Kumar v The Queen [2020] VSCA 103

1 Amit Kumar, who is unrepresented, applies for an extension of time within which to make an application for leave to appeal against conviction.

2 Since it is plain that the application for leave to appeal against conviction is hopeless, it would be futile to grant an extension of time. The application for extension of time must be refused. Our reasons follow.

3 Upon arraignment in the Supreme Court on 11 April 2018, the applicant pleaded not guilty to contravention of a family violence safety notice intending to cause fear for safety[1] (charge 1); aggravated burglary[2] (charge 2); attempted murder (charge 3); alternatively, intentionally causing serious injury[3] (charge 4); and, alternatively, recklessly causing serious injury (charge 5).

4 Following a trial, at which the applicant did not give evidence, a jury acquitted the applicant of attempted murder, but found him guilty of the family violence charge, aggravated burglary and intentionally causing injury (making it unnecessary to take a verdict on the charge of recklessly causing serious injury). The applicant subsequently pleaded guilty to the summary offence of committing an offence whilst on bail.[4]

5 On 18 May 2018, the trial judge imposed a total effective sentence of seven years' imprisonment on the applicant,[5] with a non-parole period of four years.

6 More than a year after he was sentenced, the applicant filed a notice of application for leave to appeal against conviction dated 9 June 2019 ('the conviction notice'). Subsequently, he filed an application for extension of time within which to make application for leave to appeal against conviction, dated 9 July 2019. The ground of the application was expressed as follows:[6]

The reason I failed to serve a notice within the prescribed time and the ground(s) upon which I make this application are: (I was of the sincere understanding that Victoria legal aid was addressing my appeal on my behalf and have only recently been advised to the contrary.

Therefore I need to act on my own behalf and request an extension of time accordingly.

7 In support of the extension of time, the applicant filed two affidavits. The first, affirmed by the applicant on 9 July 2019, merely repeated the ground for extension of time; and the second, affirmed 18 July 2019, set out a ground of appeal formulated as follows:

Gross lack of evidence leading to incorrect conviction.

8 The conviction notice was curiously expressed. It stated that the ground upon which the applicant sought leave to appeal was:

Gross lack of evidence, and victim impact statement, leading to incorrect conviction.

Later in the document, however, under a heading, 'Grounds of appeal', there were two further 'grounds', expressed as follows:[7]

Q.C [named] don't have best interest to defend me while trial. I believe he was doing favour to DPP reason DPP hire him to prosecute a murder case. On the same day I been sentenced (18 May 2018). It was not fair trial.

There was error to make verdict by jury it was unreasonable on the basis of evidence provided in trial. The Judge has hold verdict to find out how they find me guilty of intensiouly Causing Serious injury and Q.C [named] also agree that its wrong verdict.

9 Although not accompanied by a written case, the conviction notice contained a 'Written Statement' in the following terms:

There was no weapon, no finger prints, no DNA, no damage on door or forcefully entry into house, according to doctor no injuries was life threatening, 2 eye witness given statement accused never enter into house, there are 3 statements from victim and they all are different, there was no admission on phone records also.

There then follows what is styled, 'Schedule of Evidence', setting out a large number of references to page numbers (none of which correspond to any actual page of the trial transcript), unaccompanied by any description of the relevant evidence.

10 Doing the best we can to distil the applicant's complaints, we consider that the applicant's materials probably raise two principal contentions: first, that he was not properly or competently represented by counsel; and, secondly, that the verdicts on the charges of aggravated burglary and intentionally causing serious injury are unsafe and unsatisfactory.

Considerations relevant to granting or refusing an extension of time

11 As we have indicated, since the proposed application for leave to appeal against conviction enjoys no prospects of success, it would be futile to grant the extension of time that is sought.

12 So that it cannot be said that we have overlooked the considerations relevant to the grant or refusal of an extension of time, however, it is convenient to set out a passage from Madafferi, in which the governing principles were summarised:[8]

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).[9] 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.[10] 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,[11] the length of the delay - and the reasons for it[12] - and the prospects of success should the extension be granted,[13] are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise.[14] 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.[15] The discretion must, as we have said, be exercised according to the individual facts of each case.[16]

13 We also note that the affidavit material relied upon in support of the application for extension of time is wafer thin. Beyond asserting that it was his 'sincere understanding' that Victoria Legal Aid ('VLA') was 'addressing' an appeal on his behalf, and that he has 'only recently been advised to the contrary', the applicant provided no material which could have supported the genuineness of the asserted belief.[17] Certainly no supportive material was forthcoming from VLA.

