Mayen v Ryan [2013] ACTSC 172

3. When the matter came back before the court again on 13 January 2011, her Legal Aid lawyer appeared. He told the court that a "linguist" was available at noon, but he told the learned Chief Magistrate that he was prepared to proceed with the matter without the "linguist", presumably an interpreter. Ms Mayen says that she started learning English in 2006, but said, "I have difficulty understanding English and can only speak Dinka fluently". Her affidavit, sworn in the proceedings, was read over to her in the Dinka language before she swore it.

4. The learned Chief Magistrate proceeded to hear her matter and, despite a submission from Ms Mayen's lawyer that, in all the circumstances, a non-conviction bond under s 17 of the Crimes (Sentencing) Act 2005 (ACT) was an appropriate sentence, convicted Ms Mayen and made a good behaviour order for twelve months, with security in the sum of $1,000. That seems a high sum to me for a widow with three young children struggling to fit in to a completely new society, notwithstanding the offence.

5. It was clear from the submissions made on sentencing that there was a history of dispute between Ms Mayen and the victim of her offence. Indeed, there were allegations that Ms Mayen had herself been assaulted, it appears, on at least two occasions, but was persuaded that a complaint to the police was not appropriate, as the matter, she was urged, should be resolved within the community. That clearly did not happen. A letter from the former President and current President of the Sudanese Australian Community Association indicated that it was not possible to resolve the matter.

6. It is not entirely clear from the draft notice of appeal that has been filed whether Ms Mayen is appealing against the conviction - that is, the finding of guilt - or against the sentence. At the hearing today, however, that became clear and the challenge was to the sentence. An appeal against sentence in the Magistrates Court may be brought to the Court under s 208(1)(d) of the Magistrates Court Act 1930 (ACT). The appeal must be commenced within twenty-eight days after the sentence was imposed (s 209(1) of the Magistrates Court Act). The court, however, has power to extend the time within which to appeal and this is the application before me.

7. The basis on which the court will extend time for an appeal is not really in doubt. In Police v Hill [2005] SASC 458; (2005) 93 SASR 307 at 310; [11]- [12], Debelle J said:

The court has a discretion whether to grant an extension of time within which to appeal. That discretion exists for the sole purpose of doing justice between the parties: Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257 and Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458. When exercising that discretion it will have regard to the length of the delay, the reasons for it, whether there is an arguable case and the extent of any prejudice suffered by the intended respondent: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 and McPherson v Groeneveld (Unreported, Supreme Court, SA, Debelle J, No 6052, 21 February 1999). A distinction is to be drawn between an application for an extension of time within which to appeal and an application for an extension of time to set down an appeal which has been already instituted: Jackamarra v Krakouer (1998) 195 CLR 516. This application is obviously an instance of the former.

When considering whether an appellant has an arguable case, the court does not go into "much detail on the merits": R v Secretary of State for Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091; Jackamarra v Krakouer at [9] and [66]. An appellant will not have an arguable case if it is clear that the appeal will fail and in that sense is not "arguable" or not "fairly arguable": Jackamarra v Krakouer at [34].

8. The delay in this case is substantial. It is now over two and a half years since the sentence was imposed. Such a period was described by Murray J in "X" v The Queen (1993) 116 FLR 110 at 115 as "astonishing". His Honour continued:

Under the circumstances, time will only be extended if, having regard to the merits of the proposed appeal, it is clear that substantial injustice would be occasioned if the Court should refuse to consider the application for leave to appeal on its merits.

9. In Maxwell (1998) 102 A Crim R 374 at 376, Bleby J said:

The notice of appeal in this matter was filed on 5 June 1998. It was, therefore, just over two months out of time. The appellant, therefore, applies for and needs an extension of time if his appeal is to succeed. A delay of some eight to nine weeks in the filing of the notice of appeal is significant_._ In the case of Foster (1996) 187 LSJS 135, Lander J referred to some basic principles, with which I respectfully agree, which should guide the court in determining whether or not to grant an extension of time in cases of significant delay. He said (at 139-140):

Where the delay is significant, an applicant must give a proper and detailed explanation for the delay. However, the court will usually not extend the time within which to appeal, or the time within which an application for leave to appeal may be brought unless the applicant can establish that the delay itself was caused through exceptional circumstances or some untoward vicissitude of life which prevented the applicant from applying his or her mind to the question of appeal, or if the delay was otherwise caused, that on the merits, the appeal would be likely to succeed (Balchin (1974) 9 SASR 64 at 65 and Armstrong (1983) 35 SASR 356 at 367; 11 A Crim R 363 at 373.) To put it another way, the court will ordinarily need to be persuaded, where the delay is significant, that there exists, by refusing to extend time, an apprehension that a miscarriage of justice might occur (Balchin at 65 and Trotter (1979) 22 SASR 64 at 65).

10. To the same effect was what Martin CJ said in Diamond Leisure Pty Ltd v Gusmao [1993] NTSC 57; (1993) 114 FLR 293 at 294, relying on the authority of Bishop v The Queen [1982] FCA 33; (1982) 58 FLR 233. There, the applicant had provided "no explanation whatever" for the delay. His Honour said (at 295) that this "ought to be enough to dispose of the application", but he referred to what McHugh J said in Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 at 459, which said:

The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VicRp 113; [1967] VR 871 at 872; Hughes (at 263-264); Mitchelson v Mitchelson [1979] FCA 25; (1979) 37 FLR 289 at 291. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy ... It follows that before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:

The rules of court must prima facie be obeyed and in order to justify a court in extending the time during which some step in the procedure requires to be taken, there must be some material upon which the court can exercise its discretion.

