Longley v The Queen [2021] VSCA 288

2 Following a trial in the County Court, on 8 November 2018 a jury empanelled to try the applicant found him guilty of culpable driving causing death.[1] On 21 December 2018, the trial judge sentenced the applicant to seven years' imprisonment, with a non-parole period of five years.

3 The applicant now seeks to challenge his conviction for culpable driving. To that end, on 21 December 2020 - almost two years out of time[2] - the applicant filed an application for leave to appeal against conviction and written case,[3] together with an application for an extension of time within which to file a notice of application for leave to appeal against conviction, supported by an affidavit sworn by his solicitor.

4 Should the extension of time be granted, the applicant seeks to rely on a single ground, formulated as follows:

A substantial miscarriage of justice arose from it having been left open to the jury to convict the applicant of culpable driving:

(a) Even if the manoeuvre in turning right onto Murphy Street did not constitute the offence;

(b) By virtue of the presence of illicit drugs in his system and/or driving while knowing that his vision was impaired;

(c) Where, on the evidence, neither the presence of drugs nor the applicant's impaired vision could at law have sustained a conviction.

5 In our opinion, the application for an extension of time should be refused. Our reasons follow.

6 In support of the application for extension of time, Mr Anthony Maselli, a solicitor in the employ of the applicant's current solicitors, James Dowsley and Associates ('JDA'), on 14 December 2020 swore an affidavit endeavouring to explain the delay in lodging the application for leave to appeal within the prescribed time. Mr Maselli swore that:

• the applicant 'first contacted JDA about an appeal on 2 December 2019';

• when sentenced on 21 December 2018, the applicant instructed the solicitors who had represented him at trial - Emma Turnbull Lawyers ('ETL') - to appeal, but when he sent correspondence to ETL 'asking what was happening in relation to his appeal', his correspondence to ETL 'went unreturned';

• the applicant's two daughters contacted ETL 'about an appeal' respectively between 8 January 2019 and 12 February 2019, and 4 February 2019 and 9 April 2019;

• on 21 March 2019, ETL obtained advice from counsel that 'there was no merit in an application for leave to appeal against conviction or sentence'.

4. I sought to contact Paul Smallwood of counsel about the possibility of obtaining a written appeal advice on 4 December 2019. I was subsequently advised that Mr Smallwood was at that time overseas.

5. I contacted [named Queen's Counsel] about the possibility of obtaining a written appeal advice on 16 December 2019. In subsequently preparing a brief for [named Queen's Counsel] I realised that materials provided to me by [ETL] were incomplete. On 17 December 2019 I realised that I did not have the trial transcript relating to days 1, 3, 7 or 8. That day I requested those missing materials from [ETL], and shortly thereafter I was provided with a copy of the depositions.

6. I also realised that JDA did not have either transcript or audio of the trial judge's charge.

7. JDA closed from 22 December 2019 to 3 January 2020. I was on leave from 22 December 2019 to 9 January 2020.

8. On 22 January 2020 I had a phone conference with [named Queen's Counsel]. On 28 January 2020 [named Queen's Counsel] provided me with a costs agreement that I could then discuss with the applicant. On 10 February 2020, after discussing matters with the applicant including financial arrangements, I was instructed to brief Mr Smallwood.

9. On 7 April 2020 ... the applicant's ex-wife, deposited sufficient funds into JDA's trust account to enable both JDA and counsel to formally commence preparation of the matter. On 16 April 2020 JDA requested that the Victorian Government Reporting Service (VGRS) provide the audio file of the trial. On 20 April 2020 that audio file was received from VGRS. Mr Smallwood and (on Mr Smallwood's recommendation) Jonathan Barreiro of counsel were engaged to prepare an appeal advice.

10. Mr Smallwood advised JDA that missing from his brief was the transcript of days 1, 3, 7 and 8 of the trial. On 5 May 2020 Mr Smallwood advised JDA that in order to finalise his advice he required the transcript of the rulings handed down by the trial judge on 24 October 2018. On 6 May 2020 I received the transcripts of the revised rulings dated 24 October 2018. On 21 May 2020 I received an appeal advice that had been prepared by Mr Smallwood and Mr Barreiro.

11. Having received that advice, on 22 May 2020 I spoke with the applicant. The applicant instructed me that he wished to proceed with an application for leave to appeal against conviction. Since those instructions were received:

11.1 JDA remained in funds to brief counsel to prepare the documents relating to the application for an extension of time to commence an application for leave to appeal against conviction.

11.2 Counsel settled those documents.

11.3 JDA obtained further instructions ... about what had occurred between the applicant having been sentenced and his first approach to JDA.

