The applicant's basis for bringing the appeal again and out of time is set out in his Notice of Application for Leave to Appeal as follows:
"There has been a lapse of time since date [sic] her Honour refused the application to reverse Mr Zafiratos' pleas and the matter has now progressed through to a lengthy disputed facts hearing before Judge Lakatos. As a result of those proceedings there has been material produced which was not available to either party when the matter was determined by Judge Tupman. Consequently this will form the basis of this appeal."
On the afternoon before this application was heard, the applicant filed various handwritten submissions and other documentation. Included in his written notes is an assertion that, since the hearing before Tupman DCJ, material has come to light supporting the applicant's argument that the plea offer was in terms that, if he pleaded guilty to the charges contained on the indictment presented on 8 August 2013, the DPP would not proceed further with an indictment containing an allegation of sexual assault.
During the hearing of the application the applicant read from a document said to be bail submissions from the DPP and submitted the following:
"On the 16th of this year, 16th of last month I made a bail application before Judge Lakatos before he left for holidays. He is on holidays until Monday. Now, up until now, apart from what my lawyer and what my barrister at that time said, was the Crown denying there was a plea deal and offer on the table. This is the submission the Crown made on 16th of last month. It says here,
"The applicant was originally committed for trial in December in relation to the fraud matters, the sexual assault matter. A large number of fraud matters were still in the Local Court and the intention was to just have all matters dealt with together. A trial date of 5th of August was set, estimate five weeks, so they can marry them because they wanted to run it on the same bill. During the course of time negotiations took place resulting in some pleas of guilty in relation to a number of offences, some matters being withdrawn on the basis of the plea, other offences taken to trial."
When it was drawn to the applicant's attention in the course of the hearing of the application that Tupman DCJ made no finding either way as to whether any agreement had occurred, the applicant sought to refer to comments made by her Honour during exchanges with counsel. It was explained to him that error has to be shown in what her Honour stated in her reasons rather than comments made during the proceedings themselves.
The applicant did not raise any other ground of appeal in his written documentation beyond that referred to above at [25].
The applicant made the following submissions explaining the delay in this matter and the reasons he now wishes to pursue his appeal.
First, he informed the court that he had abandoned his original application to this Court in response to an offer by the DPP to "no bill" three outstanding fraud charges to which he had not yet pleaded. What ultimately occurred was that, on 22 January 2016, the DPP indicated that there would be no further proceedings in relation to those three charges and the applicant pleaded not guilty to a lesser charge contained in an ex officio indictment and acknowledged his guilt in relation to two matters on a Form 1. The applicant complained that this process took much longer than he expected.
Second, the applicant stated that he had been in contact with the Royal Commission into Institutional Responses to Child Sexual Abuse. That process had caused him a great deal of stress and anxiety.
Third, he stated that, because he had been charged with sexual assault for a period of time, he was still being incarcerated in conditions of strict protection with only limited access to a computer. This was said to be because the authorities were reluctant to move him from limited association to reside in the general prison population.
Fourth, he said that he only abandoned his initial application because he thought that the proceedings on sentence would progress more quickly than they have. They have taken so much time that he now wishes to re-activate his application under s 5F(3).
Finally, the applicant submitted that he had been informed in the course of past unsuccessful bail applications that, on his release from NSW custody, it is likely Queensland police will seek to extradite him to that State to answer outstanding charges. If that were to occur, he would have significant difficulty prosecuting his appeals against conviction and sentence after the matter is finalised in the District Court.
Throughout his submissions, the applicant strongly submitted that he is not guilty of the 11 counts in question and that he could persuade a jury of this if he were given the opportunity to defend the allegations.
[2]
The respondent's submissions
The respondent opposed the application for an extension of time. In written submissions filed on 21 July 2016, the respondent contended that there was no substance to any of the issues raised by the applicant; that the previous appeal was deliberately abandoned in circumstances where to maintain the abandonment would not lead to any miscarriage of justice; and that there is no satisfactory explanation for the delay in seeking to reinstate the appeal.