11. See also what I said in R v Meyboom [2012] ACTCA 2 at [38]- [76], especially as to the effect of the Human Rights Act 2004 (ACT). See also my comments on delay (at [92]-[94]). I was also referred to Davidson v The Queen [2012] ACTCA 1, where Burns J relied on decisions such as R v Tate [1998] QCA 304; [1999] 2 Qd R 667, Matta v The Queen (1995) 126 FLR 127 and R v Balchin (1974) 9 SASR 64. These stand for the same propositions.

12. The affidavit made by Ms Mayen does not really address at all the reasons for the delay. The best that can be gleaned from it is that, since her conviction, Ms Mayen has been seeking employment and two employers have declined to employ her because of her conviction. There was also some proceedings taken by the victim against her in the ACT Civil and Administrative Tribunal, but these were resolved in Ms Mayen's favour. That occurred, however, on 23 June 2011, still more than two years ago.

13. I was told from the Bar table, however, that Ms Mayen thought that when the period of the good behaviour order had expired, the conviction would have been spent. That, of course, is not true.

14. The last job application was in March 2013. Ms Mayen did attempt to secure legal assistance from the ACT Pro Bono Clearing House, but was advised in April 2013 that she was not able to be offered any assistance. These proceedings were commenced on 2 August 2013. Again, not a lot seems to have been done in that time, although Mr J Sabharwal, who appeared for Ms Mayen, said to me that there were attempts made to obtain the transcript.

15. The grounds of the proposed appeal are set out in a draft notice of appeal as follows:

1. That the Magistrate erred in failing to ensure that the appellant had a fair trial with due regard to her difficulty understanding the sentencing remarks of the [M]agistrate.

2. That the Magistrate erred by failing to ensure that:

a. the appellant ought to have been provided an interpreter so she could understand what the Magistrate had said to her in her sentencing remarks

3. That the Magistrate erred by convicting the appellant with[out] due regard to Crimes (Sentencing) Act 2005, the appellant and the matters alleged against her.

16. The first two grounds claim that the failure to ensure that Ms Mayen had an interpreter meant that she was denied a fair trial. There is no doubt that the absence of an interpreter for someone who does not speak the language in which the proceedings are conducted will result in an unfair trial (see Ebatarinja v Deland [1998] HCA 62; (1998) 194 CLR 444 at 454; [27]). In principle, that should apply as well to sentence proceedings, as it does to the trial in which guilt is decided. The difficulty for Ms Mayen is that her counsel expressly waived that right and there can be no error in the learned magistrate relying on that waiver, perhaps.

17. In one of the authorities relied upon by the High Court in Ebatarinja v Deland, that is, R v Lee Kun [1916] 1 KB 337 at 342-3, the UK Court of Appeal said:

The more difficult question arises when an accused foreigner, ignorant of the English language, is defended by counsel but no application is made to the Court for the translation of the evidence. There is no rule of law to be found in the books on the subject, and as a result of inquiry which we have made since the argument, it has become clear that the practice of the Courts in this respect has varied considerably during the last fifty years. It was stated at the bar by counsel for the Crown that the practice has been for the Court not to require the translation of the evidence unless the accused or his [or her] counsel applied for it. There is no doubt that this practice has been followed by some judges; whereas other judges, having inquired at the outset of the trial whether the accused or his [or her] counsel wished the translation to be made and if the answer was in the negative they have permitted the trial to proceed without having the evidence interpreted to the accused. Again, some judges have always insisted upon the translation except when the accused or his counsel stated that he did not wish it, and other judges have required translation, notwithstanding such a statement. The only practice in this respect upon which there has been uniformity is that whenever any desire has been manifested by the accused or his [or her] counsel for the translation it has always been permitted.

We have come to the conclusion that the safer, and therefore the wiser, course, when the foreigner accused is defended by counsel, is that the evidence should be interpreted to him [or her], except when he [or she] or counsel on his [or her] behalf expresses a wish to dispense with the translation and the judge thinks fit to permit the omission; the judge should not permit it unless he is of opinion that because of what has passed before the trial the accused substantially understands the evidence to be given and the case to be made against him [or her] at the trial.

To follow this practice may be inconvenient in some cases and may cause some further expenditure of time; but such a procedure is more in consonance with that scrupulous care of the interests of the accused which has distinguished the administration of justice in our criminal Courts, and therefore it is better to adopt it. No injustice will be caused by permitting the exception above mentioned.

18. I note also that a good behaviour order was made in respect of Ms Mayen. Section 102 of the Crimes (Sentencing) Act provides:

(1) The court must ensure that reasonable steps are taken to explain to the offender in general terms (and in language the offender can readily understand) -

(a) the nature and conditions of the good behaviour order; and

(b) the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005; and

(c) the consequences if the offender breaches the obligations.

Note An offender may breach the obligations by failing to comply with them (see Legislation Act, dict, pt 1, def breach).

(2) Failure to comply with this section does not invalidate the good behaviour order.

19. That makes it clear that the court has an obligation to ensure that the defendant is able to understand what is said and what is done. Indeed, the section expressly refers to "in language the offender can readily understand".

20. While that does not invalidate the sentence, in these circumstances it seems to me there is every risk that there was not a fair trial. It seems to me that the reference to "a linguist" may well be taken to have given the learned Chief Magistrate an indication that, as the UK Court of Appeal required, her Honour had to ensure that there was an understanding by the offender of the proceedings. That may impose on the court an obligation to ensure that the right to an interpreter is genuinely being waived, and that matters, such as s 102 of the Crimes (Sentencing) Act 2005, can be complied with, notwithstanding. That a failure may constitute a breach of the fair trial right shows how significant is this issue.

21. In the circumstances, I am prepared to grant leave to appeal.

22. The notice of appeal has actually been filed on 2 August 2013, so I will also extend the time within which it may be lodged to 2 August 2013.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Respondent: ACT Director of Public Prosecutions