Keenan v The Queen [2020] VSCA 105

1 The applicant seeks an extension of time in which to bring an application for leave to appeal against his conviction for a single charge of stalking. The conviction was entered on his plea of guilty. In order to succeed in any appeal against his conviction, the applicant needs to come within the principles that guide the Court where it is sought to set aside a conviction following a plea of guilty.[1]

2 For the reasons that follow, the applicant has no prospect of meeting that threshold. He must be held to his plea and there is no utility in giving him an extension of time to commence an application for leave to appeal.

3 It is convenient, at the outset, to observe the elements of the offence established by s 21A of the Crimes Act 1958 ('Crimes Act'). Section 21A(1) provides that a person must not stalk another person. Section 21A(2) provides that a person (the offender) stalks another person if the offender engages in a course of conduct which includes one or more of the forms of conduct specified in paragraphs (a) to (g), with the intention of causing physical or mental harm to the victim, including self-harm, or of arousing apprehension or fear in the victim for his or her own safety or that of any other person. The specified conduct includes contacting the victim by telephone or text message.[2]

4 The mental element is further amplified by s 21A(3), which provides that the offender also has the necessary intention to cause harm, if (a) the offender knows that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear;[3] or (b) the offender in all the particular circumstances ought to have understood that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear and it actually did have that result.[4]

5 Following a contested committal, the applicant was committed to stand trial on 27 November 2017. It appears that he was not represented at the committal, although a legal representative was appointed under the Criminal Procedure Act 2009 ('CPA') for the purpose of cross-examining the complainant as a protected person. The applicant sought and obtained legal aid for the trial and a firm of solicitors was appointed to act for him.

6 On 13 September 2018, an indictment was filed containing one charge of blackmail, one charge of theft and one charge of handling stolen goods.

7 On 12 November 2018, the first day of trial, the applicant, who was represented by counsel, agreed to plead guilty to a single charge of stalking. As will appear, the applicant, facing an indictment with three charges, instructed his counsel to make an offer to the prosecution that he would plead guilty to a single charge of stalking in breach of s 21A of the Crimes Act.

8 On that day, a fresh indictment containing that single charge was filed over under s 164 of the CPA, the applicant was arraigned before Judge Pullen and pleaded guilty to the charge.

9 On 15 November 2018, the matter resumed for the purpose of the plea. The applicant was present and again represented by counsel. The prosecutor tendered a prosecution opening, which was read in open court. It is convenient to refer to its content.

10 The complainant is an 'exotic dancer'. Between January 2014 and October 2015, the applicant attended 'Kittens', the venue where she worked, and spent between $300 and $900 on dances provided by the complainant, and her colleagues. They exchanged phone numbers but the complainant did not tell the applicant her home address.

11 In late 2015, the applicant intimated to the complainant that his money had essentially run out. Although he continued to visit the venue, he did not spend large amounts of money.

12 Subsequently, the complainant starting working at another venue in the city, which the applicant also attended a few times and was quite emotional. The applicant wanted to see the complainant outside the club and when she said 'No' he asked her 'Why?' and kept asking her 'Why?'

13 On 28 September 2016, the applicant texted the complainant saying: 'Hey ... there's a guy at Kittens that keeps asking me for personal information about you ... I don't think he's a friend of yours.'

14 On 14 November 2016, the applicant sent the complainant further text messages, saying:

(a) 'I'm really sorry about this as I have some bad but important news concerning you and your work. Can you give me a call on your next day off but not later than Friday?'

(b) 'I'm sorry because this will be upsetting. But there are some guys that hang around Kittens who are looking to locate you. They want money from you. I think they do this for a living'.

(c) 'I think they just rif raf scum that just try and take advantage of people. I don't know if they are connected to that other stuff that has happened there ... It all started out 6 weeks ago when one of them started asking me questions about you inside (he must have made a connection between me and you from when we were there) ... I realised he was trying to get information - don't worry, I would never give anyone anything. He then tried to say you owe him money which I knew you wouldn't have.'

(d) 'I think they just do this for a living. They are saying that when they locate you they will make public your personal information. I didn't get a good look at most of them outside. But the guy who has been coming up to me has dark hair, average height, European looking, 25-30 years old'.

