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R v Meyboom [2012] ACTCA 2 | Case summary | Zoe

ACTACTCA

R v Meyboom [2012] ACTCA 2

[2012] ACTCA 2

Court of Appeal (ACT)|2012-01-31

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Court of Appeal (ACT)

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2012-01-31

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Original judgment source is linked above.

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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

HUMAN RIGHTS

THE QUEEN v CRAIG PAUL MEYBOOM

[2012] ACTCA 2 (31 January 2012)

APPEAL AND NEW TRIAL – in general and right of appeal – leave to appeal out of time – principles on which leave should be granted – explanation for delay – whether miscarriage of justice – leave refused.

APPEAL AND NEW TRIAL – practice and procedure – when time for appeal begins to run in criminal matters – Court Procedures Rules 2006 (ACT) Div 5.4.7 – meaning of conviction.

APPEAL AND NEW TRIAL – practice and procedure – cross appeal – whether conviction appeal can be cross-appeal against sentence appeal – need for fresh appeal.

Supreme Court Act 1933 (ACT) s 37E, 37J

Court Procedures Act 2004 (ACT) s 7, sch 1 item 30

Crimes (Sentencing) Act 2005 (ACT) s 17

Criminal Appeal Act 1912 (NSW) s 10

Human Rights Act 2004 (ACT) s 22(4)

Evidence Act 1995 (Cth) ss 101, 101A, 104, pts 3.2, 3.3, 3.4, 3.5, 3.6

Court Procedures Rules 2006 (ACT) div 5.4.7, rr 6, 5405, 5409(4), 5413, 5500, 5505, 5506, 5508, 5509, 5510

Federal Court Rules 1979 (Cth) r 52.15

Freckleton, I, and Selby, H, Thompson Reuters, Expert Evidence, vol 4 (update 59)

