Plaintiff v First Defendant

1 On 15 March 2017, police executed a search warrant at Mai Cao's home in Ardeer. The items seized during the search included a bag containing a block of a white chalk-like substance, which was found in the lounge room. Ms Cao was arrested and interviewed, with the assistance of a Vietnamese interpreter, in relation to trafficking heroin. Ms Cao denied knowing anything about the substance found in her lounge room, and said that it must have belonged to her husband - who was at that time serving a sentence of imprisonment for trafficking heroin. She was charged with offences including trafficking a drug of dependence, namely heroin, contrary to s 71AC of the Drugs Poisons and Controlled Substances Act 1981 (Vic).

2 Soon after Ms Cao was charged, the Director of Public Prosecutions applied to the County Court for a restraining order under s 18 of the Confiscation Act 1997 (Vic), in relation to the Ardeer property. A restraining order was made by Judge Lacava on 11 April 2017. Ms Cao instructed Anh Liang of Giorgianni & Liang Lawyers in relation to the confiscation proceeding. In May 2017, Giorgianni & Liang filed an application by Ms Cao for exclusion from the restraining order, under s 20 of the Confiscation Act. The application was stayed pending finalisation of the criminal charges.

3 The criminal charges were dealt with at the Magistrates' Court at Sunshine on 25 May 2018. Ms Cao was represented by Sophie Brooks-Miller of Richard Revill Lawyers, the solicitors she had instructed in relation to the criminal charges. An interpreter was present in court. After some discussion, Magistrate Holzer gave a sentencing indication in the following terms:

Well, Ms Cao, I'll direct my remarks directly to you. I think the case against you is a strong case and, if proven after a contest, likely to lead to a jail sentence. Objectively, the evidence points in that direction, I think. The spot test has already been done ... [and] that suggests that the substance was indeed heroin. If you enter a plea today, I'd anticipate that police would withdraw charge 2 as the alternative to charge 1. There'd be forfeiture of the heroin, so too the cash money given to her on charge 3. And you'd be subject to a community corrections order, with conviction. You have a choice to accept an indication or to run it as a contest. I can't advise you what to do but I suggest that you speak further to [Ms Brooks-Miller] before you finally determine what you want me to do today.

4 Ms Cao accepted the indication and pleaded guilty to the charge of trafficking heroin. She was convicted and sentenced to a community corrections order for 12 months, with a condition that she perform 150 hours of unpaid community work.

5 Section 35 of the Confiscation Act provides for automatic forfeiture of restrained property on conviction of certain offences - including the trafficking offence to which Ms Cao pleaded guilty on 25 May 2018.[1] Ms Cao says that she believed that all matters against her were finalised on the completion of her community service, and that she was not aware that any matter remained before a court after she had pleaded guilty. In particular, she says that at no time was she advised by any person that should she plead guilty she would automatically lose her home.

6 Ms Cao says that she first became aware that the restraining order remained in place over the Ardeer property in about June 2019, when she used the property as security for a loan and her lender encountered difficulty registering the mortgage. She instructed a new solicitor, Jodi Lanham of Lanham Lawyers, in June 2019. Ms Lanham promptly wrote to Richard Revill Lawyers, requesting a copy of the criminal file. The file was eventually provided in January 2020. Ms Lanham does not say whether she also made inquiries of Giorgianni & Liang in relation to the confiscation proceeding.

7 In March 2020, Ms Cao made another application to the County Court for exclusion from the restraining order, under s 20 of the Confiscation Act, and also sought variation of the restraining order, under s 26. However, by the time of the first directions hearing on 26 May 2020, Ms Cao had taken steps to revive the criminal proceeding. The proceeding under the Confiscation Act is currently stayed, pending the outcome of the criminal proceeding.

8 On 22 May 2020, Ms Cao filed an appeal to the County Court against her conviction and sentence, under s 255 of the Criminal Procedure Act 2009 (Vic). Her appeal was commenced 699 days after the expiry of the 28 day appeal period prescribed by s 255(1). Because the appeal was filed late, it was deemed to be an application for leave to appeal.[2]

9 Ms Cao's application for leave to appeal was heard by Judge Tinney of the County Court on 30 September 2020. His Honour refused the application, because he was not satisfied that the delay in commencing the proceeding was due to exceptional circumstances, and because he was satisfied that the prosecution case would be materially prejudiced because of the delay. As required by s 263(3) of the Criminal Procedure Act, his Honour struck out the appeal.