14 Before turning to a consideration of the proposed application for leave to appeal, it is convenient to provide an overview of the relevant facts.

15 In so doing, we can do no better than to adopt the trial judge's summary in his reasons for sentence:[18]

Amit Kumar and Amy Hemming began a de facto relationship in around early-2013. Ms Hemming gave birth to their daughter, Mattia, a year later. But, within a further seven months, by November 2014, the couple had separated. They had a brief attempt at reconciliation in April 2016, but that was unsuccessful.

Mr Kumar was distraught. He still loved Ms Hemming and could not accept that their relationship was over. He became obsessive. He created an online profile, with another person's picture, so that he could chat with Ms Hemming anonymously. Also, after finishing his shift driving taxis, on occasions, he sat out the front of her house watching people come and go. Not only was he pining over unrequited love, but he was also terribly jealous of any man that Ms Hemming might be seeing.

In that state of mind, on 8 June 2016, Mr Kumar went to Ms Hemming's flat in Caulfield East. She was in the process of moving in. At some point, Mr Kumar pushed Ms Hemming down and grabbed her car keys and mobile phone. He looked through her phone and found that she had been communicating with another man on the internet. He threatened to go to that man's house and kill him. Ms Hemming reported this behaviour to the police.

Later that day, police arrested Mr Kumar and charged him with breaching a family violence intervention order that had been imposed on him as a result of his behaviour during the break-up. He was also served with a fresh family violence safety notice.[19] The new notice included conditions prohibiting him from committing 'family violence' and being within 20 metres of Ms Hemming or within 200 metres of her address. He was released on bail.

Undeterred, two days later, on the evening of 10 June 2016, Mr Kumar went to Ms Hemming's flat again. He drove there in a friend's car. When he arrived, he became aware that Ms Hemming had a male guest inside, who turned out to be Muhammed Idrees. Ms Hemming and Mr Idrees had been in a brief relationship in 2012 and were catching up for dinner. They were sitting in the lounge room talking, when they heard Mr Kumar outside, who was by now in a jealous rage. Despite not knowing Mr Idrees, Mr Kumar was making threats and yelling things like, 'He's married and has kids'. Ms Hemming rang the police. Mr Kumar banged on the window, eventually breaking it, causing shards of glass to fall inside the flat. He also threatened to kill Mr Idrees.

While this was occurring, Mr Idrees unlocked the front door so that he might escape. Mr Kumar then forced the door open and entered the flat, uninvited, repeatedly saying to Mr Idrees, 'I will kill you'.

Once inside, Mr Kumar picked up a large piece of broken glass from among the pieces on the floor beneath the window he had shattered. He tried to strike Mr Idrees to the head with the glass, but the blow did not connect because Mr Idrees blocked it. He then picked up two smaller shards of glass, one in each hand, and repeatedly slashed at Mr Idrees's face, chest and arms, causing gashes to those areas. At one point, Mr Idrees cut the inside of his own hand by grabbing one of Mr Kumar's hands in an attempt to stop him.

Eventually, when it was obvious that Mr Idrees was bleeding heavily, Mr Kumar stopped slashing. He threw the glass on the floor, removed his shirt (inexplicably) and then ran away. Mr Idrees gave chase to just beyond the end of the driveway of the block of flats but returned to Ms Hemming's premises because he felt dizzy - presumably, as a result of blood loss.

Mr Idrees was taken to hospital, where spent three days. He had suffered two wounds to his left cheek, and others to his neck, behind his ear, on his chest, his arm, his snuff box and the inside of his hand. All except the last wound required stitching during surgery. One of the wounds to the cheek was deep enough to damage the muscles and nerves, but they were repaired. The blow to the snuff box caused a cut through his sensory branch and into the joint of his thumb but did not damage tendons. ...

At about 10.18 pm on the evening of these events, Mr Kumar spoke to his former wife Seema Seema. He said that he had 'punched someone' at Ms Hemming's house. He said he went there because he got a call from this man, who said he was 'going to [Ms Hemming's] house and was going to fuck her' and that, 'If you have the guts, come and stop me'. Mr Kumar also said, 'I love Amy and I couldn't control myself, I couldn't control my anger. That's why I went there'. He also told her that his daughter Mattia 'was in bad shape and she was not wearing any clothes and it's winter out there'.

