Court of Appeal (Vic)|2014-03-19|Before: Kaye J, Mr J, Weinberg JA

Efandis v The Queen [2014] VSCA 42 (19 March 2014)

DPP v Efandis (Unreported, Supreme Court of Victoria, Kaye J, 10 September 2008 (date of conviction))

1 In 2008, the applicant, Vasiliki Efandis, was convicted of the 2004 murder of her partner, George Marcetta. The trial was lengthy, having commenced on 23 July 2008 and concluded with a guilty verdict on 10 September 2008. The applicant was sentenced, on 28 November 2008, to 24 years' imprisonment with a non-parole period of 20 years.

2 For reasons that I shall shortly explain, the applicant did not seek to challenge her conviction, at least in any formal sense,[1] until some five years or so had elapsed, in the latter part of 2013. She then sought an extension of time, pursuant to s 313(1) of the Criminal Procedure Act 2009 within which to file an application for leave to appeal.

3 Not surprisingly, the Deputy Registrar (Legal) rejected that application. He considered that the applicant had failed to provide an adequate explanation for the lengthy delay in initiating an appeal. He also considered that the proposed appeal had little likelihood of success. He noted, in that regard, that the sole ground of appeal upon which the applicant proposed to rely, namely that the verdict was 'unsafe and unsatisfactory', had not been well articulated.

4 The applicant now seeks, before this Court, to invoke s 313(2) of the Criminal Procedure Act 2009. That section relevantly provides:

If the Registrar of Criminal Appeals of the Supreme Court refuses an application to extend time under subsection (1), the applicant is entitled to have the Court of Appeal determine the application.[2]

5 The practice to be followed in relation to applications of this kind is set out in the Victorian Court of Appeal Practice Direction No 2 of 2011. Section 14 of the Practice Direction is headed 'Elections against refusals of applications for extension of time - rules 2.23 and 2.24'. That section provides that where an applicant elects, pursuant to s 313(2) of the Criminal Procedure Act 2009, to renew an application for extension of time that has been refused, the renewed application will be determined by this Court.

6 Section 14 of the Practice Direction goes on to say:

In most such cases, the Court will expect to determine the renewed application without oral argument, on the basis of the application and any supporting materials.

7 However, the Practice Direction provides that an applicant may request an oral hearing of a renewed application. That is precisely what the applicant has done in this case. In the ordinary course, this Court will, in the event that it grants the extension of time, go on to consider the application for leave to appeal at the hearing.

8 The Practice Direction makes it clear that the written submission filed in support of renewal should be provided to the Court, and to the Crown, well in advance of the hearing date of the renewed application.

9 Regrettably, the applicant did not follow that course in this case. Rather, the applicant originally sought to file a lengthy submission (in fact some 27 pages long) which the Registry quite properly rejected. The applicant then reduced that submission to some 11 pages, with footnotes attached. This submission ultimately reached the Court only two days prior to the scheduled hearing of this matter. It need hardly be said that this was unsatisfactory.

10 One would have to be something of an optimist to think that an application for an extension of time within which to file an application for leave to appeal against conviction, brought some five years or so after the relevant time limit had expired, would be well received. Any such application is likely to face careful scrutiny. A delay of that length is obviously extraordinary. It certainly requires some explanation.

11 It was submitted, on behalf of the applicant, that the various reasons for the delay could be distilled from two affidavits sworn by Marijka Efandis, the applicant's sister. The first of these was dated 9 August 2013.

12 In that affidavit, Ms Efandis deposed that she had been present in court throughout the entirety of her sister's committal proceedings. She added that she had also attended throughout most of the trial.

13 Ms Efandis said that she was in regular contact with her sister in the months following her conviction for murder. She said that the lengthy delay in filing an application for leave to appeal had been brought about by reason of 'logistical and financial' matters.

14 Ms Efandis said that she understood that a notice of appeal had been filed on behalf of the applicant on 2 December 2008, within time. That notice had been filed by the firm of solicitors who had represented the applicant at her trial.

15 Ms Efandis went on to say that 'without being critical of those legal practitioners' the applicant had lost confidence in them. She had then entrusted Ms Efandis to obtain a copy of the trial transcript from her original solicitors. She had also sought a copy of the transcript of the committal proceeding, and a copy of the prosecution brief. Some of this material had been held by another firm of solicitors which had acted for the applicant in the committal, before being replaced by the solicitors who acted at the trial.