10 In this proceeding, Ms Cao seeks judicial review of the order of the County Court made on 30 September 2020, refusing leave to appeal and striking out the appeal. The relief she claims includes an order quashing and setting aside the County Court's order. At trial, she clarified that she also sought an order remitting her application for leave to appeal to the County Court for further hearing and determination.

11 It is significant that this is a judicial review proceeding, in which Ms Cao invokes the Supreme Court's jurisdiction to supervise the acts of inferior courts and other tribunals. It is not an appeal on the merits. The relief sought by Ms Cao may only be granted if she establishes that the order of the County Court was affected by one or more distinct categories of error, namely 'jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and "error of law on the face of the record"'.[3]

12 For the reasons that follow, the proceeding must be dismissed.

13 Section 254 of the Criminal Procedure Act enables a person convicted of an offence by the Magistrates' Court in a criminal proceeding conducted in accordance with Pt 3.3 to appeal to the County Court against conviction and sentence, or sentence alone. Section 255(1) provides that an appeal under s 254 is commenced by filing a notice of appeal with a registrar of the Magistrates' Court within 28 days after the day on which the sentence of the Magistrates' Court is imposed. An appeal under s 254 is conducted as a rehearing, and the appellant is not bound by the plea entered in the Magistrates' Court.[4]

14 In relation to appeals filed more than 28 days after the sentence was imposed by the Magistrates' Court, s 263 of the Criminal Procedure Act provides:

Late notice of appeal deemed to be application for leave to appeal

(1) A notice of appeal filed after the end of the period referred to in section 255(1) or 258 is deemed to be an application for leave to appeal on the grounds stated in the notice.

(2) The County Court or the Supreme Court, as the case requires, may grant leave to appeal under subsection (1) and the appellant may proceed with the appeal if -

(a) the court considers that the failure to file a notice of appeal within the period referred to in section 255(1) or 258 was due to exceptional circumstances; and

(b) the court is satisfied that the respondent's case would not be materially prejudiced because of the delay.

(3) If the court does not grant leave to appeal under subsection (2), the court must strike out the appeal.

...

15 Generally, where an appellant appeals against sentence and is not in custody because of that sentence, the appeal operates as a stay of the sentence but not the conviction.[5] If an appeal is struck out under s 263(3), the sentence of the Magistrates' Court is reinstated.[6] In this case, however, Ms Cao had served her entire sentence before her appeal was filed.

16 An applicant for leave to appeal out of time bears the onus of establishing that the failure to file the appeal within time was due to exceptional circumstances - that is, circumstances that rarely occur or are outside reasonable anticipation or expectation. The inquiry is directed to the circumstances relevant to the failure to appeal within time, rather than to the subject matter or merits of the appeal.[7]

17 At the conclusion of the hearing on 30 September 2020, the judge gave oral reasons for refusing leave to appeal. After outlining some material facts, his Honour referred to the two conditions that had to be satisfied under s 263 of the Criminal Procedure Act before he could grant leave to appeal:

I must consider that the failure to file a notice of appeal within the relevant period, which is 28 days, was due to exceptional circumstances. It's the first precondition, and there's a second. I must be satisfied that the Respondent's case would not be materially prejudiced because of the delay. The Applicant has to satisfy me in relation to finding on the first of those matters, and the court has to be satisfied - I use that neutral term - I have to be satisfied that there would not be any material prejudice because of there being any delay. If I am not so satisfied in relation to either of those matters, then leave ought not be granted.

18 His Honour identified the foundation of Ms Cao's application to be 'the injustice of the likely forfeiture of the restrained property being her house, and her understanding as to that not being an outcome to be contemplated'. In relation to that claimed understanding, the judge found that:

(a) Ms Cao was on notice of the restraining order made in April 2017, and instructed Giorgianni & Liang to make an exclusion application on her behalf. She was also on notice that the exclusion application was stayed pending the outcome of the criminal charges.

(b) On 25 May 2018, Ms Cao was present in court, understood what was happening, instructed her lawyer to accept the sentence indication given by the magistrate, and pleaded guilty.

