DPP v Craib & Coad [2001] VSCA 92

Court of Appeal (Vic)|2001-06-15|Before: PHILLIPS, BATT and CHERNOV, JJ.A.

Criminal law - Procedure - Director's appeal - Occupational health and safety offences - Fines imposed - Failure to serve notice of appeal within one month - Whether reasonably satisfactory explanation for that failure - Mistaken use of old addresses - No prejudice claimed by intended respondents - Leave to serve out of time granted - Crimes Act 1958 s.567A(3).

The Director of Public Prosecutions would now appeal on grounds including that the sentences imposed were, in each case, manifestly inadequate. The company was duly served within one month as required by s.567A(1), but for reasons which will be recounted shortly, efforts to serve the two individuals met with no success. Each of the present applications is made by notice filed in this Court on 19 April 2001. The notice is headed "Application for an extension of time within which to serve a notice of appeal". That may be the effect of the application but strictly speaking an application under s.567A(3) is for leave of the Court of Appeal to serve notice of appeal against sentence more than one month after the passing of the sentence: D.P.P. v. Aarons[1]. The principles governing such an application are to be found in Aarons and in R. v. O'Keefe[2]. In a different but comparable (though civil) context, the relevant considerations have been identified briefly but comprehensively as the length of the delay, the reasons for the delay, whether there is an arguable case on the merits and the degree of prejudice to the other side: see Palata Investments Ltd. v. Burt & Sinfield Ltd[3] and Jackamarra v. Krakouer[4].

It is a significant thing to allow the time for appeal to expire without serving notice of appeal, but especially when the matter is criminal . As the Full Court said in O'Keefe:-

"Where the time for giving notice of appeal has elapsed a respondent, the person sentenced, has an interest in the order or judgment of the Court which the applicant seeks to impugn and this interest ought not to be disturbed unless there is good reason for doing so. See Youngman v. Melbourne Storage Co. (1885) 7 ALT 53 at p.54 per Higinbotham, J."

In R. v. John Edward Darby, Gowans, J. made much the same point, saying (as recorded in O'Keefe at 5) that the statutory prescription of a time limit for giving notice "is intended to secure finality and compliance is intended to be required in the ordinary case". In R. v. John David Douglas (Court of Criminal Appeal, 18 August 1988, unreported), Southwell, J., in agreeing that the application for leave to appeal out of time under s.567A(3) should be dismissed, said:-

"I would merely add that, in my view, it is particularly important in an application by the Director of Public Prosecutions that the notice of appeal be served in time because the person who is sentenced may well have been told, and may, for all this Court knows, have been told in this case, that he was fortunate with the sentence he received and that he might, within the period of one month, be served with notice of an appeal by the Director of Public Prosecutions. Once that time has expired there seems to me to be some element of oppression in his being told that, notwithstanding the effluxion of time, an appeal might still be brought."

It is perhaps relevant, however, that the very section which limits the time for appeal does so by allowing an appeal out of time by leave; in other words, the restriction in s.567A(3) is itself a qualified one. Be that as it may, leave must always be a matter for the discretion of the court and it is up to the applicant to put material before the court to persuade it to exercise the discretion in its favour.

It is unnecessary for the moment to canvass in any detail the principles governing such applications as these; for the argument before us focussed on one aspect only. Although usually made ex parte, in this instance it appears that staff in the Registrar's office notified Mr. Craib and Mr. Coad of the applications when they were filed and, in the result, each was represented by counsel so that we have had the benefit of argument on his behalf. The respondents both oppose the present applications. The ground of that opposition is not undue prejudice, but the absence, it is said, of any satisfactory explanation for the failure to effect service in time. Obviously the reason for the delay will ordinarily be a pertinent consideration: it is often said that leave to appeal out of time, or more usually an extension of time within which to commence an appeal, depends upon the applicant's putting forward some "reasonably satisfactory account of the failure to comply with the statutory requirement" for service: for example O'Keefe[5]. The question debated before us was whether the explanation offered by the applicant in this instance could be regarded by the Court as satisfactory.

I turn then to the material filed in support of these applications. Certainly voluminous, it is unsatisfactory in more than one respect, as we pointed out in the course of the argument. Indeed, the affidavits seem to have been prepared somewhat carelessly. They are needlessly repetitive and contain a number of errors. They are unduly long and complicated and in part they appear to deal with what is not relevant at the expense of what is. That is particularly so over the verification of documents sent to process servers. Nor is there anything specific in the affidavits filed in support of these applications to suggest how long might be needed to effect service on the respondents; yet, as O'Keefe demonstrates, if such an application is granted, a time is specified for service; it is not left open-ended. Perhaps this last has been overtaken by events; for we were told from the Bar table that arrangements are now in place for service to be accepted by the solicitors for Mr. Craib and Mr. Coad, if these applications are granted.

The affidavits in support were of two kinds: those dealing with service from the point of view of the Director and the Office of Public Prosecutions and those dealing with service from the point of view of the Victorian WorkCover Authority, the informant when the charges were first filed. As will be seen, the failure to effect service on Mr. Craib and Mr. Coad appears largely to have come about because there were two organisations involved, not one.

I deal first with the position of the Director and the Office of Public Prosecutions. Here the principal affidavit was sworn on 7 May 2001 by Brett Lynton Sonnet, a solicitor employed in the Office of Public Prosecutions. According to the deponent, within days of the sentences being passed, the prosecutor on the plea (a senior Crown prosecutor and one of her Majesty's counsel) furnished a memorandum of advice to the Director of Public Prosecutions on the merits of an appeal against sentence under s.567A. That memorandum was furnished to the Director on 14 March and it was noted in that memorandum that the views of the Chief Crown Prosecutor and of another senior Crown prosecutor had been sought. All agreed, the deponent said, that an appeal was warranted in the circumstances. On 16 March a request was therefore made for a transcript of the plea and sentence.

