Likumbo Makasa v R

Court of Criminal Appeal (NSW)|2015-08-14|Before: Ward JA, Adams J, Beech-Jones J

Judgment

WARD JA: I am of the view that the application for an extension of time to appeal from the conviction on the counts in question should be dismissed and I will indicate briefly my reasons for that view.
By notice dated 29 January 2013, Mr Makasa has sought an extension of time in which to appeal against his conviction on 19 August 2009 of three counts of sexual intercourse with a child above 14 years and under the age of 16 years contrary to s 66C(3) of the Crimes Act 1900 (NSW).
The proposed grounds of appeal broadly contend that Mr Makasa's conviction on those three counts is unsafe and unsatisfactory and cannot be supported having regard to the evidence. They include the contention that the conviction was obtained by a combination of incompetence and deception and that as a result a miscarriage of justice has occurred. It is contended that there were material irregularities, the nature of which has not been identified in any submissions by Mr Makasa in the course of the trial.
Mr Makasa was represented at the trial. He is not represented on the present application. There has been no appearance by Mr Makasa this morning when the matter was listed for hearing of this application and the transcript will record the attempts that have been made to confirm that Mr Makasa is aware that the matter is listed for hearing on this day.

Determination

Given that the Court's records indicate that Mr Makasa appeared at the call-over on 12 March 2015 when the matter was listed for hearing today, and the history of the matter which has been summarised, and the fact that for the reasons I will shortly give Mr Makasa's application is doomed to failure, I consider it is appropriate to proceed with the matter in his absence.
The Court has no jurisdiction to hear an appeal against Mr Makasa's conviction in respect of the three counts in question (counts 8, 10 and 16) because Mr Makasa has already brought an appeal from another count which was contained in the same indictment (count 1) that being a count of aggravated sexual assault in respect of the same complainant. That appeal was heard on 6 August 2010 and resulted in Mr Makasa's conviction in respect of the aggravated sexual assault charge being quashed. The case is reported in R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R, R v Likumbo Makasa; Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga (2010) NSWCCA 228. The outcome of the Court's decision on that occasion was that Mr Makasa's sentence for the three counts the subject of the present application was backdated and he was released from custody.
In Morgan v R (No 2) [2013] NSWCCA 80 Beazley P, with whom Hidden J and Harrison J agreed, considered the relevant legislation and relevant authorities, including R v Grierson (1933) 50 WN (NSW) 71, and held that this Court does not have jurisdiction to hear and determine more than one appeal from an indictment that contains multiple counts. Mr Makasa, in his affidavit sworn January 2013 and filed at the time of filing of his notice of application to extend the time for the filing of his appeal, acknowledges that he had legal advice at the time of his first appeal as to the prospects of a challenge to his conviction in respect of counts 8, 10 and 16.
Though he there expressed bitter disappointment with that course of action he nevertheless appreciated that his then appeal was only brought in respect of the more serious conviction of aggravated sexual assault without consent contrary to s 61J of the Crimes Act 1900 (NSW).
Mr Makasa's affidavit does not deal with the reason for the delay in bringing the application for extension of time to appeal but in any event it is not necessary to consider this. The Court has no jurisdiction to hear and determine the conviction appeal Mr Makasa now seeks to bring. His application for an extension of time for the filing of an appeal should be dismissed.
ADAMS J: I agree.
BEECH-JONES: I agree with Ward JA and the orders her Honour proposes.

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