Burrell v The Queen (2008) 238 CLR 218

R v Meyboom [2011] ACTSC 13

In the Marriage of Mullaly (1989) 13 Fam LR 499

Hinton v The Queen (2000) 115 A Crim R 74

Irving v Askew (1870) 5 QB 208

Clarke v Cameron (1880) 6 VLR (L) 449

Maxwell v The Queen (1996) 184 CLR 501

Griffiths v The Queen (1977) 137 CLR 293

Cobiac Liddy (1969) 119 CLR 257

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2004) 216 CLR 161

R v Celep [1998] 4 VR 811

Director of Public Prosecutions v Nguyen (2009) 23 VR 66

Parker v The Queen [2002] FCAFC 133

Grierson v The King (1938) 60 CLR 431

Jess v Scott (1986) 12 FCR 187

Saller Rese & Co v Ghosh [1971] 2 QB 597

R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087

Doyle v Gillespie (2010) 4 ACTLR 188

Time limits for the taking of various steps are common in litigation. This is in order to protect the important value of finality in litigation. See, for example, Burrell v The Queen (2008) 238 CLR 218 at 223 [15].
On the other hand, too rigid an application of what are, after all, mostly arbitrary time limits, can lead to unfairness or injustice. As a result, the statutes, setting many such time limits, also provide for a power in the court to dispense with them or to waive them on particular occasions.
Thus, as is often required, the courts are called upon to balance these competing considerations. The trial
In this case, as a result of separate attacks on two women, the Respondent, Craig Meyboom, was charged with one count of unlawfully assaulting a woman with intent to engage in sexual intercourse with her, two counts of engaging in sexual intercourse with that woman without her consent knowing or being reckless that she did not consent and one count of theft. On 4 February 2011, the court found him guilty of the latter three counts in a trial by judge alone. As a result of these convictions, no verdict was entered in respect of the other count: R v Meyboom [2011] ACTSC 13 at [168]–[169]. He was also charged with other offences against another woman but was acquitted of those other offences (at [167]).
He also pleaded guilty to some other unconnected charges.
On 25 March 2011, Mr Meyboom was sentenced for the offences of which he had been convicted at trial to imprisonment for five years. The total sentence, including that for the charges for which he pleaded guilty was imprisonment for seven years and six months with a non-parole period of five years.
He did not appeal against the convictions or the sentence. I shall deal with the circumstances of that later.
On 12 April 2011, the Crown appealed against the sentence imposed for both sets of charges on the ground of manifest inadequacy. Mr Meyboom, by Application in Proceedings dated 2 November 2011, seeks leave to cross-appeal out of time. Appeals - Statutory provisions
Section 37E of the Supreme Court Act 1933 (ACT) provides for appeals from orders of the Supreme Court (defined in the Dictionary to that Act to include a judgment, decree, direction or decision) to the Court of Appeal. There is no suggestion that a conviction does not fall within this definition. That is reinforced by provision in Div 5.4.7 of the Court Procedures Rules 2006 (ACT) which regulates “Appeals to Court of Appeal – Convictions and Sentences”. It is also confirmed by the decision of the Full Court of the Family Court of Australia in In the Marriage of Mullaly (1989) 13 Fam LR 499 at 502–3.
The conviction itself, however, much less the verdict of the jury, does not trigger any right to appeal. As the Full Court of the Federal Court of Australia said in Hinton v The Queen (2000) 115 A Crim R 74 at 78 [21]–[23]: It is only after the Supreme Court of the Australian Capital Territory has formally entered judgment upon that verdict, as for example, by recording a conviction, that there is a ‘judgment’ which may give rise to an appeal. It must be remembered that appeals are entirely creatures of statute. Close attention must be paid to the precise terms of the relevant statute creating the right to appeal. In Byrnes (1999) 199 CLR 1 Kirby J said (at 35): Appeal is not a creature of the common law. It is invariably the creation of statute. To assess, where challenged, the purported exercise by a party of a right to appeal, ... it is essential to scrutinise the suggested legislative foundation for such right and jurisdiction. If it cannot be demonstrated in the language, or in the implications to be derived from the language, of the relevant statue, the right and jurisdiction asserted do not exist. The common law cannot be invoked to fill total silences in the legislation. (Footnote omitted.) Likewise, in Duff the Full Court said (at 326): The statutory history of the jurisdiction in criminal appeals from the Supreme Court of the Australian Capital Territory is quite different from the statutory history of jurisdiction in criminal appeals in the Australian States or in England.
Item 30 in sch 1 of the Court Procedures Act 2004 (ACT), read in conjunction with s 7 of that Act, authorises rules to be made with respect to the practice and procedure of the criminal jurisdiction of the Supreme Court, including (under item 30(o)) appeals to the Court of Appeal.
As suggested by cases such as Irving v Askew (1870) 5 QB 208 at 211–12, the setting of time limits is a matter of practice and procedure and not inconsistent with the right of an appeal, though the matter is not completely free from doubt: see Clarke v Cameron (1880) 6 VLR (L) 449 (at 450).
Under r 5405(1)(b) of the Court Procedures Rules, a notice of appeal must be filed (unless leave has been given) “not later than 28 days after the day the order appealed from was made, or not later than any further time the Supreme Court allows on an application filed before the end of that period.”
Rule 5405(2), however, authorises the Court of Appeal to give leave to file a notice of appeal “at any time and for special reasons”. That notice, however, must, under r 5405(1)(a), be filed within any time limited by the Court of Appeal or, if no time is limited, then no later than 7 days after the day on which leave to appeal has been given.
Thus, a person convicted of an offence in the Supreme Court must file any appeal to the Court of Appeal within 28 days after conviction or such further time that the Supreme Court allows on an application filed prior to the end of that period, or must seek leave to appeal by the Court of Appeal which may grant that leave at any time “for special reasons”.
Subdivision 5.4.7.2 of the Court Procedures Rules, regulates applications to the Court of Appeal for leave to appeal “out of time” by a convicted person.
Rule 5500 provides that “out of time” for a conviction means more than 28 days after the day on which the conviction was recorded. Thus, an appeal can only be commenced “out of time” if leave is granted (r 5505).