(e) 'So sorry to hit you with all of this. I hoped he would go away. I made sure I wasn't followed and went in to see you on Saturday night afterwards but I didn't know how to tell you. I don't know whether or not they know where you now work.'

15 In response to a text from the complainant, the applicant replied: 'I don't think they know your name. They claimed that they have followed you as far as Queens Parade but could be making it up. They agreed to stop trying to find out where you live until at least next Saturday. I said I would speak to other dancers and try to contact you but made no promises.'

16 Between 3.00pm on 27 November 2016 and 10.00am on 28 November 2016, the complainant's rear number plate was stolen from her car, which was parked in her driveway. The prosecution summary asserted that the number plate was stolen by the applicant.

17 On 6 December 2016, the complainant found two 'business cards' in her letter box. On one side in large text they stated: '[Stage name of complainant], Hot, young Asian. 24 hrs/7 days. [Complainant's home address]'. On the other side of the card was a diagram of the residential unit block in which the complainant lived at that time. Some of the complainant's neighbours also received these cards. The prosecution summary asserted that the cards were made by the applicant using his home printer.

18 On the same day, the complainant made a complaint to police and provided the 'business cards' to them. The complainant texted the applicant, asking whether he had had further contact with 'those guys'. The applicant texted in response: 'Hi. Yes, I ran into that main guy in King St the other night. He claimed that they have located your home address and that they going to make it public. I gave him some money and asked him to put that on hold for 2 weeks'.

19 On 14 December 2016, the applicant texted the complainant, saying: 'Hey, how are you? Is Diesel missing a number plate? ... One of those guys handed me 2 things, one of which was a registration plate. He claimed it was off your car. I'm not sure if it's one of Diesel's or not.' The reference to 'Diesel' was a reference to the complainant's car.

20 The complainant asked what the second of the two things mentioned by the applicant was, to which he replied:

It was like a business card, which doesn't put you in a good light, with an address on it. I've worked out a way to get rid of these people. I'm sure we can get these people to move on to the next dancer. I've been in contact with my former neighbor. He knows some people. We can pay a sum to these dickheads but it won't cost you anything personally. We can give that scum a minimum amount, being money you would have paid the ATO, then reduce the amount you advise the ATO you have earned. These associates can come with me at the handover so that that is the end of the matter. Are you ok?

21 The complainant responded: 'I'm letting the police handle it.'

22 On 24 December 2016, the complainant found further 'business cards' in her letter box and those of her neighbours, which were similar to the first set. On 29 December 2016, the complainant inquired of the applicant by text message whether he had had any more contact from 'those guys', to which he texted in response: 'Not since they handed me those items and made more stupid threats.' He said the 'further threats' were 'That they're going to distribute those cards in the new year'. The complainant inquired how much money they were asking for and the applicant texted that they were seeking $12,000 and that he could 'help out'.

23 Police executed a search warrant at the applicant's address on 25 January 2017 and seized the stolen number plate, a mobile phone, two printers and cables, a computer and 'business cards' similar to those handed to police by the complainant on 6 and 29 December 2016.

24 Returning to the sequence of events, after the prosecution summary was read in Court, the applicant's counsel made submissions in mitigation during the course of which he observed that the prosecution opening was 'a very fair opening'. Counsel submitted that a community correction order ('CCO') of two years with 400 hours was the appropriate disposition.

25 Faced with a dearth of material about the applicant, but having been told that he was living in a car, the judge was understandably concerned about potential issues of compliance in the event that a CCO was imposed. The judge adjourned the plea to enable the applicant to obtain a report of a psychiatrist or psychologist and other supporting material.

26 On 20 February 2019, the applicant's then solicitor emailed the County Court to advise that he and counsel could no longer act for the applicant, as the applicant sought to contest elements of the agreed summary.

27 The plea hearing resumed on 26 February 2019 and was adjourned as the applicant appeared without legal representation. On 27 February 2019, the applicant told Judge Pullen that he was seeking to transfer the file to a new firm of solicitors. The judge indicated that the applicant's attitude to the prosecution summary may give rise to either an application to change his plea or, alternatively, a contested hearing on the facts on which the plea proceeded.

