Bolton (a pseudonym) v The Queen [2021] VSCA 117

1 Following a trial in the County Court before Judge Gaynor and a jury, the applicant was convicted of eight sexual offences, comprising six charges of incest committed against his daughter and one of his granddaughters, one charge of gross indecency with a person under 16, namely, his daughter, and one charge of committing an indecent act with a child under 16, his granddaughter.

2 All but one of the incest charges related to allegations of oral penetration of the applicant's penis. The exception was charge 2, which alleged that, on a date between 7 July 1984 and 6 July 1986, he took part in an act of sexual penetration with the victim, his daughter, in that he introduced his penis into the victim's anus.

3 Following his conviction the applicant was sentenced as follows:

Sex offender registration order (reporting period: life).

4 The applicant now seeks an extension of time pursuant to s 313 of the Criminal Procedure Act 2009 ('CPA') in order to appeal the verdict on charge 2 on the basis that the verdict was unreasonable or cannot be supported having regard to the evidence. By way of particulars to that ground, the applicant contends that the evidence did not establish beyond reasonable doubt that sexual penetration had occurred. He seeks that the conviction be set aside, but accepts that were that to occur, a conviction for attempted incest could be entered in its stead.

5 The hearing of the applications for an extension of time and leave to appeal were listed before me for hearing. For the reasons that follow, the application for an extension of time will be refused.

6 The applicant was sentenced on 9 August 2019. Any application for leave to appeal the conviction was required to be filed within 28 days,[10] which expired on 6 September 2019. The application for an extension of time was made on 3 August 2020. Thus the application was about eleven months out of time.

7 The application for an extension of time is supported by two affidavits. The applicant's solicitor, Nicholas Jane, deposes that on 9 August 2019, trial counsel sent through an appeal memorandum, which advised that there was merit in an appeal against conviction and sentence. Following a request by Victoria Legal Aid ('VLA') for a more detailed merits advice, the further merits advice was obtained and provided to VLA on 27 August 2019. I was told on the hearing of the application, although it does not appear in the affidavit, that the initial merits advice identified the present ground of appeal which the applicant would seek to advance.

8 On 11 October 2019, VLA refused to grant funding. Between October 2019 and 25 November 2019, steps were taken to obtain private funding for the appeal. The solicitors were placed in funds on 25 November 2019.

9 The second affidavit is from appeal counsel who deposes that he was briefed on 25 November 2019 and, on reading the brief, considered that there was a reasonably arguable ground of appeal against conviction in relation to charge 2, on the basis that the evidence did not establish beyond reasonable doubt that sexual penetration had occurred. Notwithstanding that by late November 2019, the point had been identified both by trial counsel and counsel who prepared the appeal documents, counsel did not prepare the applications and written case until shortly before they were filed in early August 2020. That is, counsel took some eight to nine months to prepare the written material.

10 The explanation for the delay is that counsel was overworked and in his affidavit he identifies a significant number of other cases in which he prepared appeal documents during this period. In addition, he says that family responsibilities played a part in the delay.

11 Based on that evidence, counsel submitted that the responsibility for the delay rested with him and that the applicant should not be penalised for it. Further, he submits that the solicitors were not responsible for the delay. He submits that there is an arguable ground of appeal and it would result in an injustice for the extension to be refused in circumstances where, if the ground of appeal succeeds, the conviction would be set aside.

12 The respondent opposes the extension of time. The respondent submits that there has not been an adequate explanation for the delay, the ground is not arguable and although there is no specific prejudice to the respondent, there is significant value in the timely administration of justice and it is in the interests of victims and witnesses that criminal proceedings be finalised promptly. An extension of time of the order of magnitude sought prolongs the impact of the criminal process and it should not be granted in this case.

13 Addressing a matter raised by the Court, the respondent submits that even if the appeal were successful and the lesser charge of attempted incest were substituted, no lesser sentence would be imposed and therefore there is no injustice in refusing the application for an extension of time. The applicant accepts the possibility that the sentence would not be altered is a matter that this Court could take into account in its assessment of the interests of justice for the purpose of determining whether or not to extend time, but submits that if the evidence did not support a conviction on charge 2, it would be a significant injustice for the conviction to stand.

14 The discretion to extend time is a broad one and ultimately depends on the interests of justice. The factors that inform the proper exercise of the discretion have been distilled in many cases. In Madafferi v The Queen,[11] this Court said:

The applicant carries the burden of persuading this Court that an extension of time should be granted. When considering the application, it must be acknowledged that time limits exist for sound reasons. Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition (consistently, of course, with the imperative of correcting substantial miscarriages of justice). The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal. Although the exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances of the case, the length of the delay - and the reasons for it - and the prospects of success should the extension be granted, are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise. Thus, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the court may incline towards granting an extension. Where the merits of the proposed appeal are very poor, however, even a satisfactory explanation for the delay might not justify an extension. The discretion must, as we have said, be exercised according to the individual facts of each case.[12]

15 In this case there are three factors that warrant specific mention: the explanation for the delay, the importance of finality, and the strength of the proposed ground of appeal.