In this case, verdicts of guilty were entered on 4 February 2011 and sentences imposed on 25 March 2011. When the sentences were imposed, there was no express reference to a conviction being imposed. This leaves the actual date of the conviction a little uncertain.
In Maxwell v The Queen (1996) 184 CLR 501, Dawson and McHugh JJ said (at 507) “[t]he question of what amounts to a conviction admits of no single, comprehensive answer”. See also per Gaudron and Gummow JJ at 529. Later, however, their Honours said in respect of a plea of guilty (at 509): A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the court. The determination of guilt forms part of the judgment of the court but it can occur otherwise than by the formal entry of the plea upon the record of the court. Of course, the formal entry of the plea upon the record may afford the clearest evidence of a determination of the court, but a determination may otherwise occur when the court acts so as to indicate unequivocally its acceptance of the plea.
In the same case, Toohey J considered authorities such as Griffiths v The Queen (1977) 137 CLR 293 at 301–2, 313, 336 and Cobiac v Liddy (1969) 119 CLR 257 at 271–3, as well as a number of State Full Court and Court of Appeal decisions, concluding (at 520): Australian authority indicates that at common law conviction encompasses a determination of guilt by the court and does not necessarily require judgment on the basis of that determination.
The uncertainty expressed by, in particular, Dawson and McHugh JJ in Maxwell, was confirmed by Hayne J, with whom Gleeson CJ and McHugh J agreed, in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161. His Honour commented (at 206 [137]) that “there may well be a question whether conviction depends upon verdict or plea, or upon the sentence of the court.”
As to this, it is clear from Griffiths, that a conviction occurs certainly when a sentencing judge hears evidence relevant to sentence and calls up the accused for sentence.
More recently, the Victorian Court of Appeal considered this position in a relevant situation. In R v Celep [1998] 4 VR 811, the prisoner was found guilty by a jury of one count on the indictment, acquitting him of more serious charges. The trial judge held that it would be inappropriate to record a conviction because of the serious effects it would have on the future economic and social well-being of the accused. He made what would be called a Griffiths bond, saying that if the prisoner complied with the undertakings to remain of good behaviour during the adjournment, no conviction would be recorded.
The prisoner sought to appeal the finding of the jury on the ground that it was unsafe and unsatisfactory. There was, however, no “conviction” against which to appeal.
Winneke P, with whom Brooking and Phillips JJA agreed, held that the prisoner could appeal. Consistent with a number of the Victorian and High Court authorities, his Honour said (at 813): [T]he jury’s verdict of ‘guilty’ ... was accepted by the court before the jury was finally discharged, and has been noted on the back of the presentment. That, in my view, is a sufficient ‘conviction’ to support an appeal under s 567 [of the Crimes Act 1958 (Vic), authorising the Court of Appeal to exercise its powers at the behest of a person ‘convicted on indictment’] notwithstanding that the conviction might never be recorded. ... [A] plea of guilty ... is normally to be regarded as a solemn form of admission to the essential ingredients of the charge. It is an admission which, however, needs something more, in the absence of some contrary statutory provision, to transform it into a conviction.
That approach was followed by the Victorian Court of Appeal in Director of Public Prosecutions v Nguyen (2009) 23 VR 66. There, the Court, comprising Maxwell P, Weinberg JA and Kyrou AJA, considered when a conviction was entered for the purposes of the time limit for making an exclusion order under the Confiscation Act 1997 (Vic), which was 60 days after conviction.
The Court unanimously held (at 76 [53]) that the meaning of “conviction” was “protean in nature ... [having] different meanings in different contexts.” Indeed, the Court then suggested (at 89 [120]) that the word not be used for the starting point of the relevant time limited because it “brings with it too much uncertainty”.
The Court did hold (at 84 [93]), however, that the relevant convictions occurred when, following arraignment and plea of guilty, the proceedings were adjourned for the hearing of the plea and bail was extended.
While each of these more recent authorities arises in a particular statutory context, they do provide some assistance.
It seems to me that the finding of guilt by a judge in a trial by judge alone must entail not only the verdict but also the acceptance of the verdict by the Court and thus the conviction. This is reinforced by the fact that on 4 February 2011, the Court adjourned the proceedings for the purpose of hearing submissions on sentence.
While seemingly illogical, at least for the purposes of the time limit for appeal I do not consider that finding, that the accused has been convicted at this time, is inconsistent with the possibility that a non-conviction order may later be made under s 17 of the Crimes (Sentencing) Act 2005 (ACT) as the imposed sentence. As in Celep, it would still allow an appeal from the conviction, that is the finding of guilt accepted by the Court, despite the sentence which does not include a conviction.