28 The matter was mentioned before Judge Pullen on 6, 8, 13 and 22 March 2019 for the purpose of seeing whether the applicant had retained legal assistance and identifying when the matter could be completed. On 22 March 2019, the judge indicated to the applicant that she was proposing to have him assessed for a CCO, to which the applicant replied that he would appreciate if that could be done.[5]

25 March 2019 resumed plea hearing: Judge Pullen

29 The plea resumed on 25 March 2019, by which time the applicant had filed with the Court a report of Dr Lester Walton. The judge noted that the applicant contended that some parts of the prosecution opening were factually incorrect but that it was unclear whether this meant that the applicant was seeking to traverse the plea, which would require an application for leave to change his plea, or was seeking to contest some of the facts on which the prosecution relied in relation to sentence. Her Honour identified, as two examples, that the applicant maintained that he had not stolen the number plate and had not printed or distributed the 'business cards'.[6]

30 Addressing the applicant, the judge summarised the position by noting that he had pleaded guilty to an agreed summary through his counsel, he had since attempted to retain four different firms of solicitors who had not agreed to represent him and he had told Dr Walton that he was going to appeal any sentence and appeal any finding of guilt.[7] In those circumstances, the judge identified two options: the first was that the applicant apply to change his plea to not guilty which, she told the applicant, would require sworn evidence from the applicant's former counsel.[8] The second course would involve the applicant admitting the offence of stalking but taking issue with some facts in the prosecution summary in respect of which the judge would hear evidence and make findings.[9]

31 During the course of the hearing, the judge asked the applicant directly whether he wanted to change his plea. The following exchange occurred:

Judge ... Do you want to therefore, seek to change your plea? Put aside the issues, do you just say, 'I didn't do this stalking'?

Applicant I pleaded in good faith to, I considered s 21A and I pleaded in good faith, as to the, as to the wording of that section.

Judge Yes, but then the Crown then want to rely upon material to support that. So, what do you say is wrong with the summary as it currently is? Because they set out the number plates, the business cards, etc, etc ... What do you take issue with there? In the whole summary? The whole agreed summary?

Applicant Yes, it's mainly those two points but I'm happy to ... accept the court's ruling in that matter.[10]

32 A little later on in the hearing, the judge told the applicant that the prosecution sought to rely upon the number plate being at the applicant's home and the 'business cards' as part of the stalking charge.

Judge ... once the Crown start hiving all those things off, they don't have a stalker. They don't have the proof of the charge and I certainly couldn't sentence on the basis of something that was incorrect in law.

Applicant I would say that the proof of the charge is in the communications least. The text messages.

Judge All those text messages you sent, and she said that she'd gone to the police and - but you were - so you'd say they were okay?

Applicant I would say that that constitutes stalking.[11]

33 The matter was again mentioned before Judge Pullen on 26 March 2019 and the judge again identified for the applicant the two options of maintaining his plea of guilty or having a contested plea. In the event of the latter, the judge indicated that the matter would proceed before a different judge.

34 The matter was then adjourned before Judge Cannon on 22 July 2019.

35 On that occasion, the judge asked the applicant the basis on which he had pleaded guilty. The applicant replied:

Applicant I pleaded guilty on the, on the communications themselves, the fact that I was in communication with the complainant, and I consider that that may contravene s 21A in a context. But there are also extenuating circumstances, your Honour, on the trial commencement date on the morning of 12 November, and I can provide evidence in this regard. But when I arrived at court for that trial, I found that counsel, my counsel wasn't prepared to go, wasn't ready to go.[12]

36 The judge then addressed the specific elements of the offence in s 21A in the following exchange:

Judge All right. So, Mr Keenan, are you saying that having looked at 21A, which not only involved a person, and amongst other thing, a person as you see there, 21A, a person stalks another person if the offender engages in a course of conduct which includes any of the following, you see all the various things there[?]

Applicant Yes.

Judge But it also has to be with the intention of causing physical or mental harm to the victim.

Applicant Yes.

Judge Or of arousing apprehension or fear in the victim for his or her own safety.

Applicant Yes, Your Honour.

Judge So do you admit that that's what you did in communication with the complainant, that you had that intention to arouse apprehension or fear in her?

Applicant No, I did not have that intention but I think 21A goes on to say that if I should've known, then I may still be guilty, despite not having that intention.

