Bolton (a pseudonym) v The Queen [2021] VSCA 237

1 On 14 June 2019, following a jury trial before a County Court judge, the applicant was convicted of the offences set out in the table below. On 9 August 2019, he was sentenced as set out in that table:[2]

Gross indecency with a child under 16 [Crimes Act 1958 s 50(1)]

Incest [Crimes Act s 52(1)]

Incest [Crimes Act s 52(1)]

Incest [Crimes Act s 44(1)]

Incest [Crimes Act s 44(1)]

Incest [Crimes Act s 44(1)]

Indecent act with a child under 16 [Crimes Act s 47(1)]

Incest [Crimes Act s 44(1)]

Total effective sentence: 12 years and 3 months' imprisonment

Non-parole period: 9 years and 6 months' imprisonment

Other orders: Reporting period of life pursuant to s 34 of the Sex Offenders Registration Act 2004

2 Incest charges 2 and 3 involved the applicant's daughter ('AB'), whilst incest charges 8, 9, 10 and 12 involved a granddaughter ('CD'). The gross indecency charge involved AB, whilst the indecent act with a child under 16 charge involved another granddaughter ('EF'). Charges 3, 8, 9, 10 and 12 involved penile penetration of the victim's mouth. Charge 2 alleged that, on a day between 7 July 1984 and 6 July 1986, the applicant penetrated AB's anus with his penis.

3 The applicant has sought leave to appeal against his conviction on charge 2 on the basis that the jury's guilty verdict was unreasonable or cannot be supported having regard to the evidence.[3] That is said to be because the evidence did not establish beyond reasonable doubt that sexual penetration had occurred. The applicant seeks the setting aside of the conviction on charge 2.

4 The application for leave to appeal against conviction was filed on 4 August 2020, nearly 11 months after the time limit set out in s 275(1) of the Criminal Procedure Act 2009 ('CPA') expired on 6 September 2019 (being 28 days after the applicant was sentenced on 9 August 2019). Accordingly, on 4 August 2020, the applicant also applied for an extension of time within which to file his notice of application for leave to appeal against conviction.

5 On 11 May 2021, Niall JA refused the application for an extension of time. He held that, whilst the proposed ground of appeal was arguable, the applicant's delay was inordinate and not adequately explained, and there was a public interest in finality in criminal proceedings.[4]

6 The applicant elected to renew his applications for an extension of time and for leave to appeal pursuant to s 315(2) of the CPA. We heard the applications on 24 August 2021. At the conclusion of the parties' submissions, we made the following orders:

1 The application for an extension of time within which to file a notice of application for leave to appeal against the conviction on charge 2 on indictment J10706691 is granted.

2 The application for leave to appeal against the conviction on charge 2 on indictment J10706691 is granted.

7 At the time we made the orders, we stated that we would publish our reasons at a later date. These are our reasons.

The evidence and judge's directions relating to charge 2

8 We gratefully adopt Niall JA's summary of the evidence at trial in respect of charge 2 and the judge's directions to the jury relating to it:

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

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

[AB]: 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?

[AB]: 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?

[AB]: He attempted to have sex with me.

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

[AB]: He attempted to put his penis in my bottom.

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

[AB]: It felt painful. So I asked him to stop.

Prosecutor: And did he?

[AB]: Yes.

...

In cross-examination, [AB] was taken to the incident, which the cross‑examiner referred to as the 'attempted anal penetration'. [AB] 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. [AB] agreed that it was the first and only time that the applicant had attempted to have anal penetrative sex with her.

In her charge to the jury the judge noted that there was no direct evidence from [AB] that she felt the applicant's penis enter her anus and that the prosecution were seeking to infer penetration from [AB'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 [AB].

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.

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.[5]

9 The proposed ground of appeal raises the issue whether the evidence set out above was capable of supporting the conviction for charge 2. In this context, the applicant acknowledges that the jury was entitled to accept AB's account beyond reasonable doubt. As Niall JA observed, the question is whether, even if AB'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.[6]

10 Two affidavits were filed in support of the application for an extension of time. The first affidavit was affirmed by the applicant's solicitor and the second affidavit was affirmed by counsel originally briefed on the appeal who prepared the applicant's written case, but who ultimately did not appear before us ('initial appeal counsel').