(c) Even making allowances for language difficulties, given that Ms Cao had instructed lawyers in relation to the restraining order, it was 'terribly difficult to accept that account of her belief that the restraining order issue had evaporated'. At best, nothing was said specifically about the restraining order on the day of the guilty plea at the Magistrates' Court.

(d) At the latest, Ms Cao understood the ramifications of the Confiscation Act by mid-June 2019. Her appeal was lodged more than 11 months later, close to 700 days after the time limit had expired.

(e) There was a 'vacuum' in the evidence as to the basis for Ms Cao's claimed belief that the guilty plea in the Magistrates' Court would 'wish away in a way the Confiscation Act provisions'. Ms Cao had previously been on notice and had previously instructed solicitors in relation to the confiscation proceeding. There was no evidence from either Ms Cao or the lawyer who appeared on her behalf in the Magistrates' Court as to what, if anything, was said about that proceeding. Nor was there any evidence from Giorgianni & Liang as to how the matter was left in April and May 2017. It was adjourned to a date to be fixed pending the outcome of the criminal charges, and so it was 'impossible to think otherwise than that there would have been some communication of the fact that [the] matter has not been finally resolved'.

(f) It was possible that Ms Cao had a hope that the confiscation proceeding would go away, but 'there is no material before me that provides any sensible basis for her to have had that belief'.

(g) The best case was that Ms Cao had wished away the potential ramifications of the confiscation proceeding, had not really thought about it, had hoped for no good reason that it had gone away, and was ignorant of those things.

19 The judge also referred to the argument put on behalf of Ms Cao that the interpretation of her record of interview on 15 March 2017 had been inaccurate, and that the inaccuracies had affected the sentence indication given by the magistrate. His Honour rejected that argument, saying that the concept of the magistrate relying on the interview to convict and sentence 'is just not what happened'. The transcript indicated that the magistrate had not significantly relied on the interview - in which Ms Cao denied all knowledge of the substance found in her lounge room - in assessing the strength of the prosecution case. The judge did not accept the submission that there had been a miscarriage of justice as a consequence of an incompetent and deficient interpreter. He also observed that the lion's share of the submissions made for Ms Cao - which centred around the police interview - were misconceived.

20 By reference to those considerations, his Honour concluded that he was not satisfied that Ms Cao's failure to file a notice of appeal within 28 days was due to exceptional circumstances.

21 In relation to material prejudice, the judge found that the primary exhibit - the substance found in Ms Cao's lounge room - had been destroyed after the guilty plea and expiry of the appeal period. It had been photographed and there had been a spot test, but that was all. The destruction of the principal exhibit amounted to very substantial prejudice to the prosecution case, even accepting that other exhibits might still exist. On that basis, his Honour was positively satisfied that the prosecution case would be materially prejudiced.

So, I'm not satisfied that there's exceptional circumstances. I'm satisfied positively that there would be material prejudice in any event because of the delay. I don't grant leave. I'll strike out the appeal in this case.

23 At the start of the trial in this proceeding, counsel for Ms Cao indicated that she proposed to call Ms Cao and her former solicitor, Mr Revill, to give evidence. Their evidence was said to concern whether Ms Cao was given appropriate legal advice as to the elements of the offences charged, her right to enter a plea of not guilty, the impact of a guilty plea on the confiscation proceeding, and her absolute right to appeal the conviction within 28 days after the sentence being imposed. Mr Revill had been served with a subpoena to attend and give evidence at the trial.

24 The general rule in judicial review proceedings is that the legality of a decision is determined by reference to the material that was before the decision-maker when the decision was made.[8] Neither Ms Cao nor Mr Revill gave evidence at the hearing in the County Court. As the judge noted, there was a 'vacuum' in the evidence about what advice Ms Cao was given. Ms Cao sought to fill that vacuum in this proceeding, on the basis that her evidence and the evidence of Mr Revill would fall within two recognised exceptions to the general rule.

25 First, she argued that it was evidence that fell within the Prasad principle - that is, it was capable of showing that the decision-maker failed to make an obvious inquiry about a critical fact, the existence of which was easily ascertained.[9] She said that the primary judge had a duty to ensure that she had a fair hearing and was given the opportunity to put her case fully. Ms Cao pointed out that she was present in court with an interpreter and was readily available to give evidence, and submitted that she should have been called to give sworn evidence about the legal advice she received before pleading guilty in the Magistrates' Court.