Judge All right. So you pleaded guilty to stalking. In your mind, you pleaded guilty, you say on the basis that you had had continual contact with the complainant and you were in a position to warn her about other people who wanted to extort money from her and to ruin her reputation. You say that you did that not with the express intention of causing apprehension or fear in the victim for her own safety, but you say that you ought to have known that?

Applicant Yes, Your Honour, that's correct.[13]

37 The applicant refused to accept that he had made up the story that people were pursuing the complainant, stolen the number plate or printed the 'business cards'. The prosecution indicated that it would not accept a plea of guilty on that basis.

38 The applicant indicated that he understood the difficulty in changing his plea but ultimately the matter was adjourned for a change of plea hearing.

August 2019: Applicant emails County Court insisting he wants to maintain plea of guilty; matter mentioned before Judge Cannon

39 Shortly thereafter, the applicant emailed the Court saying that he did not wish to change his plea. The matter was again mentioned on 2 August 2019 before Judge Cannon. The judge noted the conundrum where the applicant had pleaded guilty on a particular basis, the prosecution summary was then drafted, the applicant disagreed with facts which the prosecution regarded as essential but refused to change his plea. The applicant told the Court that he was 'not competent' to change his plea because it was not something that he believed in and because he 'would have to make something up in order to support an application'.[14] The judge indicated that in light of the applicant's acceptance that his text messages contravened s 21A it may have been possible for the Court to accept the plea without making findings of fact in relation to the matters of contest, namely, that he had fabricated the information conveyed to his victim, that he stole the number plate and that he had created the 'business cards'.

40 The matter was again adjourned in order to determine whether a suitable factual basis could be agreed for the purpose of the plea and possible sentence.

29 August 2019 final plea hearing: Judge Cannon

41 The matter returned finally on 29 August 2019. The prosecution accepted the applicant's plea of guilty on the basis indicated by the applicant on the previous occasion, namely, that the text messages were sufficient to establish a contravention of s 21A. The parties accepted that the number plate was stolen but the prosecution did not press the allegation that the applicant had stolen it. The prosecution maintained their position in relation to the 'business cards' but it was accepted that the judge was not required to resolve that factual matter.

42 During that hearing, the applicant told the judge that he accepted that he could not restart the plea hearing. In relation to the impact of his conduct on the complainant, the judge asked the applicant whether, having seen her victim impact statement, he accepted that the complainant was frightened and traumatised by what she was being told. The applicant responded as follows:

Applicant Yes, Your Honour, as per the last sentence, I acknowledge that the communications must have most likely given rise to apprehension and as my learned friend pointed out, that dot point on the following page, is consistent with what I put forward earlier on the plea, Exhibit 1.[15]

43 In her reasons for sentence, the judge recorded that the matter was proceeding on the basis that the applicant's position was that the threats and theft of the number plate as well as the creation and distribution of the 'business cards' were performed by others, not by the applicant.

44 However, the judge said that the applicant accepted that by repeatedly contacting the complainant and by conveying the 'messages', he had engaged in stalking conduct with the relevant intention as defined in s 21A. Her Honour noted that the applicant accepted that in repeatedly communicating with the complainant in the way that he did, he accepted that in all the circumstances he ought to have understood that engaging in that conduct would be likely to cause harm or arouse apprehension or fear in the complainant and that his conduct had that result.

45 The judge said that she sentenced the applicant on that basis.

46 The applicant raises four proposed grounds of appeal:

(a) the indictment was invalid because it was filed outside the time period imposed by s 163(1)(a) of the CPA and the Court did not extend or abridge the time period;

(b) there was a substantial miscarriage of justice because the evidence on the plea was not sufficient to satisfy the requirements for a finding of guilt. In particular, the judge did not make a finding in relation to the requisite intention and there existed no causal link between the applicant communicating with the complainant via text message and that communication actually resulting in physical or mental harm to the complainant or arousing apprehension or fear in her for her own safety or that of any other person;

(c) the prosecution involved an abuse of process because of the use of contrived, manufactured or fabricated evidence. This allegation related to the evidence which the prosecution had originally relied on to establish that the 'business cards' were produced by a printer found in the applicant's home; and

(d) the combined effect of the first three grounds establishes a substantial miscarriage of justice.

Principles: Extension of time and overturning a plea of guilty

47 Before dealing with the grounds of appeal, it is appropriate to refer to the principles that this Court must apply in considering whether to grant an extension of time for an application of leave to appeal and where an applicant seeks to set aside a conviction following a plea of guilty.

