Proposed Applicant v Proposed Respondent

1 Julian Knight is a prisoner detained at Port Phillip Prison. He pleaded guilty on 28 October 1988 to seven counts of murder and 46 counts of attempted murder, committed by him in Hoddle Street, Clifton Hill on 9 August 1987. On 10 November 1988, Mr Knight was sentenced by Hampel J of this Court to life imprisonment in respect of each of the seven counts of murder, with a minimum term of 27 years, during which he would not be eligible for parole.[1] The sentencing judge noted Mr Knight's co-operation with investigating police and his plea of guilty as 'significant mitigatory factors',[2] although these were 'outweighed by the nature and multiplicity' of his crimes and 'the requirement that the sentences must be proportionate to the crimes'.[3]

2 On 19 October 2004, Mr Knight was declared a vexatious litigant.[4] Since 30 August 2016, he has been subject to an indefinite general litigation restraint order, under Pt 4 of the Vexatious Proceedings Act 2014 (Vic).[5] The effect of this order is that Mr Knight must not, without leave, commence any proceeding, whether civil or criminal, in a Victorian court or tribunal.[6]

3 Mr Knight has applied, under s 54 of the Vexatious Proceedings Act, for leave to commence an application under s 313 of the Criminal Procedure Act 2009 (Vic) for an extension of time within which to appeal against his conviction and sentence, as well as leave to file an appeal against his conviction[7] and an appeal against the sentence imposed.[8] He also seeks an interlocutory order against the General Manager of Port Phillip Prison that he have access to the means of examining electronic legal files and producing court documents on a full time basis (i.e. access to a computer on a daily 'in-cell' basis). He may not make that interlocutory application without leave.

4 For the reasons that follow, I have decided that Mr Knight should not have leave to make the proposed interlocutory application for an order requiring the General Manager of Port Phillip Prison to grant him full-time access to a computer in his cell. I will give him an opportunity to file a further affidavit and written submissions in support of his application for leave to proceed with his proposed application to extend time to file an appeal against conviction or sentence.

5 Under s 55 of the Vexatious Proceedings Act, the Court may grant leave to commence a proceeding if satisfied that the proceeding is not a vexatious proceeding and there are reasonable grounds for the proceeding. A 'proceeding' includes 'any proceeding (including an interlocutory application) taken in connection with or incidental to a proceeding before an Australian court or tribunal'.[9]

6 There are reasonable grounds for a proposed proceeding if the applicant for leave establishes a 'real or reasonable prospect' that the claim for relief can succeed.[10] A 'vexatious proceeding' is defined in s 3 to include:

(a) a proceeding that is an abuse of the process of a court or tribunal;

(b) a proceeding commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose;

(c) a proceeding commenced or pursued without reasonable grounds;

(d) a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose;

7 In addition, s 58 of the Vexatious Proceedings Act provides:

A Victorian court or tribunal may dismiss an application for leave to proceed made by a person if the Victorian court or tribunal is not satisfied that the application is materially different to a previous application made by that person.

8 Mr Knight filed an affidavit affirmed on 4 April 2019 in support of his application for leave to proceed. As required by s 56 of the Vexatious Proceedings Act, Mr Knight disclosed in his affidavit details of his previous applications for leave to proceed. These included many applications for leave to commence proceedings challenging the refusal of prison authorities to provide him with full-time access to a computer in his cell.[11] Although he was granted leave to proceed on several occasions,[12] none of his applications have achieved the outcome that he seeks.[13] Most recently, in Knight v Wilson,[14] Moore J refused leave to commence three separate interlocutory applications that Mr Knight proposed to make, seeking a declaration that his 'common law right to unimpeded access to the Court entails access to computer facilities'.

9 Mr Knight's affidavit did not satisfy me that this proposed interlocutory application was materially different from his numerous other proposed applications made in pursuit of his desire for access to a computer in his cell. For substantially the same reasons given by Moore J in Knight v Wilson,[15] his application for leave to proceed with the interlocutory application should be dismissed, under s 58 of the Vexatious Proceedings Act.