16 As we understood it, the applicant asserted in writing that his trial was 'not fair' since his counsel did not have his 'best interest[s]' in mind, and was 'doing a favour' for the DPP because the DPP had engaged him to prosecute a murder trial. During the hearing of his applications in this Court, we asked the applicant specifically whether he maintained that his trial was not fair because trial counsel did not have his best interests at heart. The applicant said that he did. He added that perhaps his counsel was 'distracted' by preparing for the murder trial.

17 An examination of the record of the trial demonstrates that these assertions are wholly bereft of merit. Indeed, it is plain that the applicant was the beneficiary of a defence of very high quality. Thus, by way of example, trial counsel successfully argued in pre-empanelment submissions that parts of the applicant's record of interview with police, that the prosecution sought to rely on as lies amounting to incriminating conduct, should be excluded from evidence. Thereafter, his cross-examination of prosecution witnesses was, in our judgment, relevant and effective. And in a comprehensive final address, counsel was astute to highlight inconsistencies and deficits in the evidence adduced by the prosecution, and made pointed and persuasive submissions directed to the applicant's intention. Significantly, in circumstances in which the applicant did not give evidence, counsel was successful in securing his acquittal on the attempted murder charge, notwithstanding evidence that he had threatened to kill Mr Idrees.

18 Insofar as the applicant seems to harbour notions that it was inappropriate for his counsel to accept a brief to prosecute at a time proximate to his own trial, it may be that he is unaware of the fact that members of the Criminal Bar commonly accept briefs both to defend and to prosecute without in any way compromising their ethical obligations. It is scurrilous for it to be suggested that counsel did not properly defend the applicant because he had accepted a brief to prosecute a murder trial.

The complaint that the verdict is unreasonable

19 The applicant contended in writing that the jury's verdict was an 'error', and 'was unreasonable on the basis of evidence provided in trial'. In fleshing out the central contention that the verdict was unreasonable, the applicant asserted:

• fourthly, there was 'no damage on door' or evidence of a forceful entry into Ms Hemming's premises;

• fifthly, the medical evidence was that Mr Idrees' injuries were not life-threatening;

• sixthly, two eye-witnesses stated that the applicant did not enter the premises;

• seventhly, Mr Idrees made three statements, and 'they all are different'; and

• eighthly, the applicant made no admissions in telephone conversations.

Asserted absence of fingerprints, DNA, weapon or damage to door

20 As we followed his arguments - both written and oral - the applicant sought to cast doubt on his conviction for aggravated burglary on the basis that there was no damage to the door of Ms Hemming's unit, the absence of any damage being inconsistent with there having been forced entry. And as we understood him with respect to the conviction for intentionally causing serious injury, the applicant sought to impugn the jury's verdict on the basis that there was no DNA or fingerprint evidence to establish that he had used a weapon.

21 By its terms, charge 2, aggravated burglary, alleged that the applicant 'entered as a trespasser at part (sic) of a building known as [the address of Ms Hemming's unit] with intent to commit an offence involving an assault to a person therein and at the time of entering a person was then present in that part of the building and the [applicant] knew that a person was then so present'. As to charge 4, although the charge did not contain particulars of how the alleged serious injury was caused, the prosecutor opened the circumstances leading to that charge as follows:

Muhammed Idrees will tell you that ... he unlocked the front door with the intention of running from the apartment but the [applicant] climbed down from the window and moved towards the front door. The [applicant] entered through the front door and armed himself with a large shard of glass and then hit Muhammed [Idrees] on the head with the glass, and at this time was yelling to Muhammed [Idrees] in Hindi that he was going to kill him. The [applicant] then discarded the large piece of glass and picked up two smaller pieces of glass. Muhammed will tell you that the [applicant] used those two pieces of glass to stab him on the left side of his face, on the left side of his neck and his chest, and as he was doing that continued to shout in Hindi that he was going to kill him. Muhammed [Idrees] will tell you that he tried to grab one of the shards of glass to halt the attack upon him and as a result, he sustained a wound to his right hand. ...