48 The law relating to the grant or refusal of an extension of time was recently summarised by this Court in Madafferi v The Queen:

The applicant carries the burden of persuading this Court that an extension of time should be granted. When considering the application, it must be acknowledged that time limits exist for sound reasons. Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition (consistently, of course, with the imperative of correcting substantial miscarriages of justice). The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal. Although the exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances of the case, the length of the delay - and the reasons for it - and the prospects of success should the extension be granted, are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise. Thus, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the court may incline towards granting an extension. Where the merits of the proposed appeal are very poor, however, even a satisfactory explanation for the delay might not justify an extension. The discretion must, as we have said, be exercised according to the individual facts of each case. [16]

49 The principles on appeals against conviction after a plea of guilty were helpfully summarised by this Court in Gurappaji v The Queen.[17]

50 The organising principle is that the applicant must demonstrate a substantial miscarriage of justice. Applications to set aside a conviction on the basis that a plea of guilty should be set aside are approached with 'caution bordering on circumspection' because of the high public interest in the finality of legal proceedings and the principle that a plea of guilty by a person in possession of all the facts is normally taken to be an admission of each of the necessary legal elements of the offence.[18]

51 Without being exhaustive, a miscarriage of justice may be established where:

(a) the appellant did not appreciate the nature of the charge, or did not intend to admit that they were guilty of it; and

(b) upon the admitted facts they could not in law have been convicted of the offence charged.[19]

52 A person may enter a plea of guilty even though they do not believe that they are guilty of the offence for pragmatic reasons, such as, to avoid worry, inconvenience or expense, avoid publicity, to protect family or friends or in the hope of obtaining a more lenient sentence. But a plea entered on such a basis will not be set aside unless a miscarriage of justice is shown. Advice, even strong advice to plead guilty, does not undermine the plea. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.

53 Section 163 of the CPA provides that if a person is committed for trial in respect of an offence other than a sexual offence, the DPP or a Crown Prosecutor may file an indictment within six months after the date of committal.

54 Section 247 provides that the court, by order, may extend or abridge any time fixed by or under Chapter 5 of the CPA or by any order extending or abridging time made under s 247 if the court considers that it is in the interests of justice to do so.

55 The respondent accepts that the indictment was not filed within the time stipulated and no order was made by the County Court extending the time. The applicant contends that the conviction is invalid for that reason. If the jurisdiction of the County Court to arraign the applicant depended on compliance with the time limit in s 163, that would be a powerful factor for allowing the applicant to challenge the conviction.[20] However, compliance with s 163 did not go to jurisdiction.

56 Section 5 of the CPA provides that a criminal proceeding is commenced by filing or signing a charge-sheet in accordance with s 6; filing a direct indictment in accordance with s 159; or by a direction under s 415. Where a proceeding is commenced by filing a charge-sheet, the CPA provides for the steps that are required to be taken including, for indictable offences, by way of committal.

57 Where a person is committed for trial, s 159(1) of the CPA provides that the DPP or a Crown Prosecutor in the name of the DPP may file an indictment. An indictment may be filed in either this Court or the County Court.[21] The filing of an indictment, other than a direct indictment,[22] does not commence a new criminal proceeding against the accused.[23]

58 Section 163 provides a time limit for the filing of certain indictments and, relevantly, authorises the DPP or a Crown Prosecutor to file an indictment within six months after the date of committal.[24] Section 156 provides that nothing in Chapter 4 of the CPA (which relates to committal proceedings) affects the power of the DPP (amongst other things) not to take within the period prescribed by s 163 any step mentioned in that section in relation to a charge on which a person was committed for trial.

59 Section 164(2) provides that nothing in s 163 prevents the filing of a 'fresh indictment'. A 'fresh indictment' means an indictment which includes a charge for the same offence contained in a previously filed indictment or a related offence.[25]

60 As already noted, in the present case, a fresh indictment was filed over alleging the single charge of stalking. The terms of s 164 alone provide a sufficient reason why the failure to comply with s 163 is not fatal to the conviction.

61 Section 210(1) of the CPA provides that a trial commences when the accused pleads not guilty on arraignment in the presence of the jury panel in accordance with s 217. Section 211 provides the time limits for commencing a trial for offences other than sexual offences and there is a counterpart in s 212 for sexual offences.