On 23 March, the Office of Public Prosecutions received correspondence from the Victorian WorkCover Authority requesting consideration of an appeal against the sentences imposed on the company employer and the two employees. Mr. Sonnet avers that on that day he was requested to provide a memorandum of advice in relation to the merits of a possible appeal, and he did so. His advice was that an appeal against all three sentences was warranted.

Again according to Mr. Sonnet, although the Director was promptly kept informed of these advices it is the ordinary practice of the Office of Public Prosecutions not to consider the institution of an appeal against sentence until a transcript of the plea and sentence has been received. Despite requests, such a transcript was not forthcoming, the Office being told that the transcript remained unrevised. On 4 April, Mr. Sonnet advised the Director that the matter had to be considered notwithstanding the absence of transcript as the time for service was due to expire, on his reckoning, on 8 April. Reluctantly (says the deponent) the Director agreed; he considered the notices of appeal and signed each and on 5 April all three signed notices of appeal were transferred to the Victorian WorkCover Authority for service. That Authority was confident, Mr. Sonnet avers, that service would be effected before the expiry date.

On 9 April, the Victorian WorkCover Authority advised Mr. Sonnet that while service had been effected on the company, service had not been effected on Craib or Coad due to unexpected difficulties. On 12 April, the Office of Public Prosecutions received a transcript of the plea and sentence, by now revised, and on 19 April, the present applications were filed, seeking leave to commence the appeals against Craib and Coad out of time.

I turn now to the position of the Victorian WorkCover Authority. Here the principal affidavit was sworn on 8 May 2001 by Niki Andriopoulos, a senior solicitor in the employ of the Authority, and a second affidavit was sworn by her on 9 May. In the first, the deponent swears that "on or about 4 April 2001", she was advised by the Director of Public Prosecutions that notices of appeal were to be served upon Drybulk Pty. Ltd. and upon Messrs. Craib and Coad "as a matter of urgency". On 5 April, on her return from the Magistrates' Court she collected from the Director an envelope containing the notices of appeal and a letter from Mr. Sonnet requesting personal service within one month of the date of sentence, 9 March. This letter (Exhibit NA-1 to the affidavit of 9 May) gave no addresses for service. On the same day, Ms Andriopoulos sent the notices of appeal, by courier, to Network Process Servers under cover of a letter (Exhibit NA-1 to the affidavit of 8 May) requesting urgent personal service "on or before 8 April 2001". By telephone she instructed the process servers to send the notice of appeal for Drybulk Pty. Ltd. by express post to their Sydney agent.

As was to be expected, the letter of instructions from the Authority to Network Process Servers did set out what were said to be the relevant addresses for service. Thus, the notice of appeal for Drybulk Pty. Ltd. was to be served at the registered office of the company at Beecroft in New South Wales, an address which was obtained (says Ms. Andriopoulos in her affidavit of 8 May) from the data base of the Australian Securities and Investments Commission. That was the address (she adds) at which the original charge and summons, filed at the Melbourne Magistrates' Court on 29 May 2000, had been served: it was also the address at which, on 8 June 2000, the hand-up brief in relation to the committal proceedings had been served. On 6 April Network Process Servers advised that the notice of appeal for Drybulk Pty. Ltd. had been successfully served.

Thus far there was no difficulty. However, the letter of 5 April to Network Process Servers gave as the address at which Bruce Scott Craib might be served an address in Hoppers Crossing and, in the alternative, an address in Brighton. According to the affidavit, the Brighton address was that at which the charge and summons which had been filed in the Magistrates' Court on 29 May 2000 had been served, and on 10 June 2000 the hand-up brief in relation to the committal proceedings. It does not appear why the Hoppers Crossing address was mentioned in the letter of 5 April 2001; it was no more than an address at which service on an earlier occasion had been attempted, without success: see Exhibit NA-3 to the affidavit of 8 May. However that may be, on 6 April the process server apparently went directly to the Brighton address where he was unable to locate Mr. Craib. His report (Exhibit NA-8 to the affidavit of 8 May) describes his speaking with one "Lisa" who, claiming to be the tenant, denied all knowledge of anyone called Craib, although a neighbour told him (the process server) that "Lisa" was the owner (not the tenant) and that she was Craib's "girlfriend". On 6 April, Ms Andriopoulos deposes, she enlisted the aid of a constable at the Brighton police station to serve Mr. Craib "at the Brighton address or at any other address she [the constable] was able to serve him". The constable later submitted an affidavit (Exhibit NA-9) describing a fruitless attempt by her at service at the Brighton address.

Mr. Craib filed an affidavit in answer, sworn on 10 May 2001. In it he swore to having left the Hoppers Crossing address in May 1998 (some months before the events giving rise to these prosecutions) and the Brighton address, where he lived with his partner, in or about August 2000. The Brighton property is still owned, however, by the partner, it being now rented out. On or about 6 April, says Mr. Craib, he was told of the service of the notice of appeal on the company, his employer Drybulk Pty. Ltd., and a copy of that notice was sent to him from the company. It was later in April that he was contacted in relation to service but again nothing more happened. He continues, he says, to be employed as previously.