10 There is an additional reason why leave to proceed with the proposed interlocutory application should be refused in this case. On the material before me, the proposed substantive proceedings appear to be hopeless. Mr Knight's affidavit does not establish a 'real or reasonable prospect' that he can succeed in obtaining an extension of time within which to commence an appeal against his conviction and sentence, or that there are reasonable grounds for an appeal.

11 The Criminal Procedure Act provides that an appeal against either conviction or sentence must be filed within 28 days after the day on which the person is sentenced or any extension of that period granted under s 313.[16] Mr Knight was sentenced in November 1988, and the appeal period expired more than 30 years ago. Even if he was not subject to a general litigation restraint order, he could not commence an appeal against his conviction and sentence unless he first obtained an extension of time. Further, appeals under ss 274 and 278 of the Criminal Procedure Act require leave of the Court of Appeal.

12 Section 313 of the Criminal Procedure Act provides:

(1) The Court of Appeal or, in accordance with the rules of court, the Registrar of Criminal Appeals of the Supreme Court at any time may extend the time within which -

(a) a notice of appeal or notice of application for leave to appeal may be filed under this Part; or

(b) a notice referred to in paragraph (a) may be served.

(2) If the Registrar of Criminal Appeals of the Supreme Court refuses an application to extend time under subsection (1), the applicant is entitled to have the Court of Appeal determine the application.

13 The discretion under s 313 is unfettered and must be exercised by reference to the justice of each case. The Court of Appeal has developed principles to guide the proper exercise of the discretion, which were recently restated in Monforte v The Queen:[17]

Those principles were summarised by Redlich JA in Bowling v The Queen as follows:

[16] The time limits set out in the rules of Court are not to be treated as some empty formality. The rules are intended to ensure finality of the litigation and compliance with time limits will be required in the ordinary case. The applicant must generally place material before the Court which will persuade the Court that there are special and substantial reasons to extend the time.

[17] The longer the time which has elapsed since the expiration of the prescribed period, the more special the circumstances will have to be. Where there is a considerable lapse of time, the practice of the Court is not to grant the extension unless the Court is satisfied that there are such merits in the proposed appeal that it would probably succeed. These considerations have been repeated by this Court on numerous occasions.

[18] An applicant who is dilatory or who has acted so as to indicate that they do not intend to appeal has no entitlement to an expectation that the discretion will be exercised in their favour. Even where the applicant demonstrates that there are substantial reasons for delay, if there has been a significant delay, the grant of an extension of time will ordinarily depend upon the applicant establishing that the decision is so attended by doubt as to render it likely that the appeal will succeed.

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

In the present case, there is a public interest in maintaining the finality of the statutory time limit given the nature of the offending and its impact upon the victim.

14 Omitting those parts of his affidavit that referred to his status as a vexatious litigant and disclosed details of his previous applications for leave to proceed, the affidavit read:

1. I am a 50-year-old prisoner serving a life sentence in Port Phillip Prison ("PPP") at Truganina. PPP is a private prison operated by G4S. The proposed proceeding to which this affidavit applies concerns an appeal against conviction and an appeal against sentence filed out-of-time (the convictions and sentences were imposed in 1988).
2. On 9 August 1987, I was arrested in Melbourne following my commission of a mass shooting in Hoddle Street, Clifton Hill.
3. On 11 August 1987, I was received into the Victorian prison system at Her Majesty's Prison Pentridge. I have been a prisoner in the Victorian prison system ever since.
4. On 28 October 1988, I plead guilty to 7 counts of murder and 46 counts of attempted murder in the Supreme Court of Victoria at Melbourne.
5. On 10 November 1988, I was sentenced by Hampel J to life imprisonment with a minimum non-parole term of 27 years (see R v Knight [1989] VR 795).

...

