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[2001] VSCA 192
respondent. Application for an extension of time to seek leave to appeal against conviction dismissed.
No linked legislation citations have been extracted yet.
Grech asked for more time to seek leave to appeal his heroin-trafficking conviction. He argued that the verdict was unsafe and that Dudkowski had new evidence supporting Ravarotto's claim that the heroin belonged to her. The Court rejected the first argument because the jury could reasonably reject Ravarotto's account. It rejected the second because Grech had met Dudkowski shortly before his arrest and they appeared to have been in contact, so the proposed evidence could have been investigated before trial with reasonable diligence. The extension was refused.
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2,045 words · generated 28/09/2026
The Victorian Court of Appeal considered Grech's application for an extension of time to seek leave to appeal against his conviction. The hearing and judgment were on 25 October 2001. The case was before Phillips, Callaway and Buchanan J.J.A.
Grech had been tried in the County Court on a count of trafficking in heroin and an alternative count of possession of heroin. On 14 May 1999, police apprehended him in a Bendigo motel room. The room had been allocated to Ravarotto, who had checked in about one and a half hours earlier. On the bench in front of Grech were electronic scales, an open bag containing a spoon and about 14 grams of powder containing heroin, quantities of heroin packaged in small plastic squares, further packaged quantities, and two mobile telephones ([5]).
At trial, Ravarotto gave evidence for Grech. She said the room, drugs, scales and packaging were hers. Her account was that she had arranged to meet Grech, prepared a small heroin quantity for a transaction with Harbridge, and left the room to meet him at McDonald's ([8]). The jury rejected that account and found Grech guilty of trafficking. The alternative possession count was not determined. Grech received a sentence of four years and six months' imprisonment, with a non-parole period of three years ([11]).
Grech later sought an extension of time to apply for leave to appeal. The grounds he wished to pursue included that the verdict was unsafe and unsatisfactory, and that Dudkowski could give fresh evidence supporting Ravarotto ([23], [37]). Dudkowski's affidavit described his contact with Ravarotto on the day of the arrest and a brief meeting with Grech shortly before the arrest. He concluded that the heroin in the motel room belonged to Ravarotto ([26]).
The Court refused the extension. Its central reasons were that the unsafe-verdict ground was not sustainable and that Dudkowski's evidence could have been investigated before trial through reasonable diligence ([43], [56], [69]). Phillips J.A. also considered the explanation for the delay, but the judges did not treat it as necessary to resolve the application once they concluded that the proposed appeal grounds could not succeed ([20], [59]).
The Court considered two proposed appeal grounds. First, it examined whether the verdict was unsafe and unsatisfactory. Callaway J.A. said that the ground was “quite unsustainable” because it was open to the jury to conclude that Grech was caught red handed. The jury had heard Ravarotto's account and disbelieved it; Grech himself did not give evidence ([43]). Buchanan J.A. agreed with Callaway J.A.'s reasoning on this ground ([66]).
The point was not that the Court conducted a new trial or independently decided who owned the heroin. Rather, the relevant question was whether the proposed appeal ground had substance in light of the evidence before the jury. The physical circumstances described in the judgment included Grech standing at the bench, with scales and multiple packaged quantities of heroin in the room ([5]). Ravarotto's explanation was before the jury, but the jury did not accept it ([8], [11]). On that record, the Court held that the verdict could not be challenged on the proposed basis.
Second, the Court considered whether Dudkowski's affidavit amounted to fresh evidence capable of supporting an appeal. Callaway J.A. stated a three-part formulation: the evidence had to be apparently credible or capable of belief; unavailable at trial despite due diligence; and sufficiently cogent that, if believed, there was a significant possibility that a reasonable jury informed of it would have acquitted ([46]). He noted controversy about the expression “significant possibility”, but said that formulation was sufficient for the application and was the one most favourable to Grech ([46]).