As for Neil Leslie Coad, the letter of 5 April to Network Process Servers gave his address as Drybulk Pty. Ltd., Stall 5, Victoria Drive, Footscray. On 9 April, Network Process Servers informed Ms Andriopoulos that service had not been effected upon Mr. Coad. The report of the process server (Exhibit NA-10 to the affidavit of 8 May) was as follows :-

"Service was attempted at the instructed address of Shed 5, Victoria Drive, Footscray, which is a huge storage shed, but there was no-one present. There was a sign on the door, saying `if closed contact Neil Coad, on 0418 595 098'. The server rang the respondent, who stated he was working at a `closed site' at Port Melbourne, and would not be available all that day. 6/4/2001 this report was given to Niki Andriopoulos, who requested the server contact the respondent again and try to arrange urgent service that day. The server rang the respondent again at 11.30 a.m. but he still stated he had been at this site since 5/4/2001 and would not leave before midnight on 6/4/2001 at the earliest. The respondent told the server he was operating machinery and could not leave the site, nor would he tell the server where the site was. The server then asked if the respondent was avoiding him, but the line dropped out. The server rang back, and the respondent claimed he was not avoiding, but it was not possible for a meeting to be arranged for 6/4/2001. The server then asked when they could meet on 7/4/2001, but the respondent said he would have to speak to the server later in the day. The server left his name and mobile number. At 7.30 p.m. the server again rang the respondents mobile number, but this was diverted to a messagebank. The server left a message requesting the respondent contact him, but there was no response. On 7/4/2001 as the server had not received any response from the respondent, he rang again at 12.00 noon, and again left a message on his messagebank. A further call was made at 6.00 p.m. but still the number rang into a messagebank, and messages left received no response."

Mr Coad filed an affidavit in answer, sworn on 10 May 2001. In that affidavit he declares that on Friday 6 April he had indeed been working on the wharves, that it was a closed site as he had said to the caller on his mobile phone, and that he gave the caller the estimated time of finishing the job as midnight. He denies not giving the address and denies that he was attempting to avoid the caller. As it turned out, he finished the shift "on the Friday night" and he "was not required to work on that weekend". Having left the mobile handset "at the office" on the Friday, he had not had it with him during the weekend. Further, he says, when he discovered on Monday 9 April the calls that had been made to him in the meantime, he attempted to return the calls but without success. He did not pursue the matter any further because he "was back in the office at 5 Victoria Drive in Footscray and I was in the office all of that week". The office, it appears, is that of Drybulk.

It is plain from all this, I think, that while the attempts to serve Mr. Craib may have failed because of the address given to the process servers, the attempts to contact Mr. Coad failed, not because the address was wrong, but because he was at the time working on a closed site. The process servers were obviously given only Mr. Coad's work address; as he says in a second affidavit (sworn on 11 May 2001) he was at home on the weekend of 7 and 8 April, but no attempt was made to serve him there. The difficulty facing the Director as applicant on these applications is that, as his counsel frankly acknowledged, the current residential addresses of both Coad and Craib were known to the Director, or at least to staff in the Office of Public Prosecutions; it was accepted in argument that these addresses had been given by the two men at their committal hearing and upon their subsequent arraignment in the County Court[6]. Indeed so much was asserted by Mr. Coad in a second affidavit (sworn on 11 May) and by Mr. Craib in his affidavit of 10 May. The mistake made by the Office of Public Prosecutions was not to link these addresses to the instructions for service which were given to the Victorian WorkCover Authority.

Unfortunately the Authority made a corresponding mistake. As was pointed out in argument, as informant the Victorian WorkCover Authority would have been represented at the committal and presumably it was present again, through employees, at the time of the arraignment. (Mr Craib swears that Ms Andriopoulos herself was present when he pleaded guilty.) Thus, the Authority too had - or should have had - a note of the current addresses of the present respondents. Instead of passing these addresses to the process servers, the Authority relied upon the addresses that had been successfully used in the past, but, in respect of Craib, an address at which he was no longer living or to be found at all, and, in respect of Coad, an address at which he could be found but only when working there. It may well be, however, that this was simply the product of rushing. By 5 April there was little time left for service, the request from the prosecuting office was to effect service "as a matter of urgency" and in the rush to comply it would not be surprising if the Authority simply seised upon, and used uncritically, the old addresses. That, I imagine, is what happened.

On this analysis the blame appears to lie both with the Office of Public Prosecutions, for failing to send out the notices of appeal for service expressly at the current residential addresses, and with the Authority, for the unthinking use of addresses that were scarcely helpful; one at least was simply out of date. But in both offices the mistakes that were made probably came about through pressure of time. Certainly, once it was decided to proceed with the appeals, considerable efforts appear to have been made to effect service within the limited time still available and if it is difficult to see now the justification for waiting until 4 or 5 April before turning to service, in part at least that depends upon hindsight. I find it difficult to criticise the Director for waiting upon the transcript before instituting the appeals; it is obviously undesirable for an appeal in a criminal matter to be commenced only to have it abandoned if that appears proper when the transcript becomes available[7]. It may perhaps be said that in this instance, where there was significant advice to hand, early in the piece, that appeals were warranted, further time ought not to have been lost in fruitless waiting, particularly when in the end the notices of appeal were signed without the benefit of the transcript; but even at that late stage, it must be remembered, it was still not anticipated (nor did the Director or the Office of Public Prosecutions have reason to anticipate) that there would be difficulty in serving all three respondents. As it turned out there was sufficient time to serve the company; to that extent expectations were met, although, again, perhaps more could have been done in the meantime to verify the addresses that were to be used for service. Both men appear to have continued in employment as before, and so service through the company itself might have succeeded (although such an attempt would itself pre-suppose that someone foresaw the possibility of difficulty in effecting service otherwise). Moreover, Mr. Craib in his affidavit said that there was an outstanding matter of compensation under s.86 of the Sentencing Act 1991 which was not yet determined; it had been set down for hearing in June 2001, with the result that the solicitors acting for him on the prosecution were continuing to act.