16 On the first issue, I am far from persuaded that there is an acceptable explanation for the delay. First, the issue as to whether the prosecution had established an attempted penetration or a completed act was clearly identified at trial. In the context of an appeal, the ground was first raised by trial counsel in a memorandum in August 2019. It was subsequently identified by appeal counsel in November of that year. The point is confined and not complex. It involves consideration of a confined portion of the evidence.

17 The delay in briefing fresh counsel in November 2019 was not adequately explained. Similarly, the delay in obtaining funding to finance the application does not, in the circumstances, provide a cogent explanation for the delay.

18 The delay between November 2019 and August 2020 was explained by the workload of counsel. In my view, that is a weak reason to justify an extension of time. Given the existence of time limits, it was incumbent on counsel to take steps to finalise the material in a timely way or, if that was not possible, to return the brief. In this context, it is not possible to exonerate entirely either the applicant or his solicitors. The solicitors had an obligation to act in the best interests of their client. Faced with the inordinate delay, steps should have been taken to have documents prepared or, if that were not possible, the brief returned. There is no evidence on the present application as to what steps, if any, were taken by the solicitors.

19 Given that the applicant was advised about the merits of an appeal in August 2019, I am not prepared to infer that the applicant was unaware that a time limit existed in relation to an application for leave to appeal. There is no evidence that explains what the applicant knew about the existence of a time limit or what steps he took to ensure that it was complied with.

20 It is often said in the present context that the client should not be visited with the consequences of his or her lawyer's default. In many cases that will be true. However, it cannot be assumed that in every case retaining lawyers will immunise a client from the consequences of a failure to meet a relevant time limit.

21 Turning to the importance of finality, it must be acknowledged that the respondent could not identify any specific prejudice should an extension of time be granted. However, a criminal proceeding involves many people for whom the existence of the proceedings is a cause of great stress and anxiety. They include the accused person but also victims and witnesses. It must be recognised that extensions of time, particularly when long periods are involved, often entail a renewed level of stress arising in a context where the participants might reasonably expect the criminal process to have come to an end. Similarly, the community has an interest in the timely resolution of criminal proceedings.

22 In the present case it is notable that, should the ground be successful, there is no prospect of a further trial. Witnesses would not be subject to the risk of a further trial long after the conclusion of the first trial. The applicant accepts that success on his ground of appeal could result in a substituted conviction for an attempt which would require this Court to resentence in respect of that charge.

23 It is necessary then to have regard to the prospects of success of the proposed ground of appeal. Put simply, the applicant contends that the evidence did not permit the jury to be satisfied beyond reasonable doubt that the applicant's penis penetrated, to any extent, the anus of the complainant. In order to understand the ground it is convenient to set out the evidence relating to charges 1 and 2. Charge 1 related to the same incident which gave rise to charge 2. It was alleged that the applicant procured the commission of an act of gross indecency by having his daughter apply Vaseline to his penis as a precursor to the anal penetration that formed the subject of charge 2.

24 At trial, during examination-in-chief, the following exchange took place between the prosecutor and the complainant concerning charges 1 and 2:

Prosecutor: Would you, please, tell the jury exactly what happened? Firstly, what were you wearing?

NA: I don't remember what I was wearing. Um, I do recall that he would ask me to get naked, and I would get naked.

Prosecutor: On this particular occasion, what happened in your mother's bedroom?

NA: I was asked to get naked. Um, we got Vaseline. I'm not sure where, from either the bedside table or from the bathroom, which was right next door. Um, I would manually masturbate him and then put Vaseline on his penis, and then he asked me to go on my hands and knees on the end of the bed while he was standing.

Prosecutor: And what happened then?

NA: He attempted to have sex with me.

Prosecutor: Could you, please, be more specific? Exactly what did he attempt to do?

NA: He attempted to put his penis in my bottom.

Prosecutor: Would you, please, describe what your physical sensation was at that time?

NA: It felt painful. So I asked him to stop.

Prosecutor: And did he?

NA: Yes.

...

25 In cross-examination, NA was taken to the incident, which the cross-examiner referred to as the 'attempted anal penetration'. NA said that she thought it had happened when she was around 13 or possibly 14 but could not remember the year or month in which it occurred. NA agreed that it was the first and only time that the applicant had attempted to have anal penetrative sex with her.

26 In her charge to the jury the judge noted that there was no direct evidence from the complainant that she felt the applicant's penis enter her anus and that the prosecution were seeking to infer penetration from the complainant's evidence that the applicant's conduct hurt her and she asked the applicant to stop. The jury was told that the case rested on inferences to be drawn from the evidence of the complainant.

27 On the issue of penetration the judge told the jury, correctly, that penetration could be to any extent of the anus and it did not need to result in ejaculation.

28 The judge next told the jury that in the event that they were not satisfied that there had been penetration, they were to consider the alternative charge of attempted incest. In that context, the judge directed the jury that an attempt requires an intention to commit the crime and conduct that is more than merely preparatory to the commission of the offence and which is immediately and not remotely connected with the commission of the offence.