Current access to computer facilities

1. Between 8 December 2017 and 15 January 2018, I had access to a prison-issue laptop computer on a full-time "in-cell" basis (i.e. 168 hours per week).
2. On 15 January 2018, the laptop computer I had access to was retrieved by prison management.
3. From 18 January 2018, I have been permitted to access the laptop computer in the Port Phillip Prison library for 2 hours on a Tuesday afternoon and for 2 hours on a Thursday afternoon. Despite repeated requests to the General Manager of Port Phillip Prison to return to access on a full-time "in-cell" basis or to alternatively to have access at the prison library extended, my access to computer facilities remains limited to 4 hours per week in the prison library.
4. My requests to have court and other documents printed have taken up to 5 weeks to be actioned. My requests to purchase my own printer have been refused.
5. The majority of my legal files are stored on CD or DVD. These CDs and DVDs are almost all in my possession. On 20 March 2018, the CD drive on the laptop was deactivated by one of the prison's IT officers. My repeated requests to have access to this drive reactivated have been refused.
6. A prisoner recently at PPP was permitted by the General Manager to access the prison library four afternoons a week (i.e. 8 hours). The reason for the granting of this access was because he was studying a single university subject via distance education.
7. During 17-31 May 2018, I did not have access to the laptop computer because it had been removed from the prison for auditing by G4S IT personnel. No alternative arrangements for access to computer facilities were implemented during this time.

Preparation of appeals against conviction and sentence

1. My preparation of my proposed appeals against conviction and against sentence involves an examination of the material filed as part of the presentment in my case. Part of this process entails an examination of a re-enactment video with the bodies of my victims in situ in Hoddle Street. Now produced and shown to me and marked "Exhibit JK-1" is a screen shot of the night-time re-enactment video which was included as an exhibit in the presentment filed against me. I commenced examining and transcribing this video in the privacy of my own cell during the period I had access to the laptop computer on an "in-cell" basis. I have now [been] forced to undertake this process in public in the prison library.
2. My preparation of my proposed appeals against conviction and against sentence involves an examination of the material filed as part of the presentment in my case. Part of this process entails an examination and cataloguing of the 354 crime scene and autopsy photographs taken in my case. Now produced and shown to me and marked "Exhibit JK-2" are examples of the crime scene and autopsy photographs which were included as exhibits in the presentment filed against me.[18] I commenced examining and cataloguing these photographs in the privacy of my cell during the period I had access to the laptop computer on an "in-cell" basis. I have now [been] forced to undertake this process in public in the prison library.

15 While Mr Knight's affidavit argued his case for access to a computer in his cell in order to prepare his proposed appeal, it said nothing about his proposed grounds of appeal against either conviction or sentence. In particular, he did not explain the basis on which he proposed to appeal against his conviction on charges to which he pleaded guilty. Nor did he give any indication of how it might now be argued that the sentence imposed was manifestly excessive or otherwise wrong.

16 The material that Mr Knight wishes to analyse using an in-cell computer was - as he deposed - material that was included in the presentment filed against him. It was available to him and his lawyers when he was sentenced in 1988.[19] There is no suggestion that the analysis he wishes to undertake might provide fresh evidence that was not reasonably available at the time he was sentenced.

17 Further, Mr Knight has proffered no explanation for the extraordinarily long delay - more than 30 years - between the expiry of the appeal period and the application for leave to proceed. A compelling explanation of the delay is required, given the strong public interest in maintaining the finality of his conviction and sentence.[20]

18 It is possible that Mr Knight's belated interest in an appeal was prompted by the enactment of s 74AA of the Corrections Act 1986 (Vic). That section provides that the Adult Parole Board may make an order for release on parole in respect of 'the prisoner Julian Knight' if, and only if, it was satisfied that he was in imminent danger of dying, or was seriously incapacitated, and as a result he no longer had the physical ability to do harm to any person, that he had demonstrated that he did not pose a risk to the community, and that, because of those circumstances, the making of the order was justified.