On these applications Mr. Coghlan told us that much had been learnt by the prosecuting office from this experience, but the question remains for us whether, in the exercise of discretion, service should now be permitted out of time. Criticism can of course be made of those responsible in the one office or the other for failing to effect service within time, but at least the failure to serve in time has been explained to the extent that we now know how it came about. Whether that explanation is "reasonably satisfactory" is of course a different matter; much depends upon what is meant by "satisfactory". Deliberate inaction, if inexcusable, would obviously be not a satisfactory explanation for delay; but unintended default is different, even delay occasioned by a blunder or a mistake[8]. If the failure to serve within time must be shown by the applicant to be altogether excusable, I doubt that that has been achieved in this instance. But in the end I need not pursue that to a conclusion because, when all is said and done, what has to be decided is not just the issue of delay but the matter of leave. That is to be decided in all of the circumstances, not just one of them, and the discretion cannot be curtailed by undue emphasis on one consideration or another. No other case can dictate the result in this: each case must depend upon its own facts and a fair consideration of all the circumstances when taken in conjunction[9].

Although arising in quite a different context, I think that what was said in Dix v. Crimes Compensation Tribunal[10] applies here. That was a civil appeal over an application for an extension of time for review, in which the extension had been refused below because the applicant had not given, it was claimed, a satisfactory explanation for the delay. In Hunter Valley Developments v. Cohen[11] Wilcox, J. had suggested that such an explanation was a precondition to the granting of an extension of time, and in rejecting that Brooking, J. said[12]:-

"I entertain no doubt that it is not a pre-condition to the grant of an extension of time under s.31(2) of the Administrative Appeals Tribunal Act 1984 that the applicant show an `acceptable explanation of the delay'. The power given by s.31(2) is given in unrestricted terms and it is not for the court to impose an arbitrary limitation of the power not expressed in the words of the statute: FAI General Insurance Co. Ltd. v. Southern Cross Exploration NL [1988] HCA 13; (1987) 165 C.L.R. 268, at pp.283-4, per Wilson J. Instructive decisions for present purposes are Evans v. Bartlam [1937] A.C. 473, especially at pp.479-80, per Lord Atkin, at p.481 per Lord Russell of Killowen and, at pp.488-9, per Lord Wright, and Kostakanellis v. Allen [1974] VicRp 71; [1974] V.R. 596, both dealing with the suggestion that the discretion to set aside a default judgment or a judgment entered where the defendant has not appeared to show cause cannot be successfully invoked unless the applicant gives a satisfactory explanation for his default or non-appearance. The distinction is there drawn between the recognition of matters relevant to the exercise of the discretion and the elevation of some matter into a condition precedent to the existence or exercise of the discretion: see in particular the observations of Lord Russell, cited at pp.603-4, in Kostokanellis v. Allen and the reference, at pp.605-6, in the latter case to the adoption of a formula created by erecting what are merely relevant factors into arbitrary principles so as to allow the automatic production of a solution. For a very recent illustration of the refusal to impose restrictions on an unfettered discretion conferred by Parliament, see the decision of the Full Court in Leighton Contractors Pty. Ltd. v. Kilpatrick Green Pty. Ltd. [1992] VicRp 83; [1992] 2 V.R. 505." [Emphasis added]

The caution against erecting what is merely one factor into an arbitrary determinant, given in Shepperdson v. Lewis[13], adopted in Kostokanellis[14] and emphasised again in Dix, is particularly apposite.

That is not to say that an applicant's failure to provide to the Court a satisfactory explanation for not effecting service in time might not in some cases be determinative; it may, but that will depend upon the weight attaching to all the other circumstances of the case[15]. Here, there were considerable attempts at service within time and they failed through a concatenation of events which were driven, it seems to me, by the urgency involved. Undoubtedly mistakes were made (and perhaps in part they were blameworthy, at least in hindsight) but the attempts to serve were still bona fide. There was no wilful disregard of the statutory requirements; as counsel put it, the Director was seeking leave under s.567A(3) not because he had not attempted to serve in time but because the attempt that was made came to naught because of mistake. The mistake that was made was probably the result of leaving too little time to correct the addresses that were used uncritically, which in turn was the result of waiting too long for the transcript before the Director would sign the notices of appeal, but there was reason for that (whether or not sufficient in the light of hindsight) and it was at a time when no difficulty was anticipated in effecting service. It may be that, looking back, the failure to serve within time cannot be altogether excused, but if by that is meant that the explanation is not "reasonably satisfactory" with the result that leave must be refused, in my opinion that is to distort the authorities.

Moreover, although it is not to be wholly subsumed under the heading of delay generally, the failure to serve the notices of appeal within the one month allowed by s.567A without leave is none the less one aspect of delay[16], and in O'Keefe (at 5) the significance of delay was described in this way:-

"An applicant who has been dilatory or who has acted in such a way as to indicate that he does not intend to appeal has small if any claim to the exercise of the discretion of the Court in his favour. On the other hand, if the applicant has acted promptly, his case will be considered very differently. Where there has been a long delay the practice of the Court has been not to grant the extension sought unless it is clear that the decision is attended with such doubt as to make it probable that the appeal will succeed. But where, as here, the application is made promptly in circumstances where the notice of appeal was not served within the time prescribed only because the respondent could not at the relevant time be found, we do not think that the extension sought ought to be denied unless this Court is of opinion that the decision of the learned sentencing judge is correct beyond any argument."