11 The solicitor's affidavit relevantly stated the following:

(a) On 9 August 2019, trial counsel advised in writing that there was merit in an appeal against conviction and sentence. Although the affidavit does not say so, Niall JA was informed that the advice identified a proposed ground of appeal relating to the conviction on charge 2.

(b) An application for funding was made to Victoria Legal Aid ('VLA'). At its request, further merits advice was provided to VLA on 27 August 2019.

(c) On 11 October 2019, VLA refused to grant funding.

(d) The applicant arranged for private funding to be provided to his solicitors on 25 November 2019.

12 Regrettably, the solicitor's affidavit is silent on what occurred between 25 November 2019 and the filing of the application for an extension of time on 4 August 2020.

13 The initial appeal counsel's affidavit relevantly stated the following:

(a) He was briefed on 25 November 2019. Upon reading the brief, he considered that it was reasonably arguable that charge 2 could not be proved beyond reasonable doubt.

(b) He did not prepare the application for leave to appeal and the written case in support in relation to charge 2 until shortly before they were filed in August 2020 because of the volume of other work and family circumstances.

(c) The applicant's solicitor 'contacted [him] regularly about the appeal, enquiring whether [he] required any further information or if [the solicitor] could be of any further assistance'.

(d) Responsibility for the delay after 25 November 2019 rested with him, rather than the applicant or his solicitors.

14 Before us, it was common ground that the principles governing an extension of time were accurately summarised by this Court in Madafferi v The Queen:

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.[7]

15 It was also common ground that, if this Court were to grant an extension of time and leave to appeal and the resultant appeal succeeded, the Court could set aside the conviction on charge 2 and enter a conviction for attempted incest pursuant to s 277(1)(c) of the CPA, without the need for a further trial. Further, it was common ground that it would be open for the Court to form the view that the total effective sentence imposed by the sentencing judge should not be disturbed.[8]

16 The applicant's appeal counsel submitted that the prospects of a successful appeal are very high and that, accordingly, this Court should grant the applicant an extension of time so that an unsafe conviction against him could be removed. Counsel contended that, notwithstanding the delay, there is a great public interest in only having proper and safe verdicts recognised by the criminal justice system. According to him, '[t]o do otherwise, is to undermine public confidence in the criminal justice system'.

17 Senior counsel for the Crown made two significant concessions. First, she conceded that the proposed ground of appeal was reasonably arguable. Secondly, she conceded that, if the Court granted an extension of time, then on the basis of the first concession, the Court should also grant leave to appeal. However, she submitted that the Court should not grant an extension of time because there is no satisfactory explanation for the 'egregious' delay and because, whilst the proposed ground was reasonably arguable, it did not have strong prospects of success.

18 Senior counsel for the Crown described the explanation for the delay as 'woeful'. She contended that, whilst the applicant took steps to place his solicitors in funds on 25 November 2019, there was no evidence that he took any steps after that time to press his solicitors and initial appeal counsel to finalise the appeal documents. She argued that the applicant must have been advised about the 28‑day time limit and there was no reason why another member of counsel could not have been briefed to replace the initial appeal counsel.

19 Senior counsel for the Crown submitted that it is in the public interest that there be finality in criminal proceedings. She contended that finality was important in the present case, notwithstanding that no new trial would be required if an appeal were successful and neither AB nor any other witness would need to give evidence again. That was said to be because continuation of appeal processes after the expiration of the 28-day time limit itself could be a form of re-traumatisation for victims. She also informed the Court that, in the present case, certain ancillary proceedings are on hold pending the outcome of the proposed appeal.

20 In relation to the prospects of success of an appeal against conviction in respect of charge 2, senior counsel for the Crown argued that it was open to the jury to infer that the reason for AB experiencing pain was penetration of her anus by the applicant's penis. Senior counsel did not accept that, on the basis of AB's evidence, the prosecution could not have excluded a reasonable possibility that there was another explanation for AB's pain.

