13 Even where the time lapse is relatively short, as in the present case, we would still expect the Director to file material showing that the appeal had sufficient prospects of success to warrant the grant of leave. As appears later, no such material was filed.
The chronology of events
14 On 13 February 2006, Hayden pleaded guilty in the County Court to one count of trafficking in a drug of dependence, namely pseudoephedrine, and one count of possessing a false driver's licence. Following a plea in mitigation, Hayden was sentenced on 16 February 2006 to three years' imprisonment on the trafficking count and two years' imprisonment on the false licence count. The trial Judge ordered that the terms of imprisonment be served concurrently, and further ordered that the terms of imprisonment be wholly suspended for three years.
15 The date of sentence being 16 February 2006, any notice of appeal by the Director had to be filed on or before 16 March 2006. What occurred subsequently was described in affidavits filed both on behalf of the Director and on behalf of Hayden, as follows.
16 The Crown Prosecutor who appeared on the plea was instructed by a solicitor (L), employed by the Office of Public Prosecutions ("OPP"). On 22 February, L sent an email to a senior lawyer in OPP with overall responsibility for appellate matters (G), asking G to provide advice as to whether a Director's appeal should be instituted. G had not previously been involved with the matter and had no knowledge of it. That same day, G indicated by email to the Director that he considered that the sentence imposed on Hayden was potentially appellable. On 23 February, the Director advised G that he agreed with that view. That same day, G asked L to obtain a copy of the transcript of the plea and sentence hearings as soon as possible. L advised G that she had already ordered the relevant transcripts from the Victorian Government Reporting Service.
17 On 27 February, L emailed to G the transcript of the plea hearing. On 7 March, L emailed to G the transcript of the sentencing hearing, revised by the trial Judge. On 8 March, G instructed another solicitor under his supervision (B) to draft a notice of appeal. On 10 March, the draft was sent by email to the Director, who was attending a conference interstate.
18 That same afternoon, the informant in the criminal proceeding advised B by telephone that Hayden was "currently thought to reside in Queensland". The informant provided B with the name of a police officer in Queensland to whom a notice of appeal could be sent for service.
19 13 March was a public holiday. On the morning of 14 March, G discussed the matter further with B and with the Director, who confirmed his intention to appeal the sentence imposed on Hayden, and signed the notice of appeal. On 14 March, the signed notice of appeal was sent by Express Post to the Queensland police officer. On 16 February, the police officer confirmed receipt of the notice of appeal and said that he would try to locate Hayden and serve the notice of appeal by 11:00 pm that night Queensland time (midnight Victorian time), being the time when the statutory time limit for service would expire.
20 On 17 March, G was informed that the Queensland Police had been unable to locate Hayden by 11:00 pm the previous evening Queensland time and that, accordingly, the notice of appeal had not been served. The Queensland police officer was then instructed not to serve the notice of appeal pending the outcome of the application for an extension of time for service.
21 An affidavit sworn by Hayden's mother confirms that Queensland Police did attend on the evening of 16 March at the house where she and her husband and Hayden lived. Hayden was not home at the time but Mrs Hayden offered to accept on his behalf what was described to her as being "a package from the Victorian Police". The officer said that Hayden himself had to sign for it and asked that Mrs Hayden pass on a request to Hayden that he attend at the police station to collect the package. When Mrs Hayden asked if it was urgent, the officer said it was not. After one unsuccessful attempt by Mrs Hayden, on 8 April, to collect the package from the police station, Hayden himself collected it on 1 May 2006. In her presence, Hayden identified himself to police and said that he was "there to be served with a document".
No explanation for the delay
22 Two things emerge clearly from this chronology. First, within a week of the handing down of the sentence, both the Director and G (the manager of appellate matters on behalf of OPP) had formed the provisional view that the sentence was appellable. (The question of service of a notice of appeal on Hayden should have been considered then and there.) Secondly, it was not until 10 March, some 15 days later, that OPP was alerted to the fact that Hayden was believed to be in Queensland. As already noted, this was drawn to the attention of OPP by the informant in the criminal proceeding.
23 The critical question is: how was it that OPP did not become aware of Hayden's location interstate until three-quarters of the time for serving the notice of appeal had elapsed? Was this a case of a defendant having unexpectedly changed his place of residence?
24 The answer initially provided to the Court by counsel for the Director, evidently on instructions, was that until 10 March OPP had been proceeding on the assumption that Hayden was resident in Victoria, such that service would present no difficulties. Following objection by Mr Grace, however, and a review of the transcript of the plea hearing on 13 February 2006, counsel for the Director conceded - properly - that the fact of Hayden's being a Queensland resident had been stated in open court on the plea in the presence of L, the OPP solicitor responsible for handling the criminal matter. Mr Grace also pointed out - and counsel for the Director did not dispute - that a condition of Hayden's bail pending trial was that he reside at his home address in Queensland. The grant of bail followed a Supreme Court hearing in which OPP took part.
25 In short, there is no satisfactory explanation for the failure to serve in time. The information about Hayden's whereabouts was at all times in the possession of OPP, and it should have been quite straightforward for arrangements to be put in place so that the notice of appeal could be served as soon as it was signed by the Director. OPP itself bears responsibility for the failure to act in a timely way to put such arrangements in place.
26 It is regrettable that the submission initially advanced on behalf of the Director - that OPP did not know about Hayden's Queensland residence until 10 March - was simply not correct. It seems extraordinary, given that this matter had been adjourned for more than two months, that even on the adjourned hearing OPP had not adequately prepared the case in support of the Director's application for an extension. It is axiomatic that there must be an explanation of the failure to serve in time. At a minimum, therefore, preparation of the case should have involved a thorough review of the history of the matter, including of course the transcript of the plea hearing. Had that occurred, it would not have been necessary for counsel for Hayden to contradict the Director's submissions and point out to the Court that the relevant information had at all times been in the hands of OPP.
27 We were also surprised - as we pointed out to counsel for the Director - that no material was put forward on the Director's behalf addressing the merits of the proposed appeal. Even if there had been a satisfactory explanation for the failure to serve within time, we would have been most reluctant to grant the leave sought in the absence of any material which might demonstrate that the proposed appeal had reasonable prospects of success.
28 For these reasons, the application should be refused.