16 Ms Efandis said that it took her 'some months' to obtain the trial transcript. She gave no explanation for what seems to have been an inordinate delay in that regard. She said that, eventually, by September 2009, she had obtained most of what was required, but it consisted of 'a carton of unsorted A4 paper with parts of the transcript missing'.

17 The next thing that happened, according to Ms Efandis, was that she approached Victoria Legal Aid (VLA), which had funded the trial, and met with two of its solicitors on 21 October 2009. She said that she had paid for the committal herself, but had exhausted her funds by the time of the trial.

18 Ms Efandis said that the VLA solicitors had been 'guarded' as to the prospects of any appeal. They informed her that aid for an appeal would be refused.

19 In early 2010 the applicant asked Ms Efandis to approach the Public Interest Law Clearing House (PILCH). In accordance with her sister's wishes, she discussed the case with two members of PILCH's staff in March 2010. She provided them with a copy of the trial transcript. She met with them again in June 2010. According to Ms Efandis, they were 'similarly guarded' as to the prospects of any appeal. They told her that they were unable to help.

20 In late June 2010 the applicant asked Ms Efandis to seek further advice from new practitioners. Accordingly, she approached another firm of solicitors. Over the next five months or so, in the period leading up to November 2010, she provided those solicitors with copies of the missing parts of the trial transcript which she obtained from the Office of Public Prosecutions and/or the Victorian Government Reporting Service.

21 That third firm of solicitors sought the opinion of new counsel regarding the prospects of an appeal. An advice was received in December 2010 which, Ms Efandis said, was 'also guarded'. She discussed the advice with her sister over the period January and February 2011. She said that the cost of having obtained this advice had been 'significant'.

22 In late May 2011 Ms Efandis conveyed to that firm of solicitors the applicant's 'reluctant' instructions not to pursue the appeal which had been formally lodged in December 2008, but not acted upon.

23 According to Ms Efandis, she read the entire 3700 page transcript at least twice over the next ten months or so. She continued to visit her sister regularly. By this time, the applicant had formed the opinion that the various lawyers who had been consulted regarding the merits of an appeal could not have read the transcript with appropriate care.

24 That led the applicant to ask her sister to consult the third firm of solicitors again and revisit the question of an appeal. In August 2012 a further written opinion was obtained from counsel. According to Ms Efandis, it was 'as guarded as the earlier one'. This left Ms Efandis despondent, as well as financially stressed.

25 Ms Efandis then recalled that another barrister, Richard Lawson, had had a short involvement in the case in March 2007. By October 2012, she had tracked Mr Lawson down. He indicated that he could do nothing without a solicitor to brief him. That led the applicant to engage the services of her current solicitors (by now at least the fourth set of solicitors who have acted for her). Those solicitors, together with Mr Lawson, generously agreed to act pro bono on the applicant's behalf.

26 In July and August of 2013 a set of documents that may be described as the 'appeal papers' were prepared, and eventually filed with the Registry. As previously indicated, the application was, in form, an application for an extension of time within which to seek leave to appeal. And, also as previously indicated, that application was refused by the Registry.

27 Ms Efandis swore a supplementary affidavit on 2 October 2013. In that affidavit she sought to provide a further explanation as to why a period of about five years had elapsed before steps were taken to pursue this appeal.

28 Put simply, she said that neither she nor any member of the applicant's extended family had ever had any significant contact with the criminal law. Nor had they had any legal training or experience. She explained that she had paid more than $120,000 in legal fees to cover the costs of the committal. In addition, she had paid a further sum of just over $30,000 to the firm of solicitors who had twice procured legal advice regarding the merits of an appeal.

29 Although Ms Efandis did not say so in terms, I am perfectly willing to accept that, after making payments of this order, her financial position was somewhat parlous.

30 Ms Efandis went on to say that it had come to her attention that the two VLA 'solicitors' with whom she had originally met in October 2009 may, in fact, have been administrative staff, and not trained lawyers. She added that when VLA contacted her, some five or six weeks later, to tell her that it was not worth appealing, and that funding would not be approved, she received nothing in writing. She was merely given this information over the telephone.