12. The applicant has always maintained his instructions that he wished to pursue an application for leave to appeal against conviction. He has never withdrawn those instructions. Plainly, a significant period of time has passed since he was sentenced. The applicant was reliant on legal representatives to prepare his appeal. The unsatisfactory extent of the delay does not reflect an ambivalence on his behalf to pursue an appeal.

8 In the final paragraph of his affidavit, Mr Maselli concedes the 'unsatisfactory extent of the delay' in this case, and apparently lays the blame for the delay at the feet of the applicant's lawyers. A remarkable feature of his affidavit, however, is that it is completely silent as to what transpired between 22 May 2020 (when the applicant gave instructions to proceed) and 21 December 2020 (when the application for leave to appeal was filed), a period of some seven months.

9 When, at the outset of the hearing, the Court raised the deficiencies in the supporting material, senior counsel for the applicant frankly acknowledged its shortcomings, and indicated that he was not in a position to supplement it with any further material in proper form. After a short adjournment, senior counsel informed the Court from the Bar table that, despite his junior having provided a draft of the application for leave to appeal and written case to Mr Smallwood for settlement within three weeks of receiving instructions on 22 May 2020, and despite follow-up communications by his instructing solicitor, there was a delay of six months in Mr Smallwood settling the necessary documents. Senior counsel - who had only received his brief four days prior to the hearing, and was thus labouring under a disadvantage - informed us that he was not in a position to proffer any explanation for that six-month delay.

10 As we indicated in the course of the hearing, the delay in this case is wholly unacceptable, and the explanation for it - such as it is - highly unsatisfactory.

11 Self-evidently, where a statute or the rules of court prescribe a time limit for the filing of court documents as a precondition to the exercise of a legal right, failure to comply with the time limit may imperil that right. Unsurprisingly, legal practitioners owe duties to their client when they accept instructions to prepare court documents whose filing is subject to a time limit. Those duties include a duty to advise of the time limit, a duty to warn of the consequences of not complying with the time limit and a duty to take such steps as are reasonable in all the circumstances to meet the time limit.

12 Counsel should not accept a brief to prepare court documents whose filing is subject to a time limit if counsel knows that he or she cannot complete the work in a timely manner. Where, after counsel accepts the brief, counsel becomes aware that he or she is no longer able to complete the work in a timely manner, counsel should immediately return the brief. A solicitor should ascertain from counsel that counsel can complete the work in a timely manner prior to briefing counsel. The solicitor should monitor progress in completion of the work, should press counsel about the completion of the work if there is any potentially prejudicial delay, and should withdraw the brief and engage new counsel as soon as it is apparent that counsel originally briefed cannot complete the work in a timely manner.[4]

13 Where a time limit for the filing of court documents is not met and an application is made for an extension of time, a legal practitioner who draws or swears an affidavit in support of the application must ensure that the affidavit contains a frank and thorough explanation for the delay. Such an explanation is required to assist the court to determine who is responsible for the delay and whether there is a satisfactory explanation for it. Regrettably, as we have already explained, the affidavit sworn by Mr Maselli in the present case does not contain all the information this Court requires in order to make findings on these matters, which are relevant to the Court's decision whether to grant an extension of time.

14 The considerations that inform the grant or refusal of an extension of time were summarised in Madafferi:[5]

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).[6] 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.[7] 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,[8] the length of the delay - and the reasons for it[9] - and the prospects of success should the extension be granted,[10] are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise.[11] 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.[12] The discretion must, as we have said, be exercised according to the individual facts of each case.[13]

15 As we have indicated, the delay in the present case was very lengthy, and the explanation for the last six months of it (at least) virtually non-existent. Moreover, as will become apparent, we regard the proposed appeal to be completely lacking in merit. Those circumstances dictate that the Court's broad discretion to grant an extension of time should be exercised adversely to the applicant.

The proposed application for leave to appeal against conviction

16 The prosecution case against the applicant was that his driving causing the death of the victim was grossly negligent.[14] His gross negligence was said to be constituted by three principal features:

• First, whilst driving along Burnley Street, the applicant merged into the right hand turning lane abruptly and turned into Murphy Street in a hurried fashion, in an apparent effort to beat oncoming traffic.

• Secondly, the applicant had ingested methylamphetamine earlier in the day, and had approximately one milligram per litre in his bloodstream. Expert evidence given by a forensic physician, Dr Morris Odell, was that this was a high level. Dr Odell's opinion was that, in combination with Alprazolam (which was also in the applicant's system), there was no way a person could be unaffected with the combination of drugs at the levels detected, and the applicant would have been much less capable of driving than if his drug level was zero.

• Thirdly, the applicant was aware that he had poor eyesight, particularly at night, evidence of the standard of his sight being the subject of expert evidence.