That puts delay in context and when considered in that light I think that the circumstances attending the failure to serve within time in this instance, albeit that they included mistake, should not be regarded as requiring that leave to serve out of time be refused.

There are a number of considerations to be weighed in conjunction with the explanation offered for the failure to serve in time. First and foremost, to the extent that the immediate cause of that failure was the overlooking of the current residential addresses, that was simple human error, even if it was also a departure from the standard that one might have expected to find within the office of a professional. Secondly, little time was allowed to elapse once the error was discovered; the applications for leave were mounted promptly. Adventitiously perhaps but none the less helpfully, the respondents were notified of the applications under s.567A(3) and have made submissions, and neither relies upon any prejudice save that which is inevitable if the penalties imposed on 9 March are to be reconsidered on appeal. Moreover while the two individuals were not served, the company (their current employer and co-offender) was served with the notice of appeal and, though each has filed an affidavit, neither man has claimed expressly that he was unaware that efforts were being made to serve him; nor has it been said on his behalf that he was misled into positively concluding that no appeal was to be instituted against his sentence. After all before the time expired contact was made at least with Mr. Coad himself and, in the case of Mr. Craib, with "Lisa" who may well be his partner. Importantly, too, we are not here dealing with gaol sentences but with fines - and fines in somewhat special circumstances. There is a significant public interest, I think, in having an appellate court consider the imposition of these fines in the context of the statute by which these offences were created. The underlying events are particularly distressing, involving as they do the death of one young man and the serious injury of another, and the facts are such as obviously give rise to peculiar problems of sentencing. In other words, I think that this is an important case for both the prosecution and the defence.

Briefly, the victims of the relevant incident were two 18 year olds who were employed at the time by a company whose business it was to supply contract labour. On the day in question the two young men were driven to a shed leased by Drybulk Pty. Ltd. from the Melbourne Ports Corporation. The shed was used for the storage of bulk grains and other dry goods, including fish meal, which had to be heaped against a wall in order that a front loader could scoop it up for further handling. To provide a solid base against which the fishmeal could be piled, prefabricated concrete panels were installed around the inside perimeter of the shed, some of them apparently free-standing. The two youths were to sweep up the fishmeal that could not be picked up by the front-end loader and put it into piles to facilitate further loading. For this they were being paid $10 an hour.

The two were working in front of a five and a half tonne concrete panel which, if it toppled, would either kill or seriously injure them. They had limited work experience, they wore no protective clothing and were given minimal instruction. At about 2.45 p.m. it became apparent that one of the concrete panels that was standing upright was unstable. It was decided that a front-end loader would support the panel while the two young men shovelled and swept the fishmeal away. Once the front-end loader had seemed to secure the panel, the driver moved the machine away, jumped down and began to shovel fishmeal himself. Not long afterwards, for some unknown reason the pre-cast concrete panel fell, killing one of the two victims and trapping the other under it by the lower part of his body, causing him serious injury. The front-end loader driver was luckier, for he jumped clear or else he too would have been killed or seriously injured.

Those being the events which led to the prosecutions in question, it is apparent that difficult questions of sentencing arise, the more particularly as the Act itself under which the offences are constituted lays down certain considerations which affect the fines to be imposed. It cannot be said in my opinion that these appeals are without merit, although by the same token I do not mean thereby that they must succeed. They are difficult appeals on more than one score. Nor, of course, do I overlook that these are Crown appeals which, it is sometimes said, should be rare and exceptional and where, as mentioned earlier, Southwell, J. thought that in certain circumstances to grant leave to appeal out of time might be oppressive. But the efforts to serve the respondents were real, and, though not without flaws, I think that in all of the circumstances, including those earlier mentioned, justice to both sides requires that leave to appeal under s.567A(3) should be given as sought.

For these reasons I would grant the applications and give leave to serve within 7 days.

The facts appear in the judgment of Phillips, J.A.

The decision whether to grant leave to the Director of Public Prosecutions under s.567A(3) of the Crimes Act 1958 to give a notice of appeal more than one month after the passing of sentence is a discretionary one. Whilst rigid restrictions cannot be imposed on the exercise of discretion, in general the Court will require special and substantial reasons for granting leave and a reasonably satisfactory account of the failure to comply with the statutory requirement "needs to be forthcoming".[17] In Bishop v. The Queen[18] Deane, J. (with whom Bowen, C.J. agreed and Davies, J. substantially agreed, though with a qualification) said in a passage cited since:

"In the special circumstances of an appeal against sentence, it would, in my view, be wrong and unjust after that period had expired without a notice of appeal being served to accede to an application by the Crown to extend the period of time in which service could properly be effected unless there were evidence disclosing an acceptable explanation of the failure to serve within time ...".

Similarly, in Morres v. Papuan Rubber and Trading Co. Ltd.[19], a civil case concerning relief from default in complying with the rules as to lodging appeals, Cullen, C.J. said[20]:

"[The applicant] has to satisfy the Court that justice requires that that default of his should be overlooked, and he must satisfy the Court that there is some reasonable kind of explanation or excuse for his neglect of the rules."

Although one at least of the statements which I have cited is expressed as a binding rule, the truth of the matter is that, since a discretion is conferred, a binding rule cannot be laid down save, perhaps, in exceptional cases of which this is not one: Norbis v. Norbis[21] and Dix v. Crimes Compensation Tribunal[22]. As the statement by Cullen, C.J. shows, the ultimate question is whether justice requires the grant of leave.[23] That requires a weighing of various factors pro and con. The account or explanation of the failure to comply is one such factor[24]. It will often be significant and sometimes preponderant. Another factor, of similar effect, is prejudice.