26 Second, Ms Cao submitted that the evidence was capable of showing that the judge made an error as to a jurisdictional fact.[10] I understood the claimed error to be the judge's finding that exceptional circumstances were not made out, which was said to be based on an incorrect assumption that Ms Cao had been given appropriate legal advice.

27 I did not accept that the proposed further evidence fell within either exception to the general rule.

28 The Prasad principle applies in circumstances where inquiry is an aspect of the decision-maker's statutory function. For example, in a case such as Minister for Immigration and Citizenship v SZIAI,[11] the tribunal's statutory function was to undertake merits review of a decision made under the Migration Act 1958 (Cth). Another example is Chang v Neill,[12] in which the Medical Panel's function was to provide its opinion on medical questions referred to it under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). In both instances, the relevant statute empowers the decision-maker to make inquiries in order to perform their functions.[13]

29 A judge of the County Court hearing an application for leave to appeal in a criminal proceeding is in a rather different position. The judge has a fundamental duty to ensure a fair hearing, and has the powers necessary to prevent unfairness.[14] However, the duty does not extend to taking over the running of a represented party's case, or second-guessing the forensic decisions taken by her lawyers. Nor does it extend to requiring that evidence be given about privileged communications between the applicant and her former solicitors, when neither party has sought to adduce that evidence.[15]

30 In this case, Ms Cao was represented at the County Court by counsel. She had instructed a new solicitor, who had made inquiries of the firm that had previously represented Ms Cao in the Magistrates' Court. No subpoenas had been issued on Ms Cao's behalf to her former solicitors, or to the firm that represented her in the confiscation proceeding. Ms Cao was present in court, with an interpreter, and plainly could have given evidence about the advice that informed her decision to plead guilty. She was not called, and no evidence was adduced from her former solicitors. In those circumstances, the Prasad principle did not apply.

31 I did not consider that the proposed evidence might have shown that the primary judge made an error in relation to a jurisdictional fact. Here, the relevant jurisdictional fact was a subjective one - s 263(2)(a) does not require that exceptional circumstances exist as a matter of objective fact. Before the judge could grant leave to appeal, he had to consider that the failure to file a notice of appeal within time was due to exceptional circumstances.[16] On the material before him, he did not form that view. While evidence about the legal advice given to Ms Cao in relation to her guilty plea would have been relevant to the assessment, it was not a jurisdictional fact about which the judge had to make any finding.

32 For those reasons, I ruled the proposed further evidence inadmissible.

Ground 1 - Failure to consider matters relied on

33 The first ground of review in the amended originating motion was:

The learned Judge erred in not adequately considering the matters listed in the Affidavit of JODI MAREE LANHAM [Ms Cao's solicitor] sworn 26 August 2020, did deny the Plaintiff Natural Justice in pursuing her Appeal against Conviction out of time due to exceptional circumstances.

34 The essence of this ground was an argument that the primary judge 'failed to apply the necessary weight to the issue that no legal advice was given to the plaintiff regarding the adverse consequences of a guilty plea, specifically the forfeiture of [her] house because of her plea'.[17] Ms Cao submitted that her lack of knowledge of a significant consequence of her guilty plea should have been viewed as an exceptional circumstance, especially given her limited understanding of English.

35 In oral submissions, Ms Cao submitted that the primary judge made positive findings, or alternatively assumed, that she had received proper legal advice before pleading guilty. She referred to various passages in his Honour's reasons that she said amounted to implicit or explicit findings that she had received legal advice that enabled her to make an informed decision to plead guilty.

36 I have carefully reviewed the judge's reasons, including the passages referred to by Ms Cao. It is the case that the judge found that Ms Cao was aware of what she was pleading guilty to. For example, his Honour said:

So, it is quite apparent from the chronology then that the Applicant is present in the court, is awake to what is happening in court, is awake to the nature of the charges to which she is entering a guilty plea, and is awake to the actual disposition that is imposed on her, and consents to that.

These findings appear to have been based on the transcript of the hearing before the magistrate, from which it was clear that Ms Cao was present in court, with her solicitor and a Vietnamese interpreter, when the prosecution summary was read out and the magistrate gave his sentence indication.