19 Section 74AA was inserted into the Corrections Act with effect from 2 April 2014, about a month before the expiry of Mr Knight's non-parole period. A challenge by Mr Knight to the validity of s 74AA was dismissed by the High Court in August 2017.[21] The effect of s 74AA is that Mr Knight cannot be released on parole unless he is in imminent danger of dying or becomes seriously incapacitated. This makes it more difficult for Mr Knight to obtain a parole order after the expiration of the non-parole period, although the fixing of the minimum term by Hampel J said nothing about whether or not Mr Knight would be released on parole after the end of that term.

20 As the High Court made clear, however, s 74AA did not contradict or alter the sentence imposed on Mr Knight in 1988. The sentence of life imprisonment remains the same, and is not made 'more punitive or burdensome to liberty' by s 74AA.[22] His sentence is unchanged, and the enactment of s 74AA does not appear to me to give rise to any ground of appeal against sentence that was not available to Mr Knight when the sentence was first imposed.

21 Now that I have identified these difficulties with the substantive proceedings that Mr Knight seeks leave to commence, he may wish to provide a further affidavit and written submissions in support of his application for leave to proceed. I will give him leave to file any further material by Friday, 28 February 2020. I will consider any further material filed by that date, before making a final decision on the application.

[1] R v Knight [1989] VicRp 62; [1989] VR 705. A sentence of 10 years' imprisonment was imposed for each of the 46 counts of attempted murder, to be served concurrently with each other and with the life sentences.

[2] R v Knight [1989] VicRp 62; [1989] VR 705, 709-710.

[3] R v Knight [1989] VicRp 62; [1989] VR 705, 710.

[4] Attorney-General v Knight [2004] VSC 407.

[5] Attorney-General for the State of Victoria v Knight [2016] VSC 488.

[6] Vexatious Proceedings Act 2014 (Vic), ss 6(1) and 30(1).

[7] Under s 274 of the Criminal Procedure Act 2009 (Vic).

[8] Under s 278 of the Criminal Procedure Act.

[9] Vexatious Proceedings Act, s 3 - definition of 'proceeding', paragraph (b).

[10] Knight v Corrections Commissioner [2016] VSC 50, [97], [100].

[11] Affidavit of Julian Knight affirmed 4 April 2019, [15], [31], [50], [64], [76], [85], [91], [125], [147], [159], [171], [202].

[12] Knight v Hastings [2010] VSC 99, [208], [211] (leave to appeal refused in The Commissioner, Corrections Victoria v Knight [2010] VSCA 203; (2010) 31 VR 567); Knight v Wise [2011] VSC 313; Knight v Wise [2014] VSC 76.

[13] Knight v Money [2009] VSC 242; Knight v Hastings; Knight v Wise [2012] VSCA 315; Knight v Adult Parole Board (25 October 2012, unreported, Macaulay J); Knight v Wise (No. 2) [2013] VSC 339; Knight v Wise [2014] VSC 639; Knight v Wise [2015] VSC 157; Knight v Corrections Commissioner [2015] VSC 545.

[14] [2019] VSC 373.

[15] [2019] VSC 373, [37]-[42].

[16] Criminal Procedure Act, ss 275(1) and 279(1).

[17] [2018] VSCA 277, [22]-[24] (citations omitted). See also Bowling v The Queen [2013] VSCA 87, [16]-[18] and Madafferi v The Queen [2017] VSCA 302, [11].

[18] The Prothonotary did not require this exhibit for filing.

[19] Mr Knight was represented at his plea by Mr Richter QC and Mr Pirrie, instructed by the Legal Aid Commission: see R v Knight [1989] VicRp 62; [1989] VR 705.

[20] Monforte v The Queen [2018] VSCA 277, [24].

[21] Knight v State of Victoria [2017] HCA 29; (2017) 261 CLR 306.

[22] Knight v State of Victoria [2017] HCA 29; (2017) 261 CLR 306, [29].