22 The applicant sought to rely on the prosecution's acceptance at trial that there was no damage to the doorjamb of Ms Hemming's unit. We do not regard that acceptance, however, as impinging upon the correctness of the jury's verdicts. In our view, there was ample evidence to establish, first, that despite having been denied entry by Ms Hemming, the applicant forcibly gained entry to the unit; secondly, that the applicant trespassed into the unit by force with the intention of assaulting Mr Idrees; and, thirdly, that having gained entry, the applicant slashed Mr Idrees with shards of glass, causing him serious injury. We regard these conclusions as clearly being open to the jury based upon an acceptance of the evidence of Ms Hemming and Mr Idrees. It is necessary to turn to that evidence.

23 Amy Hemming gave evidence that Mr Idrees visited her unit at about 8.30 pm on 10 June 2016. The two of them were sitting in the lounge room talking when the applicant 'turned up outside'. Ms Hemming's evidence included the following:

I heard his voice coming from outside. ... I heard his voice and at the time I knew he was outside. ... [The front door] had the safety chain on it. ... I remember he tried to open the door and he tried to - but the safety chain was on so it didn't open. Then I just pushed the door shut and locked it. ... [H]e said something like, 'He's married and he's got kids' and I said, 'No, he's not. He's my friend.' ... I believe he was speaking in Hindi ... [H]e smashed the window. ... When I heard his voice outside I called the police. ... I didn't see how it smashed because there was a blind inside between - in front of the glass but I do remember I was standing near the window when the glass smashed in, into the apartment. ... He came into the apartment. I can't remember how - I am not sure how he actually came in. I don't remember whether it was through the window or the door. ... At one point I think he said [in English], 'See, I told you I would kill him.' ... I saw a struggle between the two of them. I saw Amit lunging towards Muhammed. ... I believe he had some glass in his hand. ... I believe that he was aiming towards his neck. ... I did see him lashing out with some glass but, yeah, I can't see clearly whether - yeah, like, I can't see clearly how I saw if there was contact. ... I believe at some point Amit ran off. ... So [Mr Idrees] ran out after [the applicant] and I believe that he followed him for some distance.

24 Ms Hemming said that after Mr Idrees returned to the unit he remained outside and was attended to by neighbours putting pressure on his neck. Police and an ambulance arrived, and Mr Idrees was taken to the Alfred Hospital.

25 Based on Ms Hemming's evidence, we consider that it was open to the jury to be satisfied beyond reasonable doubt that the applicant had tried to enter her unit via the front door but was prevented by the safety chain from doing so; had smashed the lounge room window; had forced entry to the unit either via the window or the door; had told Ms Hemming that he would kill Mr Idrees; had struggled with Mr Idrees; and had lashed out and lunged towards Mr Idrees with glass in his hand aiming towards his neck, causing injury which necessitated Mr Idrees' transport to hospital.

26 Muhammed Idrees gave evidence that he went to Ms Hemming's unit at about 8.30 pm on 10 June 2016. They were sitting on the couch talking. He said:

So when I was sitting there for at least an hour, then this man started shouting and yelling and that's when it started, yeah. ... Yeah, he just started screaming outside, the moment he came. I mean, that's how I noticed him, yeah. ... Yeah, he was using English and Hindi as well, yeah. ... The thing that I recall is that, 'You shouldn't be here in my house' - that's like I am translating it into English and that's what he was telling me. Other than that, he was like abusing me, Amy and, like, yelling, asking Amy to let him in so he could talk and all, yeah. ... Amy asked him to just go away or she would call the police. ... Like, I am not sure if the door was, like, locked from the inside when I got in the living area but it was, like, shut, so I am not sure if it was locked or unlocked. ... When he started to, like, get in, that's when he kicked the door open. ... He was trying to smash the window and then, yeah, in that period [of 20 minutes] he smashed in the window. ... So when the window was smashed, the broken glass fell on the ground. ... [I]t fell inside and one of his hands was inside the window, like trying to come in to get to the lock and, yeah. ... Soon after there was a smash I stood up. Amy was calling the cops so I just wanted to get a safety exit. I was, like, checking if I can open the door and run away, like, our safety exit, but soon after I went in to, like, open the door, the lock, he came in and kicked the door in and he came inside. ... He was threatening me, like, 'I will kill you' and 'You are almost dead' and he was on repeat mode, like, he was repeating it all the time. Like, 'I will kill you' and then the next time he would jump - like, tell Amy, like, 'You are this, you are that'. Something like that. ... [Once he came in] he had a big glass [sic] of - broken glass from the window. He hit me with it on my head and then he threw that glass and picked up two small pieces of the broken glass and he hit my face and chest and arm. ... I put my right hand to just cover - cover it, cover my head with it, yeah. ... [As he was hitting with the glass] he was threatening me that he would kill me and that, 'You are almost dead'. He was being abusive as well, like using abusive language. ... So he was, like, cross hitting me with both his hands. So right and left hand, both small pieces of glass with sharp edges, obviously, so he was cross-hitting me and that's how I got these injuries. ... So after I started bleeding he started to run away and at that time, because I was almost getting unconscious at that time, and I just held on to the pieces of glass that were in his hands and I just - yeah, so he was going out. He was going out and then he ran away, he threw the glasses and he had his clothes on. He threw his clothes on the floor and he ran outside the unit. ... I ran after him for a while and then I was feeling dizzy so I just came back and sat outside of the unit.