62 The filing of an indictment within the time limit set by s 163 was not a jurisdictional prerequisite for the exercise of the power of the Court to arraign an accused, entertain a plea and enter a conviction on a plea of guilty. That is so for the following reasons.

63 Whether compliance with a statutory requirement is essential for the exercise of jurisdiction is a question of statutory construction. The answer to the question is not found by ascribing a label such as mandatory or directory.

64 A learned author has discerned five factors that may fall for consideration under the Project Blue Sky approach: (1) whether the statutory requirement merely regulates the exercise of a function already conferred or is, rather, an 'essential preliminary' to the exercise of a function; (2) the nature of the requirement, and, in particular, whether it has a 'rule-like quality' that can easily be identified and applied; (3) the public inconvenience that would result if non-compliance means that the decision was invalid; (4) whether there are any other means of giving effect to the relevant requirement, other than by invalidating a decision that does not comply with that requirement; and (5) the extent and consequences of the non-compliance in the particular case.[26]

65 With the key factors in mind, we would make the following observations. First, s 163 is expressed in permissive, rather than mandatory terms, providing that the DPP may file an indictment within six months. Second, filing an indictment under s 163 is not an initiating process. It does not commence the criminal proceeding but rather represents a procedural step within the criminal proceeding. Third, s 163 does not impose a requirement on the Court, nor does it expressly condition the exercise of any power. Fourth, the CPA does not provide for the consequences in the event of non-compliance. Fifth, the time limits do not apply where a fresh indictment is filed under s 164. Sixth, even where the CPA directs itself to the timing of a trial in mandatory terms, as in s 212, which provides that a trial must commence within certain timeframes, such time limits are not jurisdictional.[27] The time limit is extendable even after it has expired and inevitably would have been extended had the issue been raised by the applicant.[28]

66 Although s 163 is of a rule-like quality, the other factors tend against the timing requirement being jurisdictional. Its purpose is not to create rights or enforceable limitations on the jurisdiction of the Court but to provide for the further progress of the criminal proceeding. The non-compliance did not invalidate the conviction of the applicant or the sentence imposed.

68 The applicant submits, under cover of his second proposed ground, that the plea of guilty should be set aside because there was insufficient evidence to support the conviction. He relies, in particular, on a complaint that the judge did not make a finding regarding the intention required to be established under s 21A(3)(b).

69 Before addressing the substance of that complaint, it is necessary to note that, in his written case, the applicant asserts that counsel who appeared for him before Judge Pullen when he was arraigned and pleaded guilty on 12 and 15 November 2018, was incompetent in his representation leading up to the trial. He alleges a failure to 'follow through with the subpoenas issued by the Court', obtain particulars, follow instructions, meet with the applicant, communicate with the applicant and generally prepare for trial. In accordance with the general practice of the Court, trial counsel was provided with a copy of the written case and has filed an affidavit rebutting those allegations.

70 There is no specific ground alleging incompetence of counsel and, for the reasons that follow, the allegations are irrelevant to the issues we have to decide. It also follows that the affidavit of counsel was not relevant to an issue in the application and, as we indicated at the hearing, we have not had regard to it. We would note that the allegations were denied.

71 As the chronology set out above reveals, the plea before Judge Cannon proceeded on the basis that the factual matters contested by the applicant would be noted but would not be the subject of the findings of fact made by the judge. Further, on a number of occasions, the applicant reiterated his willingness to plead guilty to the charge on the basis he outlined. He was given numerous opportunities by both Judge Pullen and Judge Cannon to apply to change his plea. On each occasion, he declined to take that course.

72 The effect of the plea of guilty is that the applicant admitted the elements of the offence. As the summary and extracts from the various hearings in the Court below demonstrate, the applicant's plea of guilty responded precisely to the elements of the offence in s 21A.

73 By his plea of guilty, the prosecution were relieved of the obligation to prove the elements of the offence and the judge was not required to satisfy herself as to the sufficiency of the evidence. It is clear that the judge was conscious of the need to ensure that the applicant understood the elements of the offence and the effect of his plea, and the need to identify the factual basis on which the applicant pleaded. It is also clear that the judge was conscious of the need to ensure that the factual basis on which she sentenced was sufficient to make out a contravention of s 21A.

