because of his self-induced intoxication her Honour was not satisfied that the appellant had formed an intention to commit the assault charged, she allowed the appeal, dismissed the charge and quashed the order of the Local Court. 3 During the appeal, s428D of the Crimes Act was not brought to the attention of the judge. That section provides, relevantly: "In determining whether a person has the mens rea for an offence other than an offence of specific intent, evidence that a person was intoxicated at the time of the relevant conduct: (a) if the intoxication was self-induced - cannot be taken into account …" 4 Section 428B (1) defines "an offence of specific intent" as an offence of which an intention to cause a specific result is an element. Subsection (2) provides that without limiting the generality of subsection (1) the offences referred to in a table, which follows in the section, are examples of offences of specific intent. The offence with which the appellant was charged is not referred to in the table. For present purposes, I assume, without deciding it that the offence with which the appellant was charged was "other than an offence of specific intent". 5 On 15 April 2004, that is to say, over thirteen months after Judge Morgan quashed the order of the Local Court, her Honour stated a case pursuant to s5B of the Criminal Appeal Act 1912 at the request of the Attorney-General submitting for the determination of this Court the question: "Did I err in taking into account the self-induced intoxication of Matthew Curran in considering whether or not he had the mens rea for the offence with which he was charged?" 6 Section 5B(1) of the Criminal Appeal Act provides that a judge of the District Court may submit "any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit." Subsection (2) provides that at the request of a person "who was a party to appeal proceedings referred to in subsection (1)," a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. "The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow." 7 Jurisdiction for this Court to entertain the request depends upon the Court allowing the question of law to be submitted after the 28 day period. I turn to consider this question. 8 In claiming this indulgence, the Attorney-General relied upon two affidavits made by James Alexander Shevlin of 30 June and 5 July 2004 respectively. These were read without objection. In his first affidavit Mr Shevlin says that subject to the supervision of the Crown Solicitor, he is the solicitor who has carriage of the matter for the Attorney-General. I summarise the essence of what follows. After Judge Morgan made her order, apparently nothing of note took place until nearly two months later when on 24 April 2003 the Office of the Director of Public Prosecutions (DPP) received representations on behalf of the victim of the offence. A report was requested from the solicitor who prosecuted the matter. This report was provided on 23 May 2003. Consequently, on that date, staff more senior than the solicitor who appeared before Judge Morgan reviewed her Honour's judgment. On 10 June 2003 the DPP considered whether or not to initiate proceedings under s5B and decided not to do so. 9 In about May 2003 for the first time the matter came to the attention of the Attorney-General and at some time unspecified representations were sent to the DPP which were answered. Further representations were received by the DPP on 28 August 2003 to which the DPP responded on 22 September 2003. Over two months passed and on 8 December 2003 the Attorney-General requested the advice of the Crown Advocate which was promptly provided on 9 December 2003. Further advice was furnished, again promptly, on 15 December 2003. On 13 January 2004 the DPP requested the Attorney-General, pursuant to s29 of the Director of Public Prosecutions Act 1986, to consider the exercise of the Attorney-General's corresponding function in relation to the matter. On that same day the Attorney-General determined that he would request Judge Morgan to state a case pursuant to s5B of the Criminal Appeal Act. Also on 13 January 2004, the Attorney-General retained the Crown Solicitor to act for him in the matter and on 14 January 2004 the carriage of the matter was assigned to Mr Shevlin. 10 I note in passing that s29 enables the DPP, if the DPP considers it desirable in the interests of justice that the DPP should not exercise certain functions in relation to a particular case, to request the Attorney-General to exercise the Attorney-General's corresponding functions. 11 From that time on, steps were taken expeditiously to obtain a stated case from Judge Morgan. On 26 February 2004 Mr Shevlin contacted Judge Morgan, who was then presiding at the Coffs Harbour District Court, and an appointment was made to attend in her Honour's chambers at the Downing Centre on 1 March 2004. However, there were problems in making contact with Mr Curran, which resulted in the cancellation of that appointment. On 24 March 2004 Mr Shevlin wrote to the Registrar of the District Court advising of the Crown Solicitor's instructions and sending a copy of a draft stated case. Some communication then took place between Mr Shevlin and Mr Curran's solicitor. In early April Mr Shevlin attempted unsuccessfully on more than one occasion to contact Judge Morgan but was inhibited by damage that had been done to the telephone lines at the Coffs Harbour District Court. For various reasons, not the fault of the Crown Solicitor, there was some delay in the draft stated case being sent or received by Judge Morgan. On 13 April 2004 Mr Shevlin attended at the Downing Centre and obtained the draft stated case from the Associate to her Honour but there was further delay of an administrative kind before eventually, on 15 April 2004, the stated case was signed and filed in the Registry. Thereafter, it was listed for mention in this Court on 3 May 2004. 