In this case, nothing much turns on the actual dates, for the application was made many months after both the findings of guilt and the sentence. Nevertheless, it seems to me that, for the purposes of the Court Procedures Rules, the conviction occurred on 4 February 2011. Application for leave to cross-appeal out of time
Thus, Mr Meyboom’s entitlement to appeal absent leave of the Court ended on 4 March 2011.
Mr Meyboom’s application, however, was for leave to cross appeal. Such an application is regulated by r 5413 of the Court Procedures Rules which provides: 1. If a respondent wants to appeal from all or part of the order appealed from, or wants an amendment of the order, the respondent need not start a substantive appeal. 2. However, the respondent must – (a) file a notice of cross-appeal in the court not later than 28 days after the day the notice of appeal is served on the respondent, or not later than any further time allowed by the Court of Appeal; and (b) serve a sealed copy of the notice of cross-appeal, not later than 7 days after the day the notice of cross-appeal is filed, but no later than 5 days before the day for settling the appeal papers, unless the Court of Appeal otherwise orders, on the following: (i) each appellant and any other respondent; (ii) any other party to the proceedings in which the order appealed from was made who would be directly affected by the order that the respondent seeks. 3. The notice of cross-appeal must state – (a) whether the appeal is from all or part of the order or seeks an amendment of the order; and (b) if the appeal is from part of the order or seeks an amendment of the order – the part the respondent cross-appeals from; and (c) either – (i) the order that the respondent seeks instead of the order cross-appealed; or (ii) the amendment of the order that the respondent seeks; and (d) whether the respondent will seek to put further evidence before the Court of Appeal; and (e) if further evidence is to be put before the Court of Appeal – briefly the nature of the evidence and what is sought to be proved; and (f) briefly, but specifically, the grounds relied on in support of the appeal, including, in particular, any grounds on which it is contended that there is an error of law in the order appealed from. 4. On the hearing of a cross-appeal, the respondent bringing the cross-appeal must not, without the Court of Appeal’s leave – (a) raise any question that is not stated in the notice of cross-appeal; or (b) rely on any ground in support of – (i) the order sought that is not stated in the notice of cross-appeal; or (ii) the amendment of the order sought that is not stated in the notice of cross-appeal.
The difficulty is that the order appealed from by the appellant, the Crown, is the sentence and not the conviction. Were Mr Meyboom to wish to appeal against his sentence, then it would clearly fall within r 5413(1), but he wishes to appeal from a different order, namely the conviction. I am not so sure that, in the circumstances, the appeal against conviction is a cross-appeal to an appeal against sentence.
The two matters are, of course, related. The sentence arises from the conviction and the facts on which the conviction is based are integral to the sentence imposed.
Nevertheless, the issues will be quite different. In addition, div 5.4.7 of the Court Procedures Rules makes it quite clear that the two orders, convictions and sentences, are different and separate orders.
Accordingly, in my view, Mr Meyboom is not entitled to cross-appeal against his conviction by an appeal against sentence by the Director of Public Prosecutions.
I am, however, prepared to treat his application as an application for leave to appeal against his conviction. That the Court would, almost certainly, ultimately make an order that the two appeals be heard together, an obviously convenient course, does not make the distinction irrelevant. The Application
The application therefore requires Mr Meyboom to be granted leave to appeal out of time from the convictions entered on 4 February 2011, sought by an Application in Proceedings dated 2 November 2011, just two days short of 9 months later.
Under r 5506(3) of the Court Procedures Rules, the affidavit in support of the application must show: (i) the nature of the case; and (ii) the questions involved; and (iii) the reasons why leave should be given; and annex a draft notice of appeal.
Mr Meyboom’s Application in Proceedings was supported by an affidavit of his solicitor. The affidavit adequately addressed the nature of the case. A copy of counsel’s submissions at trial were annexed, though it was necessary to cross-reference what was said there with some of the grounds of appeal in the draft notice, and they did not address all the grounds of appeal. The affidavit also did not set out any reasons why leave should be given, in particular by any explanation of delay, though that was remedied in oral evidence by the deponent, to which no objection was taken by the respondent’s counsel, the Director of Public Prosecutions.