With the assistance of the intending appellant and the intended respondents the Court, on this opposed ex parte application[25], has received a detailed account of the failure to comply with the statutory requirement. But I do not think that this is what a "reasonably satisfactory account" means. Rather, in my view, a reasonably satisfactory account means an explanation, in appropriate detail, of how the non-compliance came about, which shows the applicant to have acted in a way which is reasonably satisfactory or, to use Deane, J.'s word, acceptable.

In my view, the court has not received an "acceptable explanation" or a "satisfactory account" in the sense in which I am using those expressions. The respondents (as I shall call the intended respondents) were not in custody, so that the Director as intending appellant needed to know their whereabouts in order to serve them. The Director had that information. Each of them had stated his current address in the committal proceedings and again immediately before the allocutus was put to him after he had pleaded guilty in the County Court. A senior solicitor for Victorian WorkCover Authority was present during both hearings and, though she has sworn two affidavits, she has not sworn that she was out of court when those addresses were given. In any event, the instructing solicitor on the plea in the County Court would have heard them. More importantly, the Associate should have endorsed on the presentment the address as part of the particulars given by each respondent and the presentment could have been searched on behalf of the Director. Most importantly, in the undertaking for bail, which was available to the Director, each respondent stated his address. Mr. Coghlan, with his usual candour, stated that in fact the Director had had the current residential addresses of the respondents. The current addresses should have been conveyed to those asked to serve the notices of appeal, but they were not. Finally, the respondent Craib at least is still employed by the company respondent, but no attempt was made to serve him at its Victorian premises.

To determine where the interests of justice lie in this case is not easy. If this were a civil proceeding I would have no hesitation in granting leave. But it is a criminal proceeding, and, moreover, one in which it is the Crown's representative who seeks to appeal and now seeks an indulgence, where the indulgence relates to a presumptive time limit laid down by statute, not rule of court. Modern law is solicitous of the interests of persons upon whom the criminal justice system is brought to bear. The facts put before the Court show carelessness, if not incompetence. This, I think, is a case quite different from one where an intended respondent has recently changed his or her residential address unbeknown to the Director. It is a case, not so much of delay, as of mistakes, indeed blunders. There was a want of control by the Office of Public Prosecutions. In the end, however, I have come to the conclusion that justice requires the grant of leave. Although to my way of thinking the failure to comply has not been explained acceptably or satisfactorily accounted for, that consideration is in the circumstances of this case outweighed by other considerations in favour of the grant of leave. First, there is no prejudice to the respondents apart from the fact that the sentences imposed on them lose their finality - and that is not a relevant type of prejudice.[26] At least the respondent Coad had received informal notice of the intended appeal relating to him within the period of one month[27]. Secondly, the liberty of the subject cannot be

affected by the grant of leave. Thirdly, the Director has applied to the court promptly after failing to serve within time. Fourthly, the Director was genuinely trying to effect service during the period of one month, albeit only towards the end of that period. Fifthly, there is, as Phillips, J.A. explains, a significant public interest in the consideration by an appellate court of the quantum of the fine provided for by the compendious s.47 of the Occupational Health and Safety Act 1985 that should be imposed on individuals, though it is, of course, quite impossible to say whether the appeal will lead to elucidation of principle.

I agree in the order proposed by Phillips, J.A.

I have had the benefit of reading the draft judgment of Phillips, J.A. and agree with his Honour that leave should be granted to the Director to serve the proposed notices of appeal on the two respondents. I also agree that the principles which govern the present applications are conveniently set out in R. v. O'Keefe[28]. As the Full Court in that case has made plain, where the statutory time limit has passed, the respondent has an interest in the sentence of the court and this interest ought not to be disturbed unless there is good reason for doing so. It is for the Director to establish the circumstances which warrant the Court exercising its discretion under s.567A(3). One of the matters to which regard is had for that purpose is whether the Director has given a "reasonably satisfactory account" of the failure to serve the notice of appeal within the period prescribed by the legislation[29]. In Bishop v. The Queen[30], in which an application was made by the Crown to serve a notice of appeal after the expiration of the time limit prescribed by O.52 r15 of the Federal Court Rules, Deane, J. expressed the requirement in slightly different terms, emphasising the need for the applicant to give an "acceptable explanation" for the failure to comply with the statutory requirement. But whatever form of words is used, a

relevant, albeit not conclusive, factor in determining how the discretion should be exercised for the purposes of s.567A(3) is whether a reasonably satisfactory explanation for the failure in question has been presented to the Court by the applicant. The Director's material in this case has been fully described, to the extent necessary, in the judgment of Phillips, J.A. In my view, for the reasons which appear below, it does not sufficiently explain to the required level of satisfaction, the failure to serve the notices of appeal within the required time.

The material discloses that this failure was occasioned by two separate sets of events. The first was the delay in signing the notices of appeal because of the unavailability of the transcript of the hearing and the sentencing remarks which was sought from the transcript provider on 16 March 2001. As things turned out, it was not made available until 12 April 2001. The Director, nevertheless, signed the notices on 4 April 2001. The second set of events includes the failure to provide the process server with the current residential addresses of the respondents. From the material filed by the respondents it seems clear enough that the second respondent was at his home during the weekend of 7 and 8 April 2001 and there is no suggestion in the material that the first respondent was not at his premises during that period or that either of them sought to avoid service. The correct addresses were known to the Office of Public Prosecutions but not to the Authority.