21 Four key considerations inform the question whether an extension of time should be granted in the present case. They are the length and explanation for the applicant's delay, the prospects of success of the proposed ground of appeal, the public interest in finality in criminal proceedings and the public interest in an accused not being subject to a wrongful conviction.

22 We agree with the Crown that the delay is inordinate and that the applicant's lawyers have failed to satisfactorily account for it. The applicant's initial appeal counsel should have returned the brief immediately upon realising that he could not prepare the appeal documents in a timely manner. And the applicant's solicitors should have pressed initial appeal counsel to prepare the appeal documents in a timely manner and to withdraw the brief and engage new counsel as soon as it was apparent that initial appeal counsel could not do so.

23 The applicant did not swear an affidavit in support of his application for an extension of time. Based upon his solicitor's affidavit, following VLA's rejection of funding on 11 October 2019, the applicant took steps to arrange private funding and placed his solicitors in funds on 25 November 2019. It is true, as submitted by the Crown, that it is not known what steps, if any, the applicant took after 25 November 2019 to ensure that the appeal documents were filed as soon as possible after that date. However, it would be a fair inference that the applicant relied upon his lawyers to protect his interests by preparing the appeal documents on a timely basis as soon as they were in funds. Accordingly, we are satisfied that the applicant's lawyers, rather than the applicant personally, are overwhelmingly responsible for the unacceptable delay in the present case.

24 In relation to the prospects of success of the proposed ground of appeal, we are of the view that senior counsel for the Crown properly conceded that the proposed ground is reasonably arguable.[9]

25 We agree that there is an important public interest in finality in criminal proceedings. We accept that continuation of proceedings after the conviction and sentence of an accused can prolong the trauma of victims, and that retrials can cause stress and inconvenience to victims and witnesses. However, this public interest has less force in the present case where it is common ground that, if the applicant is successful in his proposed appeal, a new trial would not be required and therefore neither AB nor the other witnesses would need to give evidence again.

26 The fundamental tenet of our system of criminal justice is that no citizen should be convicted of an offence unless the evidence is capable of establishing beyond reasonable doubt that he or she committed the offence. An important public interest springs from that fundamental tenet, namely, that an accused who is convicted of an offence which cannot be supported by the evidence is entitled to apply to this Court for an order expunging the wrongful conviction.

27 We formed the view that, in the unusual circumstances of the present case, it was appropriate to grant an extension of time having regard to the public interest to which we have last referred and the following matters:

(a) Although the delay is inordinate, responsibility for it lies with the applicant's lawyers rather than the applicant personally.

(b) The Crown has not been prejudiced by the delay.

(c) The Crown has conceded that the proposed ground of appeal is reasonably arguable.

(d) Success by the applicant in the proposed appeal will not result in a new trial and therefore neither AB nor any other witness will need to give evidence again.

(e) Even though success by the applicant in the proposed appeal may not reduce the gravity of his overall offending or his total effective sentence, nevertheless he should have the opportunity to seek expungement of a conviction in respect of which there is a reasonable argument that it is wrongful.

28 In our opinion, senior counsel for the Crown properly conceded that, if this Court decides to grant an extension of time, it should also grant leave to appeal. That must be so once it is accepted that the proposed ground of appeal is reasonably arguable.

29 It is for the above reasons that we made the orders set out at [6] above.

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

[2] DPP v Bolton (a pseudonym) [2019] VCC 1247.

[3] Criminal Procedure Act 2009 s 276(1)(a).

[4] Bolton (a pseudonym) v The Queen [2021] VSCA 117, [15], [21], [35], [37], [40] ('Niall JA's reasons').

[7] [2017] VSCA 302, [11] (citations omitted).

[8] The applicant's appeal counsel informed the Court that the applicant reserved the right to make submissions on sentence in the event that a conviction for attempted incest is substituted for the conviction for incest on charge 2.

[9] Cf Scannell v The Queen [2014] VSCA 330.