Criminal law - Procedure - Application for an extension of time to appeal against conviction - Importation of heroin - Conviction recorded in 1992 - Third application for an extension - Second application dismissed in 1995 as incompetent - Criminal Appeals Act 2004 (WA) inapplicable to the third application - Third application incompetent under the Criminal Code (WA) - No power to re-open and re-consider formal perfected criminal orders made by the Court of Criminal Appeal - No explanation for the delay of about 15 years since the second application was dismissed

First Respondent : Director of Public Prosecutions (Cth)

Second Respondent : Director of Public Prosecutions (WA)

Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218

Matta v The Queen (1995) 126 FLR 127

Napier v The State of Western Australia [2008] WASCA 106; (2008) 36 WAR 543

R v O'Keefe [1979] VicRp 1; [1979] VR 1

R v Parenzee [2008] SASC 245; (2008) 101 SASR 469

The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116

2 BUSS JA: On 16 September 1992, the appellant was convicted, after a trial in the District Court before Viol DCJ and a jury, of three offences.

3 The first offence was contravening s 233B(1)(ca) of the Customs Act 1901 (Cth) by attempting to obtain possession, without reasonable excuse, of a trafficable quantity of heroin reasonably suspected of having been imported into Australia. The second was contravening s 233B(1)(ca) of the Customs Act by having in his possession, without reasonable excuse, a trafficable quantity of heroin reasonably suspected of having been imported into Australia. The third was contravening s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) by procuring Kenneth Joseph Marriott (who was tried with the appellant in respect of two separate offences) to have in his possession a quantity of heroin with intent to supply it to another.

4 On 20 September 2010, more than 18 years after conviction, the appellant filed an application for an extension of time to appeal against conviction. This is the third application he has made to extend time.

The appellant's previous applications to extend time

5 On 17 February 1995, about 29 months after conviction, the appellant filed an application (being the first application) for an extension of time to appeal. The proposed grounds of appeal were:

1. The trial Judge erred in law, by directing the jury that he would accept a majority verdict, contrary to s 80 of the Commonwealth Constitution, and thereby caused a miscarriage of justice.
2. The trial Judge's misdirection as to majority verdict, in all the circumstances, caused the jury to misunderstand the direction.
3. By reason of the trial Judge's misdirection the true nature of the verdict is unknown.

6 On 4 May 1995, the Court of Criminal Appeal heard the application. On 19 May 1995, the court refused the application to extend time on the basis that the proposed grounds of appeal were without merit. On 23 August 1995, the High Court dismissed the appellant's application for special leave to appeal.

7 On 10 July 1995, the appellant filed another application (being the second application) for an extension of time to appeal. The proposed grounds of appeal were that the Australian Federal Police controlled the

importation of the heroin the subject of the offences involving contravention of s 233B(1)(ca) of the Customs Act and in consequence the trial judge should have exercised his discretion to exclude evidence of the appellant's guilt.

8 On 15 November 1995, the Court of Criminal Appeal dismissed the further application as being incompetent. The court held that it was not open to the appellant to make another application to extend time on different grounds. See Matta v The Queen (1995) 126 FLR 127 (Matta [No 2]).

9 The proposed grounds of appeal relied on by the appellant in the current (third) application for an extension of time to appeal, without the supporting particulars, are:

1. The Appellant appeals against sentence [sic: conviction] on the ground that proceedings against him should have been stayed and the evidence of the Appellant's guilt should have been excluded on discretionary grounds by reason of the fact that heroin had been illegally imported into Australia with the active involvement of an officer(s) or agent(s) of the Australian Federal Police, so that it could be offered for sale to the Appellant.
2. It is submitted on behalf of the Appellant that the Court of Appeal is permitted to hear the Appellant's appeal pursuant to the provisions of the Criminal Appeals Act 2004 (WA). The Court of Appeal's jurisdiction to hear an appeal against conviction is conferred by Section 27 of the Criminal Appeals Act 2004 (WA) and it is submitted on behalf of the Appellant that this Section creates the right of appeal for a convicted person, but by doing so it necessarily confers a jurisdiction on the Court of Appeal to hear the appeal. The Appellant has not previously lodged an appeal pursuant to the Criminal Appeals Act 2004 (WA).

10 The current (third) application should be dismissed. I am of that opinion for these reasons.

11 First, the Criminal Appeals Act 2004 (WA) does not apply to this case. The appellant's rights in relation to an appeal against conviction are those given to him by the Criminal Code (WA). This was the applicable legislation when the appellant was convicted and, also, when he made his first and second applications for an extension of time. The right of appeal given by the Criminal Appeals Act to an offender who has been convicted is a substantive right. The Act does not operate retrospectively. See Napier v The State of Western Australia [2008] WASCA 106; (2008) 36 WAR 543 [19] (Steytler P, McLure & Buss JJA agreeing).

12 Secondly, the current (third) application for an extension of time to appeal is incompetent under the Criminal Code. The decision in Matta [No 2] is an insuperable obstacle.

13 Thirdly, this court does not have any express or implied general power under the Supreme Court Act 1935 (WA), the Criminal Appeals Act, the Rules of Court or any other statute to which we were referred by counsel for the appellant, or any general inherent power, to re-open and re-consider formal perfected criminal orders made by the Court of Criminal Appeal; in particular, the formal perfected orders made by that court in Matta [No 2]. See Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218; The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116.

14 Fourthly, 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. The purpose of the court's power to extend time to appeal is to enable justice to be achieved in the particular case.

15 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 [55], there is a definite public interest in compliance with the time limit for appealing against a conviction.

16 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, namely: the nature and extent of the delay; the reasons for the delay; the proposed grounds of appeal and their merit; the prejudice to the applicant if an extension of time is not granted; and 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.

17 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 R v O'Keefe [1979] VicRp 1; [1979] VR 1, 5.

18 In the present case, the appellant's current (third) application to extend time to appeal is supported by an affidavit sworn by his solicitor, Ms AS Rogers. Ms Rogers deposes, relevantly, that the appellant wishes to travel to America and that his drug convictions have prevented him from doing so for many years [16]. The affidavit does not give any explanation for the delay of about 15 years since the court decided Matta [No 2]. In the circumstances, even if this court had power to grant an extension of time under the Criminal Appeals Act 2004 or had power to re-open and re-consider the formal perfected orders made in the appellant's previous applications to extend time to appeal, there is no proper basis in the evidence for the exercise in the appellant's favour of the court's discretion.

19 The current (third) application for an extension of time to appeal should be dismissed.

20 MAZZA J: I agree with the reasons of the Hon Justice Buss.