27 Mr Idrees was badly cut in the incident. He was conveyed to hospital where his injuries were surgically repaired.

28 Based on Mr Idrees' evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant had smashed the window of the unit; had kicked the door open; had threatened to kill him; and had attacked him with shards of broken glass, causing him severe injuries.

29 Before proceeding further, we pause to note that, in the course of his oral submissions in this Court, the applicant denied that he had cut or slashed Mr Idrees' head or face with a shard (or shards) of glass. When we asked him for his explanation as to how Mr Idrees received the lacerations to his face which were later surgically repaired, the applicant proffered the patently preposterous suggestion that 'maybe' Mr Idrees had slashed himself with a pair of scissors.

30 As we have indicated, given the evidence of Ms Hemming and Mr Idrees, we consider that it was well open to the jury to be satisfied beyond reasonable doubt that charge 2, aggravated burglary, and charge 4, intentionally causing serious injury, were made out. In light of Ms Hemming's and Mr Idrees' clear evidence of the applicant's forcible entry to the unit - whether it was by the door or the smashed window - and his assault on Mr Idrees with shards of broken glass, the suggested absence of fingerprints, or of damage to the door, did not compel the jury to entertain a reasonable doubt as to the applicant's guilt on either charge. Further, the applicant's assertion that there was 'no weapon', has no substance whatsoever. The evidence vividly demonstrated that the applicant wielded pieces of shattered glass as an effective and dangerous makeshift weapon.

31 Moreover, the applicant's written assertion that there was 'no DNA' simply is not borne out by the evidence. Thus, Samantha Logan, a forensic officer with Victoria Police, gave evidence that DNA analysis was carried out on a swab taken from a bloodstained glass shard that was found in the area of Ms Hemming's unit bordering the living and kitchen areas. From her evidence it was open to conclude that the glass shard bore both Mr Idrees' and the applicant's DNA. She gave the following evidence-in-chief:[20]

Was the glass swabbed on both sides of the glass, trying to avoid areas of bloodstaining?---Yes, that's correct.

In relation to those swabs, was a DNA profile obtained?---Yes.

What sort of DNA profile was it?---From the swabs avoiding the red/brown staining?

Yes?---So from the trace swabs of both sides of the glass a mixed DNA profile with four contributors including Muhammed Idrees was obtained.

In relation to Amit Kumar, was an analysis undertaken?---Yes, it was.

What was that analysis?---So the DNA evidence is 100 billion times more likely if Amit Kumar is a contributor than if another unknown person chosen at random is a contributor to the profile.

32 When, in the course of his oral submissions, the Court referred to the existence of DNA evidence, the applicant submitted that all the DNA evidence did was establish that he had touched one side of the window pane.

33 As to that, we note that the applicant's counsel advanced the following arguments concerning the significance of the DNA evidence in his final address to the jury:

The DNA that was taken from that broken glass in the kitchen. The significance of that is probably not that great. It places the accused, Mr Kumar, in contact with the window. You will recall there were swabs taken both sides so you can't tell which side the DNA came from, so it's consistent with him leaning on the window, as he says he did, and breaking the window.

34 So far as the suggestion the Mr Idrees had made inconsistent statements is concerned, we note that senior counsel for the applicant cross-examined Mr Idrees (among other things) on the contents of a statement that he made to police on 20 June 2016, in order to show that parts of it were inconsistent with his evidence before the jury.