17 The evidence revealed that, on 2 July 2017 Gordana Vlatkovic, aged 79 years, had been playing the 'Pokies' at the Royal Oak Hotel. It appears that she was heading home, and was less than 500 metres from there, when killed. The evidence was that as she crossed Murphy Street at the intersection with Burnley Street, Richmond, at about 7.15 pm, she was struck by the applicant's vehicle. When struck, she was walking in the pedestrian zone in accordance with a green traffic light (although it is unclear whether the pedestrian light was green).

18 Evidence in the trial indicated that, in the lead-up to the collision, the applicant was agitated and in a hurry to check on his daughter. He turned sharply into Murphy Street, and, as we have said, struck Ms Vlatkovic as she crossed the road, the point of impact being 6.85 metres from the southern kerb and 4 metres from the northern kerb. Ms Vlatkovic was projected a number of metres through the air, before coming to rest 14.5 metres from the point of impact. An accident reconstructionist estimated the speed of the applicant's vehicle at the point of impact most likely to have been around 42 kilometres per hour, although the possible range was between 34 and 49 kilometres per hour.

• he was driving fast prior to the collision, but was not speeding;

• the collision occurred as he was returning from South Yarra to Richmond and was hurrying back as there had been a bit of trouble with his daughter;

• he was anxious to get back to make sure his daughter was okay;

• he was impatient to overtake vehicles if they were travelling slower than the speed limit;

• as he turned into Murphy Street, the only thing he recalled seeing was the top of the deceased's head;

• the deceased was in the walking zone when he struck her;

• he did not have time to put on the brakes before striking the deceased;

• when he struck the deceased he was driving fast but was not speeding;

• he did not know whether there was a car coming towards him as he was going around the corner, or whether he put his foot down to go around faster, 'All I see was the top of the lady's head';

• when it happened, 'I didn't even get to the brakes in time to - to - to - I don't know, you know, to stop the car';

• he had been drinking during the day and had also taken some 'ice' (methylamphetamine) at 8.00 am;

• consumption of ice makes him feel more relaxed; and

• he had gotten his eyes tested because it was getting harder to see at night, 'Things are just blurry'.

20 In a telephone conversation between the applicant and his daughter when he was on remand, he referred to an occasion when he had his eyes tested only weeks prior to the collision. He said, 'You know how I went and had a night test too, you know that', and that, 'They said my eyes were fucked'.

21 The prosecution called evidence from Ms Thami Maniotis, who had tested the applicant's eyesight at an eye clinic in June 2017. Ms Maniotis confirmed that there had been a deterioration in his vision since he was previously tested in 2015. She said that when the applicant attended on 14 June 2017, he complained of reduced vision, especially at night.

22 Dr Odell also gave evidence in relation to the applicant's vision based on the notes of Ms Maniotis. He concluded that the applicant could drive but that it would have been advisable for him to have glasses. There was evidence that the visibility into Murphy Street from Burnley Street was poor, since Murphy Street was not as well lit as Burnley Street.

23 Harrison Hein - who saw the applicant's car hit Ms Vlatkovic - said that the applicant's vehicle was travelling fast enough to make significant impact.

24 Further, Madeline Pattinson, who was a passenger in a BMW travelling along Burnley Street - initially just ahead of the applicant's four wheel drive vehicle - noticed the applicant's vehicle driving quite erratically as it passed the BMW on the right-hand-side. The applicant was revving loudly and it was like the vehicle was in high gear. It appeared as if the vehicle was trying to pass the BMW to get into the slip lane to turn right. The four wheel drive was really powering past. It did not appear to slow down at all to make the turn, and it turned into Murphy Street quite fast. Ms Pattinson noticed a pedestrian (a woman) looking towards the headlights of the oncoming four-wheel drive. She then saw the pedestrian fly up above the bonnet of the vehicle.

25 Timothy Elliott, also a passenger in the BMW, first noticed the four-wheel drive after crossing Bridge Road. He heard loud revving and thought that it was a motorbike. The vehicle's engine was being pushed hard. It took the turn into Murphy Street rapidly, and the driver did not appear to slow down or check for hazards in front. It just seemed to go.

26 Matthew Bailey, who was the driver of the BMW, heard a loud revving sound and then saw the four-wheel drive vehicle in the right-hand turning lane. Mr Bailey was travelling at 50 kilometres per hour and the vehicle was keeping pace with him, going too fast.

27 Jack Moss, the third passenger in the BMW, heard the four-wheel drive revving before the BMW had crossed Bridge Road. Once over Bridge Road, the vehicle was driving erratically behind their car. It drove very quickly, like it was dodging the BMW, and then it sort of went seamlessly with one turn from behind the BMW, then a little bit forward, then right into Murphy Street. When it turned right it was driving quite erratically. It made a very quick turn behind the BMW like it was dodging the BMW.