As to the first set of events, two things should be highlighted. First, there is no explanation in the material why the applicant considered it essential to see the transcript before signing the notices of appeal. Whilst it may be accepted that, generally, it is reasonable for the Director to see the transcript before signing a notice of appeal, it is not at all clear why notes of the hearing of the plea in mitigation and of the sentencing remarks and any material that might have been tendered at the hearing, were not a sufficient basis for making the necessary decision in this case. (In my view, it is inconceivable that relevant notes were not taken at the hearing of the plea in mitigation and the Crown's material does not suggest otherwise.) It is to be recalled that the experienced senior Crown prosecutor who appeared at the hearing and the Chief Crown Prosecutor, who did not appear at the hearing, were able to advise the Director by 14 March 2001 that the appeal was warranted. Further, advice to that effect was also tendered on 23 March 2001 by a solicitor from the Office of Public Prosecutions. Presumably notes of the hearing and any material that might have been tendered in evidence were available to those who advised the Director. It can only be assumed that the same information was also available to him. It is not always the case that mere failure to obtain the transcript within the required period will be regarded as a satisfactory reason or explanation for the delay by the Crown in the service of the notice of appeal.[31] A decision on whether an appeal should be taken and if so, on what grounds, might well be made on the basis of notes taken at the hearing of the plea in mitigation[32]. It is, of course, quite possible that, in this case, the notes and the other material were insufficient for the purposes of settling the notices of appeal, but that is not dealt with in the Director's material.

The second thing that should be highlighted in relation to the delay in the Director's office is that the material before us does not make clear whether everything that could reasonably have been done to obtain the transcript within the required time, was in fact done. Thus, the evidence does not show whether the transcript provider was told that the transcript was sought as a matter of urgency and informed of the time constraint or whether the request was followed up with any degree of urgency. Similarly, if the hold up was caused by the judge not settling the sentencing remarks, was contact made with his Associate to ensure that his Honour was aware of the urgency of the situation? It may be that all these steps had been carried out, but the material is silent on this matter.

I now turn to the second set of circumstances that contributed to the failure to serve the notices of appeal within the required time, namely, the failure to supply the process server with the relevant residential addresses of the respondents. The material does not explain why the Authority did not have available to it the current residential addresses of the respondents. On the face of things, one would have expected it to have that information on its files, bearing in mind that it is the informant and that a senior solicitor from its office was present at the hearing of the plea in mitigation and the sentencing of the respondents when that information was clearly available. Further, it seems surprising that, notwithstanding the obviously short period that remained within which the notices could be served by the time they were sent to the process server, there was no co-ordination between the Office of Public Prosecutions and the Authority to ensure that the correct information was conveyed to those who were asked to effect service. Moreover, it seems that no contingency plans were put in place to deal with the situation if service were not effected on one or both of the respondents on the Friday (6 April 2001) so as to facilitate service over the weekend. It may be taken that the respondents were at their respective homes during the weekend in which case they could have been served if only the process server had been advised of their correct addresses. The situation here is unlike that in O'Keefe where the respondent had left Warrnambool shortly before the police sought to serve the notice of appeal on him and for that reason service could not be effected.

In the circumstances, and having regard particularly to the important matters that were not dealt with in the applicant's material (despite the fact that the Crown was given an adjournment to file such further material as it might have thought appropriate), I cannot conclude that a reasonably satisfactory explanation has been provided for the failure to comply with the relevant statutory requirements. That, of itself, militates against the granting of the leave sought. In that context, it is also relevant to take into account that the Crown's appeal against sentence "has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed".[33] This characterisation of Crown appeals against sentence as a form of double jeopardy has also been adopted by this Court in numerous cases including R. v. Clarke[34]; R. v. O'Rourke[35]; D.P.P. v. Bulfin[36] and D.P.P. v. Wilson[37]. The concept of double jeopardy, in turn, gives rise to the notion that the service of the notice of appeal out of time gives rise to "some element of oppression"[38] (the extent of which will obviously vary with each case).

On the other hand, there are other considerations which point to the opposite conclusion. They include the following. First, the material makes it clear that steps were taken by the Crown before the due date to have the notices of appeal served on the respondents within the required period and that the process server made significant efforts to achieve that end. Next, the Director's case is not without merit. Moreover, the case will or might raise for determination an important question of public interest as to the appropriateness of the fines imposed on the respondents in the context of the industrial safety legislation which has undergone amendments in recent years in light of changing community expectations. Further, the element of oppression that might otherwise exist where a notice of appeal is served out of time under s.567A(3), may not be of great relevance here given that there is no prospect of the respondents receiving a custodial disposition as a result of the hearing of any appeal and given that it has not been claimed by them that they were caught unaware of the Crown's intention to appeal their sentences. They candidly informed the Court through their respective counsel that they will not suffer prejudice if the leave sought were granted other than the obvious prejudice flowing from a reconsideration of their sentences. It is also relevant to note that the Crown acted with reasonable expedition in making its applications for leave. The material put forward in support of these applications is voluminous and, no doubt, would have taken some days to put together although, in the event, as Phillips, J.A. has said, much of it was irrelevant. In all the circumstances, I am satisfied that the Crown has acted reasonably promptly at least in relation to this aspect of the case.

In the final analysis, the question whether the present applications should be acceded to involves the exercise by the Court of its discretion to ensure that justice is done according to law. That discretion is relevantly unrestrained as has been shown by Phillips, J.A. in his judgment. In my view, this is very much a borderline case and it has given me many anxious moments, but in the end, I have concluded that, in the circumstances of this case, special and substantial reasons[39] exist for acceding to the applications. The reasons include that the appeal will or might raise for determination at the appellate level an important matter of public interest, that there will be little or no relevant oppression or prejudice suffered by the respondents by reason of the granting of the leave sought and that genuine efforts were made to have the respondents served with the notices of appeal within the time limit.