The procedure required in rr 5508, 5509 and 5510 of the Court Procedures Rules was, however, not followed.
This procedure requires the applicant for an extension of time to serve the application on the Director of Public Prosecutions not later than 5 days after filing and the Director to file a response which states whether the director opposes, consents to or does not oppose the application within 7 days after service of the Application. The Registrar is then required to make a decision whether to grant the application and extend time or not. If the application is not granted, the applicant may, within 14 days apply to the Court of Appeal for the leave to appeal out of time.
This is a convenient process intended to deal expeditiously and efficiently with such applications so that, where the Director consents to the extension of time, the Registrar would ordinarily grant it and so avoid the necessity of an application being heard by a judge. This was considered an unnecessary step, especially where there is no objection, or there is consent, to the extension of time when, ordinarily, the Court would grant it.
In this case, however, no notice under r 5509 was filed, but at the hearing, the Director, who appeared, opposed the application, so the failure to comply with the Rules in this case is excusable and, so far as is necessary, I grant a dispensation under r 6 of the Court Procedures Rules.
Under s 37J(1)(b) of the Supreme Court Act, a single judge may exercise the jurisdiction of the Court of Appeal for an application such as this. The principles on which an extension may be granted
Neither party referred me to what is the leading authority in this jurisdiction on the grant of leave to appeal out of time, namely Parker v The Queen [2002] FCAFC 133 (Parker).
Although the Federal Court of Australia was the appellate court for this Court until the Court of Appeal was established in late 2001, for procedural reasons that it is not necessary to describe here the application for leave to appeal out of time in that case was made to the Federal Court and was heard by a Full Court on 13 May 2002.
While there are some minor differences, apart from the difference in the time limit (21 days for the Federal Court as opposed to 28 days here), the applicable provisions in the Federal Court Rules 1979 (Cth), namely, r 52.15, were relevantly identical.
The Court considered Hunter Valley Developments Pty ltd v Cohen (1984) 3 FCR 344, then the leading decision on extension of time within the civil jurisdiction of the Court. The Court set out (at [6]), with approval, the matters that were said to deserve consideration in an application to extend time. These were: (i) applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an ‘acceptable explanation for the delay’; it must be ‘fair and equitable in the circumstances’ to extend time; (ii) action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; (iii) any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension; (iv) however, the mere absence of prejudice is not enough to justify the grant of an extension; and (v) the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
The Court then commented (at [7]): There is no reason why these matters or guidelines, even though they were composed with respect to an application in a civil matter, should not also apply (and several authorities have decided that they do apply) in the criminal jurisdiction, save that where the liberty of the individual is at stake, the Court may be a little more lenient to an applicant in the exercise of its discretion.
It is true that Dixon J, in Grierson v The King (1938) 60 CLR 431 at 436, when summarising the effect of the Criminal Appeal Act 1912 (NSW), including s 10 which permits an extension of time within which to appeal, said that [i]t limits the time within which appeals and applications for leave to appeal may be brought, subject, however to a discretionary power in the court to extend the period except where the sentence is capital. ... No considerations controlling or affecting the conclusion to be deduced from these provisions are supplied by analogous civil proceedings.
It is, however, to be noted that his Honour was there dealing with a statute that only provided for appeals in criminal cases; here, both r 52.15 of the Federal Court Rules and r 5405 of the Court Procedure Rules are single provisions for both civil and criminal appeals.
The Federal Court also considered the decision of Jess v Scott (1986) 12 FCR 187, where the Full Court had previously considered both the meaning of “special reasons” in r 52.15 (as also used in r 5405(2)) and the history of the cases where delay had occurred through the fault of a lawyer for the convicted person.
In relation to the latter, the Court in Parker noted (at [8]–[9]) that somewhat “hard-line views of earlier times” had, as shown in the history traced by the Court in Jess v Scott, “softened materially” and cited the words of Lord Denning in Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601: So Dr Ghosh is out of time. His counsel admitted that it was his, counsel’s mistake, and asked us to extend the time. If Dr Ghosh had any merits which were worthy of consideration, we would certainly extend the time. We never like a litigant to suffer by the mistake of his lawyers.