35 Thus, for example, it was put to Mr Idrees that he had said in his statement that, after he arrived at the unit, Ms Hemming put her child to bed, yet in his evidence had said that the child was in the lounge room the whole time. It was also put to Mr Idrees that in his statement he had said that he had noticed the applicant looking in the window of the unit, yet his evidence was that the blind was down.

36 In our view, however, the suggested inconsistencies were matters that the jury were capable of evaluating. Having viewed Mr Idrees' cross-examination as a whole, there was nothing that we could see that should have led to the jury's rejection of Mr Idrees' evidence - or to have led to a reasonable doubt about its accuracy and reliability - on critical aspects.

Witnesses did not see the applicant enter the unit

37 The applicant asserted in writing that '2 eye witness given statement accused never enter into house'. We had taken this assertion - correctly, as it turned out - to revolve around the evidence of two witnesses who lived in the same block of apartments as Ms Hemming, Travis Warrington and Yohanes Windi. When the applicant repeated that assertion in the course of his oral submissions, we pointed out to him that neither of the witnesses at any stage positively had said that he had not entered the premises. Notwithstanding that we did so, however, the applicant sought to maintain that so much was the effect of the evidence. It is thus necessary to refer briefly to their evidence.

38 Travis Warrington gave evidence that on the evening of 10 June 2016 he was at home watching television. Around 10.00 pm he heard raised voices from downstairs. He heard shouting and a window smash, so he went outside and looked down over the railing, where there 'was a chap [he] saw trying to get through the window' of Ms Hemming's unit. Mr Warrington's evidence was that, 'Outside the flat there was a green chair ... and he was trying to get through the window. ... He had his foot on it and he was trying to get through that window ... he was trying to get through the window, simple as that. He was trying to get into that unit '. He lost sight of the man, but 'the next thing [he] saw was basically two guys down, wrestling' in the driveway.

39 Yohanes Windi, who lives in the same units, gave evidence that on the evening of Friday, 10 June 2016, he was at home watching the television with his children. His wife came home and told him that a man was 'peeping' through the window of another unit. Ten or 20 minutes later he heard a 'commotion' downstairs. He heard someone 'yelling to somebody else to open the door because that person wanted to have a word', and he 'could hear a noise that [he] thought maybe a window being broken'. Mr Windi said he could hear people 'quarrelling', so he went outside to have a look. In front of the door of a unit downstairs he could see 'two men and one woman'. One of the men was saying, 'Enough, bro, enough. Stop it'. One man had his shirt off. He ran away 'in a hurry'.

40 Rather than assist the applicant, the evidence of Mr Warrington - which plainly was capable of acceptance by the jury - gave support to the prosecution's case of forced entry. True it is that Mr Warrington did not see the applicant inside Ms Hemming's unit, but that is explicable by the vantage from which he made his observations.

41 It is also true that Mr Windi did not see the applicant inside the unit. Once more that is explicable by his standpoint. His evidence did, however, provide general support for the proposition that the applicant was the aggressor.

42 Nothing in the evidence of either of these witnesses casts any doubt on the safety of the jury's verdict.

43 In his written statement, the applicant contends that 'according to doctor no injuries was life threatening'. This is an apparent reference to medical evidence received at committal to the effect that Mr Idrees' injuries were not life-threatening. By agreement, the doctor who gave this evidence was not called at trial, it being the agreed position of the parties that Mr Idrees' injuries were not life-threatening.

44 Indeed, at no stage at trial was the prosecution's case on charge 4 put on the basis that Mr Idrees' injuries were life-threatening. From the outset it was made clear - and the defence acknowledged - that the case on charge 4 was based on the contention that Mr Idrees' injuries were 'substantial and protracted'.[21]

45 In our view, the evidence of the physical injury and harm to mental health suffered by Mr Idrees well-justified the conclusion that in their cumulative effect they were substantial and protracted.

46 Hence, Dr Edwin Morrison treated Mr Idrees for his injuries at the Alfred Hospital on 11 June 2016. He gave evidence that

we repaired a number of lacerations, sharp minimally contaminated kind of lacerations and those included to the hand on the right side, the ear on the right side, the neck on the left side, the cheek on the left side, times two, and there was a forearm laceration on the eft side as well.

