(d) According to article 14 subsection 3(a) of the International covenant, for civil and political rights which state:- all are guaranteed the right to be informed promptly and in detailing a language which he understands, of the nature and cause of the charge against him...
Therefore should a non-English speaking citizen be arrested, an interpreter should be provided to hear the charge and answer any question subsequently put to him. this was not done, therefore the arrest and questioning that took place on 28th May 1991 was in direct contravention of this article and possibly even illegal.
(e) As described above, The same situation occurred while my trial was being conducted, a situation which I would view as even more a serious breach of the above regulations, and a further embarrassment to the Australian Justice system.
See also article 14 Subsection 3F of the International covenant for Civil and Political rights, Which Stated: - To have free assistance of an interpreter if he cannot understand, or speak the language used in court.
How could my trial be fair and in accordance with this article when I did not have an interpreter and not one question was of me as to:
- Why I committed the offence.
- What provoked me to commit the offence.
- Why I retaliated in the way that I did.
- Generally I was not asked any question which could have been asked in my defence and therefore I lost any chances of defending myself and possibly abtaining an acquital."
As O52 r15(2) indicates, the grant of leave to file and serve a notice of appeal out of time requires the making out of "special reasons".
As the Full Court of this Court said in Jess v Scott (1986) 12 FCR 187 at 195:
"It should not be overlooked that r15(2) enables leave to be given 'at any time'; the 'special reasons' relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, somethng much less significant might justify leave where a party is a few days late. 'Special reasons' must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served."
A like view on the burden created by the passing of time is expressed in the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479.
For present purposes the approach I intend to take is that adopted by the Full Court of this Court in Jones v The Queen, (unreported) Federal Court, 17 August 1984, and to ask:
"First, are the reasons the applicant has advanced for his delay sufficient to excuse or, at least, to explain his delay so as to justify allowing him to institute an appeal out of time? Secondly, has the applicant demonstrated that his appeal may have sufficient prospect of success to make it just that he should now be allowed to proceed with it? (See Sukarno v Minister for Immigration and Ethnic Affairs, unreported decision of the Full Court 29 June 1984 at p.2.)."
Before turning to these matters directly I would note that counsel for the respondent by way of preliminary point submitted that Mr Kalaba's ground of appeal in fact raised a case which sought to have the plea of guilty set aside and, so conceived, the present application should be regarded as incompetent. The appropriate method, it was said, to set aside the plea was by way of proceedings in the Supreme Court of the ACT to that effect.
It is the case that an appeal can be brought against conviction notwithstanding a guilty plea: see Halsbury's Laws of Australia, Criminal Law 130-13975 and see the cases referred to in fn 5; see also Archbold, Criminal Pleading Evidence and Practice s366, 40th Ed, Sweet and Maxwell. I am not prepared for present purposes to hold that an appeal in this matter would be incompetent on jurisdictional grounds.
Turning now to the two questions I have posed. The only explanation given by Mr Kalaba for the delay is that, and I here quote from his affidavit of 5 June 1996:
"(c)When I was sentence on the 27th August 1991 on the same day and about two hours after my sentencing I asked Mr Pilkington my solicitor to lodge an All Grounds Appeal on my behalf. Mr Pilkington refused to do this until I had paid him $1000 which I did not have at that time. I submit to the Legal Aid Commission of NSW an application for Legal Aid together with a complete form of appeal to the Federal court of Australia. I have still not heard from legal aid."
He has suggested that the Legal Aid Commission may have had difficulty contacting him because of the circumstances of his frequent movement between prisons or places of detention. Mr Kalaba made no further legal application until late 1995 - this time to the ACT Legal Aid Review Committee. It was refused.
If it were necessary so to do I would be prepared to hold that, as no satisfactory explanation at all of so long a delay has been given, this of itself would be sufficient to defeat this application.
I am, however, of the view that the second question I have posed should also be answered in the negative. At the time of the hearings before Miles CJ, Mr Kalaba had legal representation as I have already noted. It did not then seem to his advisers necessary that he have the interpreter facility made available to him. I am not convinced that there is evidence before me to suggest that on full investigation, the absence of interpreting services may have worked such unfairness to Mr Kalaba as could lead to the setting aside of his conviction.
The matters of provocation raised are, in my view, equally ones which could not justify the setting aside of the convictions. Indeed I think it is appropriate to note that in his sentencing comments Miles CJ after referring to his compensation claim and the Wagga Wagga convictions commented of Mr Kalaba that:
"He regards himself as having exhausted all legal channels in relation to his compensation claim, and now resorts to extra-legal methods of promoting his cause. In this particular respect, he is no different from any other, who uses such extra-legal means to promote a cause, whether it be personal, political, financial or otherwise. To resort to crime in order to promote personal causes is not normally regarded as a mitigating factor."