29 Charge 2 alleged incest. Section 52(1) of the Crimes Act 1958, in the form it was in at the relevant time, prescribed the elements of the offence. It provided that a person who takes part in an act of sexual penetration with a person who is 10 years or older and whom he knows to be his child, other lineal descendant or step-child is guilty of the offence of incest. Section 2A relevantly defined sexual penetration as the introduction (to any extent) of the penis of a person into the anus of another person. Section 52(2) provided for an offence of attempt to commit incest.

30 The issue on the present application is whether the evidence supported the conviction for charge 2 (incest). In resolving that issue, it is important to observe that the applicant accepts that the jury was entitled to accept the complainant's account beyond reasonable doubt.

31 The question is whether, even if the complainant's account were accepted in full, the evidence contained a basis on which the jury, properly instructed, could find that there had been penetration to any extent. As the judge directed the jury, the prosecution case was that penetration could be inferred because the complainant experienced pain.

32 A similar issue arose in Scannell v The Queen.[13] In that case, this Court refused an application for leave to appeal against conviction on the basis that it was open to the jury to be satisfied that penetration of the complainant's anus by the applicant's penis had occurred. Significantly, in that case, early on in the complainant's evidence, he described '[feeling] something press between [his] buttocks' and 'something hit the back of - hit [his] anus', causing him to '[feel] a little bit of discomfort and pain'. Justice Priest, with whom the other members of the Court agreed, said that '[h]ad the matter rested there, doubtless the evidence would not have been sufficient to found an inference that penetration had occurred.'[14]

33 Unlike in this case, in Scannell, the prosecutor went on to elicit further evidence that supported a conclusion that penetration had occurred. Priest JA observed that based on his own assessment, 'the jury might well have experienced a reasonable doubt about penetration, but they were not compelled to'.[15] Additional evidence of the kind adduced in Scannell, and which was essential to the outcome in that case_,_ was not adduced in this case.

34 The difficulty in the present case was compounded by the prosecutor's reference to an attempted penetration. Both defence counsel and the judge also referred to the incident as the attempted anal penetration. In that context, the complainant's evidence must be seen as responding to questions which had specifically identified an attempted penetration. It might be said that the prosecutor was doing no more than identifying the incident, however, it supports the argument that the scope of the evidence was not modified or extended by its context.[16]

35 There is an arguable case that the conviction on charge 2 cannot be supported by the evidence but, in the event that the ground is upheld, the conduct would sustain a conviction for attempt.

36 In my view, of the three principal matters - namely, the explanation for the delay, finality and prospects of success - only the last favours an extension. However, the test for the extension is not the same as the test for leave to appeal. In other words, the existence of an arguable ground of appeal does not compel the Court in every case to grant an extension of time. It is an inevitable consequence of limitation periods that cases which may have underling merit may not be permitted to proceed.

37 The delay in this case is inordinate and has not been adequately explained. There is a real interest in finality. As things presently stand, the applicant has been convicted of six counts of incest. He submits that the record should be corrected to record five convictions for incest and one conviction for attempted incest, and that there is a real injustice to him if he is prevented from that occurring. There is clearly both a personal and a public interest in overturning erroneous convictions. However, here, success in an appeal would not, in any sense, remove the stain of a very serious conviction for the particular conduct.

38 Furthermore, in assessing the interests of justice, I have taken into account the very likely consequence that even if an alternative charge of attempted incest were substituted, and a conviction recorded for that offence, no lesser sentence would be imposed. The sentence of 2 years' imprisonment imposed by the judge on the relevant charge of incest after a trial can only be explained by the fact that the judge was sentencing the applicant for multiple serious offences and needed to keep totality in mind. The same may be said for the very low cumulation. Given that the sentence of 7 years was imposed on charge 3, it is clear that the commonly applied approach - which required the judge to impose the appropriate sentence on each charge and address questions of totality, informed by the overall level of criminality involved through cumulation and concurrency - was not adopted in this case.[17] Even if the conviction for the completed act of penetration were set aside, on any view, it was a very serious attempt for which a sentence of 2 years with 1 year cumulation could not reasonably be reduced.

39 In the circumstances, I am not persuaded that a refusal of an extension of time would work a significant injustice.

40 Balancing the three principal issues that I have identified, I am not persuaded that it is in the interests of justice to extend the time for the applicant to file an application for leave to appeal against conviction.

[1] To ensure there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant's name.

[2] Crimes Act 1958 s 50(1).

[5] Ibid s 44(1).

[8] Ibid s 47(1).

[9] Ibid s 44(1).

[11] [2017] VSCA 302.

[12] Ibid [11] (Priest, Hansen and Coghlan JJA) (citations omitted).

[13] [2014] VSCA 330 ('Scannell').

[16] Cf Harmer (a pseudonym) v The Queen [2020] VSCA 310, [98] (Niall JA, Maxwell P agreeing).

[17] DPP v Grabovac [1998] 1 VR 664.