The Court did not rest its decision solely on an assessment of Dudkowski's credibility or the persuasive force of his account. Callaway J.A. expressed considerable doubt about credibility, referring to the circumstances in which the evidence emerged, Dudkowski's convictions during the relevant period, and the lack of support for his account in Ravarotto's statement or trial evidence ([49]). He also doubted whether the evidence had the required cogency, in part because much of it was hearsay ([53]). But he said he would pass over the cogency issue in light of his conclusion on due diligence ([53]).
Due diligence was decisive. Phillips J.A. reasoned that, if Dudkowski's account were true, Grech must have known about their meeting shortly before the arrest and therefore that Dudkowski might have relevant information. The judgment also referred to telephone-intercept records suggesting contact between Grech and Dudkowski during May and on the day of the arrest ([29]). Phillips J.A. concluded that failing to obtain at least a proof from Dudkowski was “scarcely due diligence” ([29]). Callaway J.A. likewise considered that the circumstances called for proofing the proposed witness ([56]). Buchanan J.A. said the relevant contact and meeting would have been revealed by proper instructions and a proof of evidence ([69]).
The judges therefore agreed on the result even though some aspects of the proposed evidence received separate comment. Callaway J.A. did not decide whether the applicant's reasons for delay were adequate, because neither appeal ground was sustainable ([59]). Phillips J.A. had expressed doubt about the delay explanation, but his stated basis for refusing the application was the lack of a reasonable prospect of success in the projected appeal ([20]).
The judgment does not set out a history of the law on fresh evidence, identify a change in doctrine, or compare earlier and later legal positions. It is therefore not possible, from this judgment alone, to describe a comprehensive “before and after” change in Australian law.
What the judgment does provide is the test Callaway J.A. applied to Grech's proposed fresh-evidence ground. The evidence had to satisfy the three considerations stated at [46]: apparent credibility or capacity to be believed; unavailability at trial despite due diligence; and cogency sufficient to create a significant possibility of acquittal if the evidence were believed and the jury acted reasonably. Callaway J.A. expressly characterised the significant-possibility formulation as the one most favourable to the applicant, while noting controversy over the expression ([46]).
The judgment's practical application of due diligence is specific to the facts described. The proposed witness was not a stranger whose existence was first discovered after trial. On his own account, he had met Grech shortly before the arrest. The judgment also referred to apparent telephone contact between them during the relevant period ([29], [69]). The Court considered that proper instructions and a proof from Dudkowski could have revealed the evidence in time for trial ([56], [69]).
The judgment does not establish from the provided text that every late-discovered witness will fail a fresh-evidence test, nor does it state that the three matters are the complete law for every appeal context. Its holding is tied to the proposed evidence and the circumstances that made the witness discoverable here.
At [46], Callaway J.A. identified three requirements for the proposed fresh-evidence ground. In plain English, evidence does not become a viable basis for an appeal simply because it is new to the appeal application. It must be capable of belief, genuinely unavailable at trial despite reasonable investigative effort, and sufficiently important that it could have made a material difference to the verdict.
At [29], Phillips J.A. said that not obtaining “at least a proof” from Dudkowski was “scarcely due diligence”. A proof is a recorded account of a witness's proposed evidence. The point was that Grech's asserted meeting with Dudkowski, and the apparent contact between them, made it reasonable to investigate whether Dudkowski had relevant information before trial.
At [43], Callaway J.A. said it was open to the jury to conclude that Grech was “caught red handed”. In context, this expressed the Court's view that the evidence did not make the jury's guilty verdict unsustainable. Ravarotto's alternative explanation had been given to the jury, but the jury rejected it.
At [59], Callaway J.A. said there was no need to express a view on the reasons assigned for delay because neither proposed appeal ground was sustainable. This clarifies that the Court's refusal did not depend on a definitive ruling about whether Grech had adequately explained the late application.
At [77], Phillips J.A. recorded the Court's formal order: the application was dismissed. The order concerned the extension of time, not a fresh determination of guilt or a new trial.
The judgment is most directly relevant to an application seeking to rely on proposed fresh evidence where the applicant had an existing connection with the potential witness before trial. Here, the witness said he met Grech shortly before the arrest, and the judgment referred to telephone contact between them during the relevant period ([29], [69]). Those circumstances led the Court to consider that the witness could have been identified and interviewed through proper instructions and a proof of evidence.
