R v Davis [2003] VSCA 173

Court of Appeal (Vic)|2003-10-30|Before: WINNEKE, A.C.J., PHILLIPS and EAMES, JJ.A.

Criminal Law - Application for extension of time to appeal against conviction and sentence - Principles enunciated - Long delay in making application requiring such merits in proposed appeal that it would probably succeed - Application dismissed.

This is an application by David Davis seeking leave to extend the time for appealing against both conviction and sentence, recorded and imposed in the year 2000. The applicant was tried in that year on a presentment alleging 66 counts of various sexual offences involving a twelve-year-old girl. He pleaded not guilty and evidence was given by the complainant by means of a VATE tape procedure. Verdicts of guilty were returned ultimately on 21 counts and he was found not guilty, either by direction or by jury verdict, on the other counts. The judge sentenced him to a total effective sentence of nine years and fixed a non-parole period of six years.

On 25 September 2000 the applicant sought leave to appeal against the sentences which had been imposed upon him and did so on the sole ground that those sentences were excessive.

In February 2001 the sentence application came before a judge of this Court pursuant to s.582 of the Crimes Act. That application was rejected.

Now, more than three years after his trial, the applicant wishes to appeal against his convictions and the sentences imposed. The application for extension of time has now been made to this Court in accordance with s.572 of the Crimes Act.

The bases upon which this Court will grant an application to extend time for leave to appeal against conviction and/or sentence are not in doubt. Those bases were conveniently summarised by Gowans, J. in the case of Darby[1] and encapsulated in the reasons for judgment of the Full Court in the case of O'Keefe[2]. They have been followed in this Court subsequently in numerous applications, including R. v. Martin[3], R. v. Craker[4] and other cases. As Gowans, J. said in the case of Darby:

"The principles which govern an application for extension of time are as follows: (1) the prescription by the statute of the time limit for giving notice is intended to secure finality, and compliance is intended to be required in the ordinary case; (2) extension of the time is a matter for discretion of the Court, and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension; (3) rigid restrictions cannot be imposed on the exercise of discretion, but in general the Court will require special and substantial reasons for extending the time; (4) the longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be; (5) it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed; (6) a reasonably satisfactory account of the failure to comply with the statutory requirements needs to be forthcoming."

In the case of O'Keefe, the Court, having referred to those principles set forth by Gowans, J., went on (at p.5 of the report):

"An applicant who has been dilatory or has acted in such a way as to indicate that he does not intend to appeal has small, if any, claim to the exercise of the discretion of the Court in his favour. On the other hand, if the applicant has acted promptly, his case will be considered very differently. Where there has been a long delay the practice of the Court has not been to grant the extension sought unless it is clear that the decision is attended with such doubt as to make it probable that the appeal will succeed."

It is to be emphasised that the Court's decisions upon applications of this kind involve discretionary considerations, and the longer the time which elapses between the closure of the statutory time limit and the date of the application, the more exceptional will the circumstances have to be. Certainly the applicant must, in any case, put forward material to demonstrate satisfactory reasons for the failure to comply with the time and also to show, in the event that the time lapse is considerable (as it is in this case), that there are such merits in the proposed appeal that it will probably succeed.

In this case, I do not consider that the applicant has cleared either hurdle. In the first place, the applicant received advice about the merits of a conviction appeal within days of the jury's verdict, namely, on 9 September 2000, shortly after his solicitor had received advice in writing from counsel. The solicitor sent to the applicant a copy of counsel's advice together with a covering letter dated 15 September 2000. Counsel's advice was that "the best we could do would be a re-trial on possibly a handful of offences which would not alter the sentences on the others significantly". Five months later (on 15 February 2001) the solicitor again wrote to the applicant saying that he noted that the applicant "wished to investigate the possibility of an appeal being lodged against conviction" and that he (the solicitor) "doubted that such an application would be successful". The solicitor then said:

"If you wish to proceed with an application for leave to appeal against conviction out of time, please advise me immediately."

Nothing happened thereafter for two years, until February 2003, when a Notice of Application was made to extend the time for leave to appeal against conviction, at which time two proposed grounds were identified, the first being inconsistency of verdicts and the second being that the verdicts were unsafe and unsatisfactory. Then, some eight months later, on 25 October 2003, a further notice was filed with the Registry applying for leave to further amend the grounds by adding a third ground, which has been pursued with some vigour on this application, namely:

"that the trial miscarried as a result of the judge admitting into evidence the VATE tape and the transcripts thereof."