12 Counsel for Mr Curran opposed an extension of time for the submission of the question of law. 13 In Gallo v Dawson (1990) 64 ALJR 458 McHugh J considered an application for an extension of time in which to file a notice of appeal against an order dismissing an action brought in the original jurisdiction of the Court. His Honour accepted that the appeal was one of right but that a notice of appeal had to be lodged within 21 days of the judgment appealed against. His Honour continued at 459: "Thus, the present application was made over 16 months out of time. However, the applicant relied on the provisions of O 60, r 6 to support her application. That rule provides that the Court of a Justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-264; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935: 'The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.' " 14 The grant of an extension under s5B is not automatic and the discretion to do so is to ensure that fixed times for doing acts do not become instruments of injustice in this case. The question is whether the time limitation will work an injustice. This requires, amongst other things, considering the conduct of the parties and the consequences of the grant or refusal of the extension. Also relevant are the prospects of success of the proceedings if time is extended. 15 For present purposes, I am prepared to accept, on the material before us, that the prospects of the question being answered in a way which would favour the prosecution are good. This being so, it is no doubt true to say that the likelihood is that the order of Judge Morgan worked an injustice in that Mr Curran was wrongly acquitted. As against that, at the expiry of the 28 days, Mr Curran had a vested right to retain the judgment unless the application to extend is granted. 16 It is plain from the terms of the stated case that counsel appearing for the informant or DPP before Judge Morgan made no reference to s428D of the Crimes Act. Thus, no doubt unwittingly, and such mistakes can happen, the informant or DPP played a significant part in the injustice occurring. There is no evidence which indicates when first it was realised amongst those responsible for the prosecution that there had been this oversight. It is not known whether the section was brought to the attention of the Local Court. Nor are we informed for what reason the DPP decided not to request a case stated. However, I would assume that by this time the error had been recognised. 17 The case came to the attention of the Attorney-General in or about May 2003. By 10 June 2003 it must have been realised that the DPP had decided not to initiate proceedings under s5B and that, if initiated, an extension of time of at least three or four months would be required. 18 There followed a period of about six months taken up with representations and requests for advice. But, it must by the beginning of that period have been glaringly obvious what the alleged error was and that such delay could not be justified. There is no sign of any attempt to expedite the various representations and advices until the matter came to the attention of the Crown Advocate. The delay is largely unexplained. 19 The Attorney-General submitted that the appellant was not prejudiced by delay. I do not accept this. I surmise that on advice the appellant on 27 February 2003 would have rightly regarded himself as acquitted of the charge. He may have been advised that the DPP might request a case to be stated but that that would have to be filed within 28 days. It may be that it was pointed out to him that the DPP could seek an extension of time if justified. However, so far as Mr Curran was concerned, nothing happened to suggest that any such extension was, in fact, to be sought. Apparently the first attempt to communicate with Mr Curran was on 20 January 2004. In my opinion, it would only be in the most exceptional case that an extension of time of the sort currently requested, namely over a year, could be justified.

20 The following matters need to be remembered. First, the informant or DPP was party to the mistake that Judge Morgan made. Second, the decision in this case, if favourable on the question of law submitted, would not settle any question of general public importance. It is directed solely against the acquittal of Mr Curran. Next, we are told that on conviction the Local Court imposed a penalty by way of a bond with conditions. We are also told that on conviction Mr Curran could be liable to non-association and place restriction orders or conditions; see generally the Justice Legislation Amendment (Non-association and Place Restriction) Act 2001. 21 The charge against Mr Curran was a very serious one and I can well understand the victim's concern about the appeal being upheld. Anybody familiar with the terms of s428D may well immediately have recognised that an injustice had probably been done. But the responsibility is placed on the prosecutor taking account of these matters, to move with expedition to ensure that the legislative time limit of 28 days was met. While some indulgence can be given in particular circumstances which would allow extension for a short or reasonable period of time, particularly if sought before the expiry of the 28 days, in this case it would be a travesty of justice to grant an extension which would excuse the time that had elapsed in this case which in part was unexplained. 22 At the conclusion of the argument on behalf of the Crown, it became apparent that in any event the Attorney-General had no standing for procedural reasons to request a stated case. His standing depended upon the DPP having taken over the proceedings in the District Court from the informant. There was no evidence that the DPP did this and in particular the Attorney-General acknowledged that no notice in writing so informing the Court under s10 of the Director of Public Prosecutions Act had been given to the Court. 23 I propose the following orders: 1. Extension of the time for filing the stated case is refused; 2. Accordingly, the Court refuses to answer the question of law submitted because the question was submitted out of time. 24 SPERLING J: I agree with Sheller JA. 25 ADAMS J: I agree with Sheller JA. **********

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