37 Reading the judge's reasons as a whole, it is not possible to conclude that his Honour found that Ms Cao's awareness of the nature of the charges was informed by any particular legal advice. The judge noted that it was not clear from the transcript whether there was a formal standing down of the matter after the sentence indication. He did not consider that to be important because 'on any view of it' the solicitor took instructions from Ms Cao, who accepted the sentence indication and pleaded guilty. Later in his reasons, the judge went to some lengths to point out the lack of any evidence about what advice was given to Ms Cao before she pleaded guilty. He said:

Well, there are assertions that are made as to what took place in the Magistrates' Court. There is a vacuum really in the evidence before me, and the application where the Applicant has the onus of demonstrating exceptional circumstances pointing to a belief or an understanding that the guilty plea in the Magistrates' Court would ... wish away in a way the Confiscation Act provisions. Well, Ms Cao as I say, in a sense she only gives notice when in June of 2019 she's seeking legal advice as a result of the difficulties with the mortgage. But, she's previously been on notice. She's previously instructed solicitors to act on her behalf in relation to those proceedings. So, what was said in the Magistrates' Court, if anything, to provide that state of mind? Or, is it simply a failure to enquire? Well, there is no evidence placed before me either from the Applicant or from the lawyer who appeared on the occasion, Ms [Brooks-Miller], no assertion or evidentiary material really that there was a positive statement made from Ms [Brooks-Miller] to that effect. As I say, no evidence from her or sought to be called from her, and no evidence placed before me from the Applicant in that respect.

Nor, for that matter, I should say, is there any evidence placed before me as to the - - how the matter was left by the other firm of solicitors who had actually been positively instructed to act on her behalf in relation to the restraining order matter in April and May of 2017.

In short, the judge made no findings about what legal advice informed Ms Cao's guilty plea because there was no evidence about it.

38 Ms Cao relied on Kohari v R,[18] in which the Court of Appeal held that there had been a miscarriage of justice notwithstanding that the accused had pleaded guilty to a charge of cultivating a commercial quantity of cannabis. In that case, as in this one, the applicant sought leave to appeal out of time in an attempt to avoid automatic forfeiture of his house. The Court of Appeal received further evidence about the legal advice given to the applicant, and concluded that he had pleaded guilty without full knowledge of the elements of the offence and their legal consequences. In those circumstances it would have been 'an affront to justice' to allow the conviction to stand.[19]

39 An obvious difference between this case and Kohari is the lack of evidence about the advice given to Ms Cao before she pleaded guilty. In Kohari, the applicant made an affidavit setting out the basis on which he decided to plead guilty, including the advice he had received from his solicitors. The prosecution was given leave to compel the applicant's solicitors to give evidence in response to the applicant's account of the advice he received. The two solicitors gave detailed evidence about the advice they gave to the applicant, and were cross-examined.[20] By contrast, in this case there was a 'vacuum' in the evidence.

40 Ms Cao also relied on the authority of Director of Public Prosecutions v Archer,[21] which concerned an application for judicial review of a grant of leave to appeal out of time. The County Court judge who granted leave accepted that the applicant had not appealed within time because he had received incomplete or inadequate legal advice about his right to appeal, and considered that this amounted to exceptional circumstances. On review, Bell J found no error in the judge's reasoning. Archer does not assist Ms Cao because, in that case, the applicant gave evidence about the advice he had received, while in this case there was no such evidence.

41 In conclusion in relation to the first ground, I am not persuaded that the judge failed to consider the matters listed in Ms Lanham's affidavit in support of the application for leave to appeal. His Honour's reasons disclose that he considered those matters, almost all of which concerned the record of interview on 15 March 2017 and were not relevant to the delay in filing the appeal.

Ground 2 - Denial of independent legal representation

42 The second ground of review relied on by Ms Cao was:

At the time of entering her plea of guilty at the Magistrates' Court sitting at Sunshine on 25 May 2018, the Plaintiff was denied Independent Legal Representation as set out in the Affidavit of JODIE MAREE LANHAM sworn 26 August 2020.