This ground was designed to take advantage, so it is said, of decisions made in this Court in more recent times in R. v. B.A.H.[5], R. v. Lewis[6] and R. v. Lyne[7].

The history to which I have referred indicates, to my mind, a determination on behalf of the applicant not to proceed with his appeal against conviction in 2000 and 2001, in circumstances where the best which could be achieved was a re-trial. Furthermore, the conduct at that time was akin to an election not to appeal against the convictions, a course which was, in effect, confirmed by the fact that at that time he filed an application to appeal against sentence, alone. That course of conduct provides no basis for an application of this type, particularly one which is brought so far out of time. Nor, in my view, do the other grounds relied upon to explain the delay - namely, lack of means and lack of funding from Victoria Legal Aid - suffice to provide an explanation of substance. Indeed they smack of "afterthought" and "recent invention".

Even if I thought that there was a sufficient explanation for the long delay in making this application, I cannot be satisfied that the proposed appeal has sufficient merits to warrant the grant of the application. As I have said, three proposed grounds are relied upon: unsafe verdicts; inconsistent verdicts; and unfair trial due to admission of VATE tape and transcript thereof. On the material before this Court there is an immediate obstacle to each of these grounds; one which has been produced by the applicant's own delay in making his application. It is accepted that, whilst there remains in existence a transcript of the evidence given at trial, the tapes recording counsel's addresses and the judge's charge have been destroyed, thus obliterating forever the chance of knowing how the Crown and the accused made their cases to the jury, and how the judge left those cases to the jury. Thus, an appellate court would be deprived of any instructions given by the judge to the jury as to the use which they could make of the VATE tape and the transcript thereof, and deprived of knowledge of the way in which the judge left the remaining counts on the presentment to the jury for consideration. So far as I am aware it was not suggested before or after verdict, or by counsel in his advices to the applicant, that the evidence was insufficient to sustain the verdicts which were returned or that the verdicts were inconsistent with one another. On the material before us, we do not know whether defence counsel at trial was happy for the VATE tape to go before the jury or not. For all we know, he may have been relying upon it to demonstrate that the complainant was a liar.

10 The proposed ground of appeal which, despite the fact that it was the last ground to be "added" to the proposed grounds, was most strongly relied upon by counsel in his quest to convince this Court that the proposed appeal had merits was ground 3 - alleging that procedural irregularity had vitiated the trial. This afterthought apparently has come about because of the decisions, to which I have previously referred, given in this Court in 2002 and this year in respect of the procedure to be followed in trials where the VATE tape procedure is used. Those decisions are confined to their own facts and make no earth-shattering changes to the law. Indeed, they refer to and apply various decisions in other States of Australia, New Zealand and the United Kingdom where the VATE tape procedure is used.

If the circumstances which existed at trial in this case suggested that the use made of the VATE tape and its transcript were prejudicial to the interests of the applicant, then it would seem - on what we know - that that was a factor not perceived by his trial counsel. The mere fact that there have been some decisions of the Court identifying prejudicial aspects of their use in the circumstances of those cases, does not - to my mind - carry with it the implication that this applicant, by parity of reasoning, has suffered prejudice in his trial. Even the fact that there have been changes or advances in the law following an applicant's conviction will not afford a proper ground for allowing a "stale" application for extension of time to appeal against that conviction (cf. R. v. Mitchell[8]; R. v. Hawkins[9]; R. v. Unger[10]). A fortiori must be the case where trial counsel - if it be the fact - has failed to perceive and challenge what is now said to be a procedural irregularity.

In the circumstances, I would dismiss the application for extension of time for leave to appeal against conviction. Likewise, I would dismiss the application for extension of time for leave to appeal against sentence. The only ground, namely, "manifest excess", has no merit, in my view, and already has been the subject of an application to a Judge of Appeal in February 2001 on an application pursuant to s.582 of the Crimes Act. Following that application, and in accordance with the Rules, the applicant was notified that he could "elect" to proceed with his appeal to the Court of Appeal. He chose not to do so and, in accordance with the Rules, he forfeited the opportunity to have the matter referred to the Court of Appeal. That history renders futile his current application to extend the time; and I would dismiss it.

The applications to extend the time for leave to appeal against conviction and sentence are dismissed.

At a glance

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Judgment (31 paragraphs)

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