31 In further elaboration of her discussions with PILCH, Ms Efandis explained that the two conversations that she had had with members of its staff had occupied a total of about 30 minutes.

32 Finally, Ms Efandis clarified the situation regarding the third firm of solicitors that she had approached. She said that the reason why there had been a delay of some months in obtaining advice from counsel as to the merits of an appeal was because counsel had either been overseas, or was about to go overseas, at the time he was retained. She identified what she described as several 'arguable issues' that counsel had raised in his written advice. However, it is apparent that none of these 'arguable issues' have been pursued. The only ground now relied upon, namely, 'unsafe and unsatisfactory', was not one of the points said to have been 'arguable' in that advice.

33 Ms Efandis concluded her supplementary affidavit by saying that although every piece of advice that had been received along the way was expressed in 'guarded' terms, no one had ever suggested that the appeal was 'without merit'.

34 I have set out, in considerable detail, the affidavit material upon which the applicant relies. I have done so because it is well established, on the authorities, that any application for an extension of time (and particularly one involving a delay of this order) must be supported by an adequate explanation for the delay, in the absence of which the matter is unlikely to go any further.

35 In R v Darby[3] Gowans J (with whom Lush J and Crockett J both agreed), after referring with approval to what had earlier been said by Little J in R v Varney,[4] set out the principles which govern applications for extension of time in criminal appeals. His Honour said:

(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.[5]

36 In R v O'Keefe[6] these observations were specifically approved by the Full Court. The principles laid down in Darby remain good law today.

37 The time limit prescribed for challenging a conviction before this Court is 28 days.[7] That time limit is intended to be taken seriously. There is obviously a strong public interest in securing finality. Any significant delay in filing a notice of appeal has the potential to result in an injustice, particularly if it belatedly emerges that a new trial must be held. Memories fade over time. Witnesses die, or become unavailable. Justice delayed is, in that sense, justice denied.

38 It is also most unfortunate that the victim, and/or his or her relatives and friends are put through the ordeal of having to wait for a lengthy, and perhaps undefined period before it can be said that closure has been achieved.

39 Any applicant for an extension of time is, of course, required to place before this Court material in support of an exercise of discretion in his or her favour. As Gowans J observed in Darby, 'special and substantial reasons' will, in general, need to be shown if time is to be extended.[8]

40 It is at this point that the present application runs into the first of at least two major hurdles. The longer the time that has elapsed since the expiration of the statutory period, and the more changes that have taken place in the meantime, the more exceptional must be the circumstances put before the Court if time is to be extended. On any view, five years represents an inordinate period of delay. That is so irrespective of the reasons put forward by way of explanation for that delay.

41 Even if the reasons for the delay were adequately explained, it would have to be shown, in a case such as this, that not merely are the merits of the proposed appeal arguable, but that, if time were extended and leave to appeal were granted, the appeal itself would 'probably succeed'.[9] In relation to a ground such as 'unsafe and unsatisfactory', where no complaint whatever is made about the conduct of the trial, that is a second significant obstacle to have to overcome.

42 I can understand the difficulty of the situation that confronted the applicant, after she had been convicted. She had by then spent a great deal of money on her defence. Once VLA had indicated that it was not prepared to fund an appeal, a good deal more money would be required in order to have the merits of an appeal privately assessed.

43 At the same time, it must be said that having had senior counsel appear at the committal seems, in hindsight, to have been something of a luxury. In addition, the applicant and her sister were eventually able to come up with more than $30,000 to obtain an advice as to the merits of an appeal. The real problem, from their perspective, seems to have been that the merits were not seen as being all that great.

44 Even allowing for the need to assemble relevant documentation, I am not persuaded that it was necessary for Ms Efandis to spend upwards of a year procuring the committal depositions, and the Crown brief, simply in order to obtain advice as to the merits of an appeal. All that was required, initially at least, was the trial transcript and the judge's charge. These documents should have been readily available, certainly within a relatively short time.

45 My impression, based upon Ms Efandis' two affidavits, is that a number of attempts were made to find counsel who would advise that an appeal had realistic prospects of success, but no such advice was forthcoming. Any such support for an appeal was always 'guarded'. I read the term 'guarded' as indicating that counsel were doubtful, at best, as to the prospects, of an appeal succeeding.