74 We are entirely satisfied that the applicant was aware of the elements of the offence, and voluntarily and deliberately pleaded guilty. It is clear from transcript of the hearings below and having heard the applicant in this Court that the applicant has, and had at the relevant time, a sufficient understanding of the elements of the offence of stalking and of the prosecution case.

75 We are also satisfied that the facts on which the judge proceeded, when combined with the plea of guilty, provided a basis to convict the applicant on a charge under s 21A. His conduct was not in dispute and he accepted both the likely and actual impact that his conduct had in relation to the complainant. This was not a case where the agreed facts were incapable of establishing the offence.

76 The applicant submitted that he was in no position to plead to that part of the offence which was directed to the impact of his conduct on the state of mind of the complainant. There is no merit in that submission. By his plea of guilty, he accepted that his conduct would be likely to cause mental harm to the complainant or arouse apprehension or fear for her own safety and that it actually did have that result.

77 As he frankly conceded in this Court, he instructed Counsel to make an offer to the prosecution that he plead guilty to a single charge of stalking in return for the prosecution not proceeding with the three charges on the indictment, which included blackmail. At the time that he did so, he was aware of the elements of s 21A. The exchange that he had with Judge Cannon about the basis upon which he pleaded reveals a relatively developed understanding of the issues and fully explains why the applicant chose to plead guilty to the charge.

79 By ground 3, the applicant contends that the forensic evidence, which the prosecution indicated it would have called on at the trial to establish that the 'business cards' had been produced by the printer found at his premises, was tainted. He contends that the relevant forensic officer contrived the test result by manipulating settings on his printer in order to establish a match between his printer and the 'business cards'.

80 By the time the applicant was arraigned and pleaded guilty before Judge Pullen, the prosecution had provided evidence of the forensic scientist which the applicant believed was improperly manufactured. At that point, he had the opportunity to contest that evidence at trial. He did not take that course.

81 Although it had been asserted in the prosecution summary, whether the applicant had printed the 'business cards' was not an issue that fell for determination on the plea. As things transpired, the prosecution did not seek to establish as an essential aspect of its plea that the applicant had printed the 'business cards'. With the acquiescence of the parties, the judge proceeded on the basis that she would note the allegations of the prosecution that the applicant has stolen the number plate and printed the 'business cards', but she did not resolve those allegations and they formed no part of the factual matrix on which the applicant pleaded guilty and was sentenced.

82 In the circumstances, proposed ground 3 provides no basis to traverse the plea of guilty.

83 Ground 4 relies on an aggregation of grounds 1 to 3 in the event that they are not individually sufficient to amount to a miscarriage of justice. As none of those grounds have been established, there is no reason to consider this ground.

84 No arguable grounds have been advanced to traverse the applicant's plea of guilty. That being so, any application for leave to appeal could not succeed and it would be futile to extend the time in which to bring that application. Accordingly, the application for an extension of time must be refused.

[1] Gurappaji v The Queen [2018] VSCA 187.

[2] Crimes Act s 21A(2)(b).

[3] Ibid s 21A(3)(a).

[4] Ibid s 21A(3)(b).

[16] [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA) (citations omitted).

[17] [2018] VSCA 187.

[18] Ibid [9] (Priest, Beach and Weinberg JJA), citing R v BDC [2018] QCA 132.

[19] Ibid [6] (Priest, Beach and Weinberg JJA), citing R v Forde [1923] 2 KB 400, 403.

[20] R v Symons [1981] VicRp 33; [1981] VR 297.

[25] Ibid s 164(1). 'Related offences' defined in s 3 of the CPA to mean offences that are founded on the same facts or form, or a part of, a series of offences of the same or a similar character.

[26] Graeme Hill, 'Applying Project Blue Sky - When does breach of a statutory requirement affect the validity of an administrative decision?' [2015] AIAdminLawF 13; (2015) 80 AIAL Forum 54, 55-69.

[27] Director of Public Prosecutions v BDX [No 2] (2010) 27 VR 536 [2010] VSCA 134; Davis (a pseudonym) v The Queen (2016) 55 VR 1; [2016] VSCA 272.

[28] MAC v The Queen (2012) 34 VR 193; [2012] VSCA 19.