[6] Also, it seems, in their bail undertakings.

[7] In New South Wales, where there appears to be no express time limit on Crown appeals, the Court of Criminal Appeal has criticised the prosecution for waiting for transcript before commencing an appeal: DPP v. Allan Arthur Garnam (9 March 1989, unreported). Compare however R. v. Pham, R. v. Ly (1991) 55 A.Crim. R. 128, R. v. Wayne Anthony Myers (13 February 1990, unreported), R. v. Hallocoglu (1992) 29 N.S.W.L.R. 67 at 80 and R v. Wong, R. v. Leung [1999] NSWCCA 420; (1999) 48 N.S.W.L.R. 340.

[8] Jackamarra 195 C.L.R at 543 per Kirby, J. Default through a failure to keep up to date with the rules was not fatal in Palata Investments [1985] 1 W.L.R. 942; nor in Kostokanellis v. Allen [1974] VicRp 71; [1974] V.R. 596 at 607 was an error of judgment leading to non-appearance.

[9] See and compare, on the civil side, Shepperdson v. Lewis [1966] VicRp 59; [1966] V.R. 418 at 423, Kostokanellis at 602, 605-6.

[11] [1984] FCA 176; (1984) 3 F.C.R. 344 at 348-9, sub nom. Hunter Valley Developments v. Minister for Home Affairs and Environment 58 A.L.R. 305 at 310-311.

[15] In New South Wales, see R. v. Pham, R. v. Ly (1991) 55 A. Crim. R. 128 at 138 per Gleeson, C.J. and R. v. Wong, R. v. Leung [1999] NSWCCA 420; (1999) 48 N.S.W.L.R. 340 at [170] per Spigelman, C.J. On the civil side see also Kostokanellis v. Allen [1974] VicRp 71; [1974] V.R. 596 at 605 and Ramsay v. Madgwicks (a firm) [1989] VicRp 1; [1989] V.R. 1 at 5 per Young, C.J.

[16] See and compare Finlay v. Littler [1992]2 V.R. 181 at 187-8 per Crockett, J.

[17] Cf. R. v. O'Keefe [1979] VicRp 1; [1979] V.R. 1 at 5, citing R. v. Darby (unreported, 2 May 1975, Gowans, J.).

[18] [1982] FCA 33; (1982) 58 F.L.R. 233 at 236. Notice of appeal had in fact there been filed in time.

[19] (1914) 14 S.R.(N.S.W.) 141. Again, the notice of appeal had been filed in time.

[21] [1986] HCA 17; (1986) 161 C.L.R. 513 at 517-520, 533-534 and 537-541.

[23] See also, for instance, Hughes v. National Trustees Executors & Agency Co. of Australia Ltd. [1978] VicRp 27; [1978] V.R. 257 at 262, approved in Gallo v. Dawson [1990] HCA 30; (1990) 64 A.L.J.R. 458 at 459 (affd [1992] HCA 44; 66 A.L.J.R. 859); and Technical Team Projects Pty. Ltd. v. Noble Dunn Pty. Ltd. (1990) 20 N.S.W.L.R. 221 at 227-230.

[24] Technical Team Projects at 231-232.

[25] Cf. Pickwick International Inc. (GB) Ltd. v. Multiple Sound Distributors Ltd. [1972] 1 W.L.R. 1213 at 1214, where Megarry, J. (as he then was) stated that the fact that the expression was a contradiction in terms ought not to be allowed to obscure the utility of the process.

[26] Cf. Ketteman v. Hansel Properties Ltd. [1987] A.C. 189 at 203 per Lord Keith of Kinkel (dissenting).

[27] Cf. R. v. Pham & Ly (1991) 55 A.Crim.R. 128 at 136.

[31] D.P.P. (N.S.W.) v. Allan Arthur Garnam, Court of Criminal Appeal (N.S.W.), unreported, 9 March 1989, at 6; R. v. Wayne Anthony Myers, Court of Criminal Appeal (N.S.W.), unreported, 13 February 1990 at 9 and R. v. Hallocoglu, (1992) 29 N.S.W.L.R. 67 at 80 per Hunt, C.J. at CL. (Section 5D of the Criminal Appeal Act 1912 (N.S.W.) which empowers the Crown to appeal against sentence does not prescribe a limit on the time within which the Crown must serve the notice of appeal. Consequently, the New South Wales cases that involve delay by the Crown in the giving of the relevant notice are not concerned with the threshold requirement of obtaining leave to appeal and should be read with this difference in mind.)

[32] Hallocoglu at 80 per Hunt, C.J. at CL.

[33] Everett v. The Queen [1994] HCA 49; (1994) 181 C.L.R. 295 at 299 per Brennan, Deane, Dawson and Gaudron, JJ.

[34] [1996] VICSC 30; [1996] 2 V.R. 520 at 522 per Charles, J.A.

[35] [1997] 1 V.R. 246 at 251 per Winneke, P., Brooking and Callaway, JJ.A.

[36] [1998] 4 V.R. 114 at 136-7 per Charles, J.A.

[37] [2000] VSCA 112; [2000] 1 V.R. 481 at 488 per Winneke, P.

[38] The Queen v. John David Douglas, Court of Criminal Appeal, unreported, 18 August 1988 per Southwell, J.

At a glance

Court

Decision date

Before

Source

Judgment (92 paragraphs)

Parties