46 In the event that an extension of time is to be granted, there is now but a single ground of appeal to be relied upon. It is said that the verdict was unsafe and unsatisfactory. If counsel who appeared at the trial had considered that ground to be even barely tenable, it would have taken but a few moments to give that advice, and to draw the relevant papers. The fact that this was not done speaks volumes.

47 It would be sufficient to dispose of this application simply on the basis that no reasonably satisfactory account of the failure to comply with the statutory requirement has been forthcoming. However, the applicant is facing a long sentence and, for that reason alone deserves to have her case considered, at least to the extent of seeing whether it is at all arguable.

48 In that regard, I consider the proposed ground of appeal to have little, if any, real merit.

49 The principles governing 'unsafe and unsatisfactory' as a ground of appeal are well established.

50 In Libke v The Queen,[10] Hayne J agreed that the evidence adduced at the trial of the accused did not all point to his guilt, and that there was some basis upon which it could be suggested that he may not have committed the offences charged. However, in determining whether an unsafe and unsatisfactory ground of appeal was made out, his Honour said:

...the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.[11]

51 Hayne J referred specifically to M v The Queen[12] where the High Court formulated the relevant principle as follows:

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[13]

52 The test, as articulated by the majority in M v The Queen was restated in MFA v The Queen[14] and reaffirmed in SKA v The Queen.[15] In the latter case, a majority of the High Court found that the New South Wales Court of Criminal Appeal had erred in asking itself 'whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence'.[16]

53 SKA was recently affirmed by the High Court in BCM v The Queen.[17] There it was held that the Queensland Court of Appeal had not discharged its obligation to articulate its assessment of the capacity of the evidence in a trial to support a verdict of guilt. The Court went on to say that that obligation was not discharged simply by 'observing that the jury was entitled to accept the evidence of [the complainant] and act upon it'.[18]

54 In my opinion, this was not, as the applicant would have it, a weak case. Indeed, the evidence against the applicant could fairly be described as compelling.

55 The deceased had plainly been plied with oxazepam, almost certainly in his food or drink. The applicant had cooked the deceased's dinner, and been with him at his home at 140 Liberty Parade, Bellfield, certainly while he ate it. It is almost inconceivable that a complete stranger, intent on carrying out a seemingly motiveless murder (or perhaps an equally motiveless act of arson), would have drugged the deceased before setting fire to his house and burning him to death. The fact that the murder of the deceased had two distinct limbs, the lacing of his food with drugs, and the setting fire to the house (the first of which had to be implemented by someone known to him, and who had gained his trust) necessarily limits the circle of possible offenders. Indeed, it probably limits that circle to a mere handful of possibilities. The applicant fell within that small circle.

56 The Crown submitted that the applicant had a motive to kill the deceased. It argued that she stood to gain financially from his death. After his death, she was left in sole control of their jointly owned company, Universe High-Tech Construction and Interior Pty Ltd. The defence challenged that assertion, relying principally upon the fact that, with the benefit of hindsight, it turned out that the death of the deceased did not benefit her at all. Even the insurance claim, confined to $150,000 for the damage to the property, was said to be problematic, as indeed it turned out to be.

57 Of course, the fact that the applicant may ultimately have been worse off, as a result of her partner's death, does not mean that she foresaw that eventuality in the period immediately preceding his demise.

58 The evidence established that the applicant had the opportunity to drug the deceased despite the fact that, on one view, he may have been given the oxazepam later than originally thought. The amount of the drug found in his body, some 14mg of unabsorbed oxazepam, may have suggested that this substance was administered well after he had consumed his meal, and perhaps as late as 11.30 pm. Of course, that of itself means nothing if, as the Crown argued, the applicant was at the deceased's home throughout the entire period leading up to the fire.

59 It was submitted that the medical evidence concerning the applicant's physical condition at the time, that of a middle aged woman with joint and muscular deficits, would have precluded her from carrying between five and seven four litre containers of kerosene into the house. The Crown responded to that submission by noting, correctly, that each container could have been carried separately into the house.[19] Of course the deceased would have been unconscious by that stage.