Their Honours then cited the conclusion of the Court in Jess v Scott: [L]eave to appeal out of time is to be determined by the court’s view of the demands of justice in accordance with a broad judicial discretion, and not simply upon the application of any verbal formula ...
Such a formula, not to be accepted, would include, of course, that delay caused by the failure of the applicant’s solicitors would automatically justify an extension of time.
Indeed, Lord Denning himself rejected this contention when in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087, in reasons with which Browne and Geoffrey Lane LJJ agreed, he said (at 1091): One of the special circumstances here was the fact that the omission was the mistake of Miss Mehta’s solicitors. It was said that the mistake of her solicitors could not amount to ‘special circumstances’ within rule 11. I do not agree. In applying rule 11, I should have thought that the appellate authority might well adopt the practice which we adopt in this Court of Appeal here. We are often asked to extend the time of giving notice of appeal. We never let a party suffer because his solicitors make a mistake and are a day or two late in giving notice of appeal. We always treat it as a ground for extending the time: see Gatti v Shoosmith [1939] Ch 841. ... One other point. The tribunal said that they must come to a consideration on the preliminary point without regard to the substance or merits of the appellant’s appeal. That also is too strict a view. Here again I think the appellate authority might well follow the practice in this court. We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.
In Doyle v Gillespie (2010) 4 ACTLR 188, I set out (at 200–1; [53]–[60]) a summary of what the cases said about the responsibility of a litigant for the delay of their solicitor. I said (at 201; [60]) that “while the delay and conduct of the solicitor is relevant, it is not determinative and would not ordinarily be imputed vicariously to the litigant, without more being shown.”
Here, there is more, namely, the failure of Mr Meyboom to inquire as to the progress of his appeal, but I do not hold that strongly against him. It does, however, together with the length of the delay, require me to take into account other factors in finding the balance that the interests of justice require.
The importance of time limits, however, should not be ignored. In Parker, the Court noted (at [11]) that the Full Court in Jess v Scott had quoted with approval the advice of the Privy Council in Ratnam v Cumarosamy [1964] 3 All ER 933 at 935: The rules of Court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation.
Thus, as Reynolds, Hutley and Bowen JJA noted in Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at 30, the rules relating to time must never become “an instrument of tyranny” but they do have important purposes to allow parties to “know where they stand and regulate their affairs accordingly.”
The importance of flexibility is emphasised in another appeal from this Court, Zocchi v The Queen (2000) 116 A Crim R 245, where an extension of time was sought but refused.
The Court in Parker also referred to the unanimous decision of the High Court (Deane, Dawson and Toohey JJ) in Jeffers v R (1993) 112 ALR 85, where two matters were identified (at 86): · extended delay would require the applicant to show “exceptional” circumstances; and · inability to demonstrate any prospect of success in the appeal would not justify an extension of time, despite other circumstances.
Similarly, the Full Court in Williams v The Queen (2000) 119 A Crim R 490, granted leave to appeal eight months after the judgment where it had formed the view (at 509; [84]) that, were the applicant permitted to appeal, “his appeal should succeed”.
This consideration, namely, the prospects of success, is a very important element. Again, in Parker (at [17]), the Court cited what had been said by Nagle CJ at CL and Yeldhan J in R v Lawrence [1980] 1 NSWLR 122 at 165–6: In these circumstances, we think the appropriate course is to refuse the appellants the extension of time which they seek, having regard to the delays and the failure to comply with orders of this Court to which we have earlier referred. But, before doing so, we have satisfied ourselves that no injustice has been caused to the appellants, and that no miscarriage of justice has occurred.
The Court concluded in Parker (at [17], [19]): What the Court will look for, above all else, in an application to extend the time within which to file a notice of appeal against a conviction which has led to a term of imprisonment, is satisfaction that there has not been, and will not be, a miscarriage of justice if leave is refused. ... There will always be an onus on the applicant to explain the reasons for the delay – and the question of prejudice to the Crown cannot be overlooked. However, these and like matters cannot prevail if the Court is of the opinion that there is a reasonable probability that there might be a miscarriage of justice if leave is not granted.
Nevertheless, as Nagle CJ at CL and Yeldhan J noted in Lawrence (at 148), “[c]ertainly, where any considerable delay has occurred, exceptional circumstances will be required before the appeal is permitted to proceed.”