28 Finally, Lauren Oswin was in a northbound vehicle in Burnley Street, immediately behind the BMW driven by Matthew Bailey, and had travelled through the Bridge Road intersection. She described seeing the four-wheel drive accelerate and turn sharply into Murphy Street across the face of a southbound vehicle which was only two to three car lengths from the four-wheel drive when it executed this manoeuvre.

29 After the collision, Mr Hein, Mr Bailey and Mr Moss made observations of the applicant consistent with him being drug-affected.

30 The gist of the applicant's submissions in support of the proposed ground of appeal is that the judge had left it open to the jury to convict the applicant of culpable driving - even if the applicant's manoeuvre in turning right into Murphy Street did not constitute the offence - by virtue of the presence of illicit drugs in his system, or driving while knowing that his vision was impaired, in circumstances where neither the presence of drugs nor the applicant's impaired vision could have sustained a conviction. In other words, it was submitted that the judge had left the case to the jury on the basis that the jury could find gross negligence solely on the strength of the evidence of the applicant's ingestion of drugs or his poor eyesight.

31 As the following passage from the judge's charge amply demonstrates, the applicant's submissions cannot be accepted:[15]

The third element that the prosecution must prove is that the culpable driving caused the death. It must have been the act of culpable driving that caused the death, not simply the act of driving. Do you follow the distinction? It is not simply the driving, it is the driving in circumstances of gross negligence. It has to be the latter that causes the death, not simply the driving, and you will recall [defence counsel] making that point too.

In this case that means that you must find that it was [the applicant's] gross negligence that caused Gordana Vlatkovic to die. That is the death resulted from [the applicant] having driven in a way that fell far short of the standard of care expected of a reasonable person in the circumstances and which held a high risk of death or serious injury.

For this to be the case there must have been a relationship between the [applicant's] gross negligence and Ms Vlatkovic's death. It will not be sufficient if the collision simply happened to occur while [the applicant] was driving with gross negligence but was not due to that negligence.

However, in order for the third element to be made out the [applicant's] negligent driving does not need to have been the only cause of death or the direct or immediate cause. You may find that his negligence, if you get to element 3, caused the death if it was a substantial or significant cause of that result. So it just has to be a substantial or significant cause of that result and the law considers that to satisfy causation. So if it's a substantial or significant cause of the result.

You should approach this issue in a common-sense manner, bearing in mind that your answer affects whether or not the [applicant] is held criminally responsible for his actions.

So you understand the prosecution case. It is the combination of those circumstances. It's the circumstances you're going to have to make findings about. The prosecution say the turn is too sharp, there's on one view it's going around quickly to perhaps beat oncoming traffic. This is the prosecution case. It's too fast for the circumstances. Not only that but it's in circumstances of drugs in his system affecting his judgement and his faculties in some way, his driving. Not only that he's aware of the aspect of his eyesight. It's night-time.

In all of those circumstances the prosecution say that amounts to gross negligence. They then go on and say if you look at those circumstances, if you find gross negligence beyond reasonable doubt you can be satisfied that it's that gross negligence that caused the death of Ms Vlatkovic. [Defence counsel] on the other hand, says no, you break down each of these constituent parts and look at them fairly and analyse them carefully. None of them in themselves or in combination amount to gross negligence if there's negligible effect in respect of each of them. In multiplication it doesn't get greater than what the effect is.

32 We consider that - as the passage extracted immediately above clearly demonstrates - the judge made it abundantly clear to the jury that, before they could convict the applicant of culpable driving, they had to be satisfied to the criminal standard that the applicant's grossly negligent driving caused Ms Vlatkovic's death; and that, in order to find gross negligence, they had to find that the factors relied upon by the prosecution in combination were established. At no stage was the case left to the jury on the basis that drug ingestion and impaired eyesight were sufficient to justify the applicant's conviction. Hence, the premise underpinning the proposed ground of appeal is flawed.

33 In light of the foregoing, there is no merit in the proposed ground (or, therefore, the putative appeal).

34 Given the absence of any satisfactory explanation for the delay, and the complete lack of merit in the putative appeal, the application for an extension of time within which to file a notice of application for leave to appeal against conviction must be refused.

[1] Crimes Act 1958, s 318(1).

[2] Section 275(1) of the Criminal Procedure Act 2009 requires a notice of application for leave to appeal against conviction to be filed 'within 28 days after the day on which the person is sentenced or any extension of that period granted under section 313'.

[3] An amended written case was accepted for filing by the Registry on 23 February 2021.

[4] Bolton (a pseudonym) v The Queen [2021] VSCA 237, [22] (Kyrou and Kennedy JJA).

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

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

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

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

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

[14] See Crimes Act 1958, s 318(2)(b).