It is also relevant where a party seeks to support a trial witness's account with evidence that is partly hearsay or whose credibility is questioned. The Court noted that much of Dudkowski's evidence was hearsay and expressed doubts about its apparent credibility and cogency ([49], [53]). Those concerns are part of the judgment's analysis, although due diligence was the decisive deficiency.
The judgment also addresses a proposed appeal ground that a jury's verdict was unsafe because it rejected an exculpatory account. The Court's response depended on the trial record: the jury had heard the account, and the physical circumstances permitted it to reject that account and convict ([5], [8], [43]). The decision should therefore be read in light of the evidence and proposed grounds set out in this judgment, not as a general rule that a jury's rejection of a defence witness can never be challenged.
Finally, the case involved an extension-of-time application in which the Court considered whether there was a reasonable prospect of success in the projected appeal ([20]). It does not provide a full account of every factor that may govern such applications.
The supplied judgment contains no discussion of later cases and provides no material about how subsequent courts have treated R v Grech. No later judicial treatment can therefore be identified from the source provided.
The judgment does refer to controversy over the phrase “significant possibility”, but it does not identify the other authorities involved in that controversy in the supplied text ([46]). It would not be grounded in this judgment to name later cases, describe subsequent approval or criticism, or claim that the formulation has been adopted or altered elsewhere.
For research purposes, the decision's own stated formulation can be separated from any later doctrinal history. The former is available at [46]; the latter is not established by the supplied material.
The judgment does not resolve the precise scope of the “significant possibility” formulation. Callaway J.A. acknowledged controversy about the expression but said it was enough to apply the formulation most favourable to Grech ([46]). The source does not explain the competing formulations or decide between them.
The judgment also does not determine whether Dudkowski's evidence would have satisfied the credibility or cogency considerations if it had been unavailable despite due diligence. Callaway J.A. expressed doubts on both matters but passed over cogency because of his conclusion on diligence ([49], [53], [56]). Phillips J.A. likewise questioned whether the evidence established ownership of the heroin, and referred to hearsay and credibility concerns ([29]). The Court's reasoning does not require a final resolution of those issues.
Nor did the Court finally decide whether Grech had adequately explained the delay. Phillips J.A. expressed doubts about parts of the explanation, while Callaway J.A. expressly left the issue undecided because the proposed grounds were unsustainable ([17], [20], [59]). The dismissal therefore should not be described as a definitive ruling that the delay itself was unjustified.
The judgment does not include later citations or an account of subsequent judicial treatment. Any assessment of the decision's later status would require sources beyond the judgment supplied here.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
[ 2001] VSCA 192
Criminal law - Trafficking in heroin - Possession for sale - Applicant discovered in motel room with heroin displayed and equipment for selling - Applicant convicted despite evidence from the occupant of the room that the drug and the equipment were hers - Applicant's later reliance upon "fresh evidence" to support the occupant - Whether truly "fresh evidence" - Application to extend time for seeking leave to appeal against conviction refused.
they spoke, it is said, for about five minutes. Moreover, it appears probable from the record of telephone intercepts relating to the mobile telephones of both the applicant and Dudkowski that the two were in contact during May and, indeed, on the very day of the applicant's arrest. Failing to obtain at least a proof from Dudkowski was scarcely due diligence.
(a) The verdict of the jury was unsafe and unsatisfactory.
(b) There is fresh evidence available which supports the evidence of Anne-Marie Ravarotto. The fresh evidence is that of Chris Dudkowski. It was not available at the trial and could not have been made available with due diligence.
credible, having regard to the circumstances in which it came to light, the proposed witness's convictions for perjury and for trafficking during the relevant period and the fact that there is no support for it in Ravarotto's statement or the evidence she gave at the trial.
been taken from the applicant and a proof of evidence should have been taken from the witness.
R
Grech [2001] VSCA 192
Application for an extension of time to seek leave to appeal against conviction dismissed.