DPP v Hayden [2006] VSCA 152

"Where the time for giving notice of appeal has elapsed..., 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."[2]

5 The Full Court applied what is still regarded as the definitive statement of the governing principles, set out by Gowans J in the judgment of the Court of Criminal Appeal in R v Darby,[3] as follows:

"(1) the prescription by the statute of the time limit for giving notice is intended to secure finality and compliance is intended to be required in the ordinary case;

(2) extension of the time is a matter for the discretion of the Court, and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension;

(3) rigid restrictions cannot be imposed on the exercise of discretion but in general the Court will require special and substantial reasons for extending the time;

(4) the 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;

(5) it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;

(6) a reasonably satisfactory account of the failure to comply with the statutory requirement needs to be forthcoming."[4]

These principles have been applied repeatedly in this Court.[5]

6 In DPP v Aarons,[6] Chernov JA (with whom Phillips CJ and Callaway JA agreed) noted that the power to extend time for service was exercisable only by the Court of Appeal itself. His Honour said:

"It has been recognised before (and after) 1984 that Crown appeals should be brought only in the rare and exceptional case, to establish some matter of principle and to enable the Court of Appeal to give guidance to courts having the duty to sentence convicted persons."[7]

7 Subsequently, in DPP v Craib[8], also an application by the Director for leave to serve out of time, Chernov JA said:

"... [I]t 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.'[9] 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;[10] R v O'Rourke;[11] Director of Public Prosecutions v Bulfin[12] and Director of Public Prosecutions v Wilson.[13] 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'[14] (the extent of which will obviously vary with each case)."[15]

We respectfully adopt those views.

8 The phrase "some element of oppression" comes from R v Douglas,[16] where Southwell J (sitting as a member of the Court of Criminal Appeal) said:

"[I]n 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... 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."

9 Those remarks are pertinent to the present application. It is particularly significant that Hayden is not in custody. According to his counsel, since he was sentenced he has "attempted to restore his life and... should be left to continue with his rehabilitation."

10 The merits of the proposed appeal are relevant on such an application. In Darby it was said that it was the Court's practice not to grant any considerable extension of time unless the Court were satisfied -

"that there are such merits in the proposed appeal that it would probably succeed."[17]

"An applicant who has been dilatory or 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 not been 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."[18]

12 Winneke ACJ took a similar approach in R v Davis, when he said:

"It is to be emphasised that the court's decisions upon applications of this kind involve discretionary considerations, and the longer the time which elapses between the closure of the statutory time limit and the date of the application, the more exceptional will the circumstances have to be. Certainly the applicant must, in any case, put forward material to demonstrate satisfactory reasons for the failure to comply with the time and also to show, in the event that the time lapse is considerable (as it is in this case), that there are such merits in the proposed appeal that it will probably succeed."[19]

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.

[1] [1979] VicRp 1; [1979] VR 1.

[2] At 4-5.

[3] Unreported, Court of Criminal Appeal, 2 May 1975.

[4] At 5.

[5] See for example R v Craker [1999] VSCA 63 at [14]; DPP v Craib [2001] VSCA 92; (2001) 3 VR 388 at 389 [2]; R v Martin [2002] VSCA 16; R v Davis [2003] VSCA 173; (2003) 6 VR 538 at [5].

[6] [1999] VSCA 71; [1999] 3 VR 150.

[7] At 155 [25], citing Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 at 310; Everett v R [1994] HCA 49; (1994) 181 CLR 295 at 300; R v Clarke [1996] VICSC 30; [1996] 2 VR 520 at 522. See also DPP v Josefski [2005] VSCA 265; (2005) 158 A Crim R 185.

[8] [2001] VSCA 92; (2001) 3 VR 388.

[9] Everett v R [1994] HCA 49; (1994) 181 CLR 295 at 299 per Brennan, Deane, Dawson and Gaudron JJ.

[10] [1996] VICSC 30; [1996] 2 VR 520 at 522 per Charles JA.

[11] [1997] 1 VR 246 at 251 per Winneke P, Brooking and Callaway JJA.

[12] [1998] 4 VR 114 at 136-7 per Charles JA.

[13] [2000] VSCA 112; (2000) 1 VR 481 at 488 per Winneke P.

[14] R v Douglas (unreported, Court of Criminal Appeal, 18 August 1988) per Southwell J.

[15] At 402.

[16] Supra at 3.

[17] Supra at 2.

[18] At 5.

[19] [2003] VSCA 173; (2003) 6 VR 538 at 539 [6] (emphasis added).