It is, however, important that there are various interests to consider and it is not appropriate to limit the consideration of such an application to a set formula. As the Court of Criminal Appeal of New South Wales said in R v Gregory [2002] NSWCCA 199 at [41], “[t]here are many factors relevant to those matters, including the powerful considerations supporting the finality of judicial decision.”
As Basten JA said in Arga v The Queen [2010] NSWCCA 190 at [4], “[t]he power of the Court to extend time is discretionary, but is unfettered.”
I noted above (at [52]) that the Court in Parker had suggested (at [7]) that when applying the considerations that the Court had identified it should “be a little more lenient to an applicant in the exercise of its discretion” in the case of criminal proceedings.
I note, too, that in Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) (2008) 2 ACTLR 44 at 54 [39], I said that “[i]n construing the provision for leave to appeal, then, an interpretation that is consistent with human rights as far as possible is to be preferred.”
In this case, s 22(4) of the Human Rights Act 2004 (ACT), is relevant. It provides that “[a]nyone convicted of a criminal offence has the right to have the conviction and sentence reviewed by a higher court in accordance with law.”
This does not entitle a convicted person to an unfettered right to appeal. In S v Rens (1996) 1 SA 1218, the Constitutional Court of South Africa upheld a provision requiring leave to be given to appeal. Madala J, with whom the other members of the Court agreed, said (at [25]): The doors of the appeal court are not closed to a person convicted in the Supreme Court and, in my view, the requirements of fairness are satisfied. It cannot be in the interests of justice and fairness to allow unmeritorious and vexatious issues of procedure, law or fact to be placed before three judges of the appellate tribunal sitting in open court to re-hear oral argument. The rolls would be clogged by hopeless cases, thus prejudicing the speedy resolution of those cases where there is sufficient substance to justify an appeal.
Other international human rights jurisprudence makes it clear that there is a wide margin of appreciation permitted in respect of the restrictions imposed on an appeal under domestic legislation, which must be proportional, for a legitimate aim and must not infringe the very essence of that right. See Krombach v France (European Court of Human Rights, Chamber, Application No 29731/96, 13 February 2001) at [96]. It does not seem to me that a reasonable time limit established in a statute with a right to seek leave to extend that time offends these principles. That appears to be consistent, too, with the approach of the New Zealand courts as expressed in see R v Slater (1996) 14 CRNZ 189 at 195. The facts surrounding the application for leave
As noted above (at [4]), Mr Meyboom was convicted of certain sexual offences on 4 February 2011.
The evidence discloses that he consulted his lawyers and instructed them not to appeal his conviction “unless the Crown appeals”. Of course, the Crown can only appeal against sentence.
It thus appears that Mr Meyboom was aware of his rights about appealing. It is not clear that he was aware that the time limit for his appeal against conviction may expire before his sentence was imposed. That sentence was imposed on 25 March 2011.
As also noted above (at [8]), the Crown did appeal on 12 April 2011 against the sentence imposed on Mr Meyboom.
For reasons that are not entirely clear to me, the Notice of Appeal was not served on Mr Meyboom until later, in fact, on the second last day required of such service under r 5409(4) of the Court Procedures Rules, even though it could conveniently be served on Legal Aid ACT under r 5409(2)(b).
In any event, once Mr Meyboom became aware of the commencement of the Crown appeal, he confirmed his instructions that an appeal against his conviction should be instituted. He then applied for a grant of legal aid for the purposes of the appeal.
I note that, in Western Australia, it has been held that it is the duty of solicitors acting for a convicted or sentenced person who wishes to appeal that they should file a notice of appeal pending the grant of legal aid so as to avoid the problem for that person should there be a delay in the grant of aid: Butler v The Queen (1989) 44 A Crim R 215 at 216; approved Gavin v The Queen (1992) 6 WAR 195 at 202–3. That is a consistent approach with what should be adopted here.
In any event, aid was ultimately granted on 11 May 2011. Unaccountably, no Notice of Appeal or, as it would then have had to be, application for an extension of time, was made. Instead, an application was made for an extension of the grant of aid to obtain counsel’s advice.
The evidence was not entirely clear as to the purpose of the advice. Presumably it was not to substantiate the grant of aid to appeal, as that had already been granted. It did not appear to be for the purposes of drawing the Notice of Appeal.
In any event, that advice was received on 27 May 2011. Thereafter, nothing at all appears to have been done about the appeal until the solicitor spoke to Mr Meyboom on 6 September 2011 and confirmed that he did, indeed, still wish to appeal.