47 Other evidence of Mr Idrees' injuries included that of a hand therapist, Kate Rayner, who treated Mr Idrees' and described the ongoing pain and disability in his right hand; that of a psychotherapist, Tom Trikojus, who had counselled Mr Idrees, and explained the adverse emotional effects that he had experienced as a result of the attack; and that of a dermatologist, Dr Yan Pan, who (in a statement read into evidence) described the treatment of Mr Idrees' facial scarring with steroid injections in December 2016 and May 2017.

48 The trial judge accurately summarised the effect of the medical (and associated) evidence in his reasons for sentence:[22]

Mr Idrees was taken to hospital, where spent three days. He had suffered two wounds to his left cheek, and others to his neck, behind his ear, on his chest, his arm, his snuff box and the inside of his hand. All except the last wound required stitching during surgery. One of the wounds to the cheek was deep enough to damage the muscles and nerves, but they were repaired. The blow to the snuff box caused a cut through his sensory branch and into the joint of his thumb but did not damage tendons. Mr Idrees was off work as a taxi driver for two months. Initially, he lost strength in his grip and movement in his hand as a result of the wound to his snuff box. However, after a good deal of treatment with a hand therapist, that injury has largely recovered, although he still feels pain on occasions. He has been left with two permanent noticeable scars on his cheek and one on his neck, all of which his beard mostly conceals. He required extra steroid injections to reduce the protrusion of one of those scars. He also had several counselling sessions to deal with the emotional effects of the assault and his injuries.

49 When charging the jury on serious injury, the trial judge explained the way in which the prosecution case was put. He directed the jury that the prosecutor

submits that while this injury did not endanger life it was substantial and protracted. It was substantial because of the depth of the wound, the damage caused to underlying structures and the psychological injury in having such scarring in a prominent part of the face, and it was protracted because it took extra treatment over time to reduce the scarring which still exists, to some extent. So that is the first way the Crown puts serious injury.

The second and alternative way that the prosecution allege that [the applicant] caused serious injury is by a combination of six separate injuries. The law is that an injury may be substantial and protracted because of the combined effect of the immediate physical injuries and prolonged psychological injuries that can amount to serious injury.

In particular, the prosecution allege that the two lacerations to the cheek, the one to the neck, the one behind the ear, the one to the chest and the one to the snuffbox on the right hand amount collectively to serious injury.

In [the prosecutor's] submission, while none of those injuries endangered life - he accepts that - and while all but one are 'simple' injuries, as described by the doctor, in combination, in his submission, they are substantial and protracted. This is because of the combination of six wounds, the combined scarring, the time spent in hospital initially which was three days, the steroid treatment by Dr Pan in December 2016 and May 2017, the initial loss of grip strength and the time it took for that strength to return, the hypersensitivity Mr Idrees continued to feel in his hand for a while, the loss of time off work and the psychological effects of the scarring and physical limitations. So all of those things collectively are put to amount to serious injury in combination.

50 In light of the foregoing, we consider that plainly it was open to the jury to be satisfied beyond reasonable doubt that the injury that the applicant had caused Mr Idrees was 'serious injury' in that it was 'substantial and protracted'. The fact that his injuries were not life-threatening is not to the point.

51 There is no substance in the suggestion that the applicant made no admissions in recorded telephone conversations. Plainly he had.

52 Seema Seema, the applicant's former wife, gave evidence that he telephoned her at 10.18 pm on 10 June 2016, speaking in Hindi. She said he 'sounded horrified, shaky and scared'. Her evidence included the following:

When he called you what did he say to you; what did he tell you?---He told me that, 'I punched someone'. I said to - yeah, he said, 'I punched someone'.

Did he tell you, first of all, where he was when he punched someone?---He didn't tell me where he was but he told me that where he punched someone.

Where was it? I am not asking you where was he when he made the phone call to you. What I want to know is did he tell you where he was when he punched someone?---Yes. He was at Amy's house.

Did you know who Amy was?---Yes.

...

When he told you that he had punched someone at Amy's house, what did you say to him?---I asked him, 'Did you punch someone or did you kill someone?'

What did he tell you?---He said, 'No, I punched him and my hand is cut'.

...

Okay. When he told you what the male told him on the phone, did you ask him further questions?---I told him that, 'He was trying to provoke you. Why did you go there?'