43 In written submissions filed on behalf of Ms Cao, it was argued that the judge failed to recognise that Ms Cao did not receive legal representation when interviewed at Sunshine police station and that, given her limited English, the absence of legal representation should have been considered an exceptional circumstance. These submissions were not enlarged upon in oral argument.

44 I consider this ground to be misconceived. The judge did recognise that Ms Cao was interviewed by police without a legal practitioner present, and accepted that she might have given a 'no comment' interview if she had had legal advice. However, as his Honour explained in his reasons, the argument based on the record of interview was not relevant to whether the appeal was filed out of time due to exceptional circumstances. Further, it was plain from the transcript of the hearing before the magistrate on 25 May 2018 that, by the time Ms Cao entered her plea, she had legal representation.

45 Both grounds of review were directed to the judge's conclusion that the late filing of the appeal was not due to exceptional circumstances. Even if Ms Cao had succeeded on one of those grounds, I would have declined to quash the judge's order dismissing her application for leave to appeal. That is because his Honour could not have granted leave under s 263(2) of the Criminal Procedure Act unless he was satisfied that the prosecution case was not materially prejudiced by the delay. As noted, the judge was positively satisfied that the destruction of the main exhibit caused irremediable prejudice to the prosecution case, and that finding was not formally challenged in this proceeding.

46 Through her counsel, Ms Cao proffered an undertaking to this Court that she would admit that approximately 125 grams of heroin mixture was found in her house on 15 March 2017. She submitted that this would overcome any prejudice to the Crown resulting from the destruction of the substance seized on that day. The prosecution would still have to prove Ms Cao's knowledge of the substance and the other elements of the trafficking charge.

47 If this undertaking had been given in the County Court, the judge would have had to consider whether it remedied the prejudice to the prosecution caused by the destruction of the alleged heroin. His Honour would have had to form a view about the reliability of the proposed admission, given that Ms Cao had denied knowing anything about the substance found in her lounge room. However, no undertaking was proffered and no admission was foreshadowed in the County Court. The matter was squarely raised by both the prosecution and the judge in the course of the hearing, but counsel for Ms Cao was unable to offer any solution.

48 His Honour's conclusion that the delay had caused material prejudice to the prosecution case was sound. For completeness, I am satisfied that the judge did consider the spot test result and the use that might be made of it, in a way that was open on the material before him.

49 Ms Cao has not established that the order of the County Court was affected by any error. The proceeding must be dismissed. I will hear the parties on the question of costs.

[1] Confiscation Act 1997 (Vic), s 35(1), sch 2 item 1(ad).

[2] Criminal Procedure Act 2009 (Vic), s 263(1).

[3] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175-6 (citations omitted).

[4] Criminal Procedure Act, s 256(1).

[5] Criminal Procedure Act, s 264(1).

[6] Criminal Procedure Act, s 263(5).

[7] Shire of Carnarvon v Klein Corporation Pty Ltd [2008] VSC 24, [34]-[42]; Burlock v Wellington Street Investments Pty Ltd [2009] VSC 565, [27]; Kalb v Magistrates' Court of Victoria [2014] VSC 137, [12]-[18]. These authorities concern s 109(5) of the Magistrates' Court Act 1989 (Vic) and s 272(8) of the Criminal Procedure Act, which are in similar terms to s 263(2) of the Criminal Procedure Act.

[8] Mackenzie v Head, Transport for Victoria [2021] VSCA 100, [153].

[9] Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169-70, discussed in Mackenzie at [161]-[164].

[11] [2009] HCA 39; (2009) 259 ALR 429, [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). See also Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594, [23] (French CJ and Kiefel J).

[12] [2019] VSCA 151; (2019) 62 VR 174, [49]-[53]. See also Edwards v State of Victoria [2021] VSC 423, [70]-[71].

[13] See, eg, Migration Act 1958 (Cth), ss 424, 427(1); Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss 303(1), 307-8, 312.

[14] Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, 299-300 (Mason CJ and McHugh J), 326-9 (Deane J), 357-8 (Toohey J), 363-4 (Gaudron J).

[15] Cf Kohari v R [2017] VSCA 33, [73]-[77].

[16] Criminal Procedure Act, s 263(2)(a).

[17] Written case of the applicant dated 10 September 2021, [1].

[18] [2017] VSCA 33, [133]-[137].

[21] [2018] VSC 155.