60 The evidence concerning the telephone towers suggested strongly that the SMS messages that were transmitted from the applicant's telephone to that of the deceased shortly after 11.00 pm on the night in question were sent from his house, rather than from the applicant's home after she had ostensibly left him at about 10.30 pm. Although, it was submitted before this Court that this evidence was not as compelling as it may have seemed to the jury, the argument advanced lacked cogency. It was based upon a dubious analysis of the statistical material which, in fact suggested that the odds against the applicant having sent the critical SMS from her own home at 91 Oriel Road, Ivanhoe, were substantial. The inference for which the Crown contended, that the applicant had sought to create a kind of 'alibi' for herself, by the exchange of SMS messages, was, in my opinion, not merely open, but almost irresistible.

61 In addition, there was the evidence of Anthony Wright, a teenager who saw a man and woman (who he believed to be in her late 20s) in the deceased's driveway at approximately 2.00 am, hours after the applicant was supposedly back at her home. That evidence may not have been particularly telling when viewed in isolation, but it was another piece of the puzzle to which the jury were entitled to have regard.

62 Further, there are the admissions said to have been made to two prisoner informers. Maureen Muntz, a Dame Phyllis Frost prisoner who shared a cell with the applicant, said that she uttered the words: 'we did it, it was arranged'. Another prisoner, Pamela Jeffries, said that the applicant had admitted to pouring kerosene around the deceased's house. I should say that I would not, myself, accord great weight to evidence of this kind, but it is part of the total matrix of facts that must be taken into account.

63 Finally, there was the evidence of Peter Culvenor, the gardener who tended the applicant's lawns. He gave evidence that the applicant told him, in September 2004, that she had been doing bookwork at the deceased's home until 2.00 am on the night in question. This was not a prison confession, and must be considered on that basis. If the applicant did say that to Mr Culvenor, it was a very damning admission.

64 There is some superficial attraction to the submission that the applicant, having consistently maintained over many months that she had left the deceased's home before 10.30 pm, would not have 'slipped up' by revealing to Mr Culvenor that she had in fact been at the house until 2.00 am. However, even the cleverest of offenders do 'slip up', from time to time. The weight to be given to Mr Culvenor's evidence, which was strongly challenged, was very much a matter for the jury to consider.

65 When one has regard to the totality of the evidence led at the trial, and adds to it the significant and proven lies told by the applicant as to the burglary at the deceased's house (arguably in an effort to implicate Ivan Basset, a man with whom the deceased had had a falling out) we are left with a case that cannot possibly be characterised as weak. The jury were perfectly entitled to come to a verdict of guilt, and it would have been surprising had they not done so. On no view can it be said that they 'must' have entertained a reasonable doubt. Having reviewed the evidence for myself, and considered it as a whole,[20] I entertain no such doubt.

66 It follows, for the reasons set out above, that this application for an extension of time should be refused.

67 I have made my own assessment of the evidence and for the reasons expressed by Weinberg JA I would refuse the extension of time in which to lodge notice of application for leave to appeal.

[1] An application for leave to appeal containing what might be described as 'holding grounds' was filed in December 2008. However, no further steps were taken in relation to that application and it was eventually dismissed in June 2011, effectively for want of prosecution.

[3] (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Gowans, Lush and Crockett JJ, 2 May 1975) ('Darby').

[5] Darby (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 2 May 1975), 1-2.

[6] [1979] VicRp 1; [1979] VR 1, 5 (McInerney, Menhennitt, McGarvie JJ).

[8] (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 2 May 1975) 1-2 (Gowans J).

[11] Ibid 596 (emphasis added) (citations omitted).

[12] [1994] HCA 63; (1994) 181 CLR 487. See also the discussion of M v The Queen in R v Klamo [2008] VSCA 75; (2008) 18 VR 644.

[13] Ibid 493 (Mason CJ, Deane, Dawson, Toohey JJ).

[16] Ibid 408 (French CJ, Gummow, Kiefel JJ).

[18] Ibid 392 (Hayne, Crennan, Kiefel, Bell, Keane JJ).

[19] On one view of the evidence, the applicant did not act alone in carrying out this offence. I refer to the evidence of Anthony Wright, and that of Maureen Muntz to which I shall return shortly.

Court (Criminal Procedure) Rules 2008

Efandis v The Queen [2014] VSCA 42

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Efandis v The Queen [2014] VSCA 42 (19 March 2014)

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