Did [the applicant] respond to that?---He said that, 'I love Amy and I couldn't control myself, I couldn't control my anger. That's why I went there'.

53 Moreover, the prosecution tendered translations of 'Arunta' telephone calls between the applicant and Seema Seema, made by the applicant whilst remanded in custody, in the course of which he discussed trying to get someone to persuade witnesses to alter or withdraw their statements, or not come to court. In one conversation, having suggested that witnesses had made 'imaginary statements' against him, the applicant told his former wife:

I will make imaginary statements as well like they did. It is up to judge to decide whose lie they think is better. Do you get it? Here, both parties give statement and the party who can lie better, their statement will be accepted. ...

54 In his charge, the judge told the jury that the prosecution relied on the telephone calls from custody to show that the applicant 'attempted to arrange others to contact or bribe Ms Hemming and Mr Idrees to alter or withdraw their statements to police', and that this behaviour demonstrated that the applicant 'believed that he had to persuade them to alter or withdraw their statements because he believed that he unlawfully and deliberately struck Mr Idrees with a shard or shards of glass and caused him injuries and that he did not want a court to hear their evidence which supported that version'. The judge then gave directions to the jury as to the proper use (and non-misuse) of the evidence.

55 For the foregoing reasons, the applicant's claim that 'there was error [making the] verdict by [the] jury ... unreasonable on the basis of evidence provided in trial', is wholly devoid of substance.

56 In those circumstances, as we have said, it would be completely futile to grant the extension of time sought by the applicant.

[1] Family Violence Protection Act 2008, s 37A(2). The maximum penalty is five years' imprisonment.

[2] Crimes Act 1958, s 77(1). The maximum penalty is 25 years' imprisonment.

[3] Crimes Act 1958, s 16. The maximum penalty is 20 years' imprisonment.

[4] Bail Act 1977, s 30B. The maximum sentence is three months' imprisonment.

[5] The judge sentenced the applicant to six months' imprisonment on charge 1; four years' imprisonment on charge 2; and six years' imprisonment on charge 4. It was directed that one year of the sentence on charge 2 (aggravated burglary) be served cumulatively upon the sentence on charge 4 (intentionally causing serious injury), and that all other sentences be served concurrently. On the summary charge the applicant was convicted and discharged.

[6] Reproduced as it appears in the original.

[7] Reproduced as they appear in the original.

[8] Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA) (citations as in the original).

[9] Jopar v The Queen [2013] VSCA 83; (2013) 44 VR 695, 707 [59] (Priest JA) ('Jopar').

[11] Kentwell v The Queen (2014) 252 CLR 601, 613 [30] (French CJ, Hayne, Bell and Keane JJ).

[13] Ibid 614 [33]. See also Rapovski v The Queen [2017] VSCA 175, [25] (Priest JA).

[14] Jopar [2013] VSCA 83; (2013) 44 VR 695, 707 [60].

[17] On the hearing of the application, at the Court's request the applicant produced three letters addressed to him from VLA, which had not been disclosed in the applicant's affidavit material. They were received as an exhibit (Exhibit A). The first letter, dated 17 July 2018, advised the applicant that: 'We have refused your application. This means that we will not pay for your lawyer or other legal costs'. It appears that, following that decision to refuse him legal aid, the applicant sought reconsideration of the decision, since the second letter, dated 27 February 2019, advised him: 'You or your lawyer asked us to reconsider our decision about your application for legal assistance in your criminal law matter. Another officer from [VLA] has reconsidered our decision. We have not changed the decision'. It is apparent that the applicant then sought an independent review of the decision to refuse him aid, since the third letter, dated 8 April 2019, advised him: 'You or your lawyer asked us to arrange an independent review of our decision about your application for legal assistance in your criminal law matter. ... The independent reviewer confirmed our original decision'. Given the contents of the three letters, it is somewhat difficult to accept that the applicant could have believed that VLA was addressing his appeal, or that he had only recently been advised to the contrary.

[18] R v Kumar [2018] VSC 241, [1]-[11] ('Reasons').

[19] Pursuant to ss 24-35 of the Family Violence Protection Act 2008 (Vic).

[21] Section 15 of the Crimes Act 1958 includes relevant definitions:

(a) an injury (including the cumulative effect of more than one injury) that -