It is not necessary to summarise the respondent's submissions insofar as they relate to the merits of the appeal.
The respondent submitted that the circumstances in which the applicant's legal representatives withdrew from the previous appeal and the number of occasions on which an intention to abandon the appeal was expressed weigh heavily against the application for an extension of time. It was submitted that the maintenance of the abandonment in the circumstances of this case would not lead to a miscarriage of justice: Morgan v R (No 2) at [80].
Further, the respondent submitted that the applicant failed to articulate a meaningful explanation for the delay in bringing the application. It did not accept, contrary to what the applicant contended, that there is any new material available. In any event, an appeal would be determined on evidence before Tupman DCJ.
The respondent relied upon its written submissions at the hearing of the application.
[3]
Consideration
The applicant has failed to provide any adequate explanation for the delay in this matter. The effect of his submissions to the Court is that he was prepared to abandon his application and be sentenced when he thought the matter would be resolved quickly, but in hindsight he regrets that decision as the proceedings have not progressed quickly in the District Court.
It is worth noting the reasons that the proceedings have been delayed. It has now been almost three years since the applicant pleaded guilty to these charges. The delay since then has been a result of the applicant changing his legal representatives, seeking to reverse his guilty pleas, commencing and then abandoning an interlocutory appeal to this Court and then requiring 14 witnesses for cross-examination at a prolonged disputed facts hearing. These were all forensic decisions available to the applicant at each step of the proceedings, but the procedural history of this matter gives rise to the inescapable conclusion that the delay in this matter has been at the applicant's own hands. His explanation for now wishing to appeal again from the decision of Tupman DCJ includes a complaint that the proceedings have involved considerable delay. It is difficult to reconcile this submission with the fact that there would be even further delay if this appeal were to proceed further, especially at a time when the lengthy sentencing proceedings are almost finalised.
The only ground advanced by the applicant in his Notice of Application for Leave to Appeal concerns a factual matter that ultimately played no role in Tupman DCJ's ultimate findings. The question before Tupman DCJ was whether a miscarriage of justice would result if the applicant were not permitted to withdraw his pleas: R v KCH (2001) 124 A Crim R 233 at [32]. The applicant's complaint appears to be, contrary to the findings of Tupman DCJ, that he only entered his pleas of guilty to the fraud charges because the DPP offered to drop the sexual assault charges if he did so. The sexual assault charge was in fact dropped, although there is no evidence before the Court that this occurred because of any plea offer. The applicant's complaint is that such a plea offer was improper and he seeks to establish that such an offer was made to show that he only pleaded guilty on the basis of an "improper" plea offer.
As set out above, Tupman DCJ concluded that she did not need to make any finding either way as to whether such a plea offer was in fact made in order to dispose of the application before her. This being the only ground of appeal advanced by the applicant, it could not be said that to refuse the applicant an extension of time would cause any miscarriage of justice.
Matters raised by the applicant such as his prior history of sexual abuse and his incarceration in strict protection can relied upon in his proceedings on sentence. He may then appeal to this Court, with leave, against any sentence imposed as well as against his conviction.
It is for these reasons that I joined in the order of the Court on 22 July 2016 that an extension of time to seek leave to appeal against the decision of Tupman DCJ on 26 February 2015 be refused.
[4]
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Decision last updated: 03 August 2016
Clause 5B of the Criminal Appeal Rules provides that any party seeking leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 from any interlocutory order shall give notice of application for leave to appeal within 14 days of the date of judgment or order. In circumstances where the application is significantly out of time, it is necessary for this Court to have regard to whether any adequate explanation has been provided for the delay.
Furthermore, a previous application having been abandoned, there is authority for the proposition that a court would not extend time to re-file a further application unless to refuse to do so would cause a miscarriage of justice: Morgan v R (No 2) [2013] NSWCCA 80 at [80].
The relevant questions for this Court to consider are hence whether there is a satisfactory explanation for the delay and whether to refuse an extension of time would lead to any miscarriage of justice. The latter of these two matters involves, to a limited extent, having regard to the proposed ground(s) of appeal.