In oral evidence before me, Mr Meyboom’s solicitor said, with disarming frankness, that she did not recollect that anything at all had been done about the appeal between May and September. Her explanation was that there was “a loss of momentum and distraction by other matters”. She was also on leave for much of July.
The Index to the appeal papers for the Crown’s appeal was, after a number of false starts, settled on 1 September 2011, and directions made requiring the appeal books to be filed by 13 October 2011 and the matter listed in the callover on that date.
On that date, at the callover, the Court was, so far as I could see, first notified of Mr Meyboom’s intention to appeal. I gave directions for any application for an extension of time to be filed and served, returnable on 2 November 2011. On that date, I gave leave for the Application in Proceedings to be filed in Court and adjourned it for the Directions List on 17 November 2011.
On that date it was listed for hearing on 7 December 2011.
The history does no credit to Mr Meyboom’s solicitor. Mr Meyboom, however, cannot be held entirely blameless, for he appears to have made no inquiries about the progress of the appeal from his solicitor. He was clearly aware of his rights. He had decided not to appeal, though his decision was conditional. That this condition had been met would have meant that he was interested and concerned in the progress of the appeal which was his answer to the Crown appeal, especially as he was then in custody. Consideration
The delay in this case is less than in many cases where an extension of time has been granted. It is, however, considerable, namely, more than eight months before the Application in Proceedings seeking an extension was filed.
The explanation is not compelling. The very substantial responsibility lies with Mr Meyboom’s solicitor, but he cannot entirely escape personal responsibility. It is true that, as a sentenced prisoner in custody, he has somewhat lesser capacity to manage his affairs, but he is not denied telephone access to his lawyers. Indeed, it might be suggested that his incarceration would make him even more interested in the progress of the appeal.
Nevertheless, the failure of his lawyer was much more significant. The authorities seem to suggest that this factor should not be held unreasonably against someone in Mr Meyboom’s position. Unless, however, there were reasonable grounds for the appeal and it can be shown to be likely to succeed, I would not be prepared to grant the extension of time and give leave to appeal. Grounds of the appeal
The draft Notice of Appeal sets out four grounds (though there appears to have been a fifth, numbered (iii), which seems to have been omitted). As they appear in the draft Notice, they are: (i) His Honour erred in failing to consider that the combined effect of the DNA evidence in relation to each of the incidents pointed to the reasonable possibility that a single person other than the Appellant had committed each of the attacks; (ii) His Honour erred in allowing the appellant to be cross-examined as to credit in relation to the source of funds for a transaction with Mr Toby Kelly; (iv) His Honour erred in allowing evidence to be led in reply to rebut the answers given in response to (ii) above; (v) His Honour erred in using the matters led in (ii) and (iii) above to find that lies told by the appellant as to the source of funds for a transaction with Mr Toby Kelly were supportive of an inference of guilty.
The material available to me for assessing these grounds is slim. The affidavit of Mr Meyboom’s solicitor annexes only: (a) the remarks on sentence which make very brief references to the facts; (b) submissions made in writing by Mr Meyboom’s counsel, though they addressed, it would appear, only the first and, perhaps, the last of the grounds of appeal; and (c) the draft Notice of Appeal.
This was hardly sufficient to be able to assess with any degree of appropriate satisfaction the prospects of success of the grounds of appeal.
At the hearing, counsel helpfully provided a copy of R v Meyboom [2011] ACTSC 13 (Meyboom), being Honour’s reasons for convicting Mr Meyboom which had, curiously, not been annexed to the affidavit. He also made some comments which added a little to my understanding of grounds numbered (ii) and (iv).
The prosecution, regrettably, did not address the grounds of the appeal at any length at all, preferring to rely on the argument that delay in the application and the prejudice to the complainant, who was at risk of having to give evidence again were the appeal to be successful, disentitled Mr Meyboom from a grant of leave.
The prosecution did make the valid point that this was not a case where the success of the appeal would be likely to result in an acquittal, but a re-trial. That did, it was submitted, change the content of the interests of justice. I am not at all certain that this is so, though there may be some merit in the point. In the event, I do not need to consider this point further. The factual background to the charges on the indictment
There were, as noted above (at [4]), two incidents. Mr Meyboom was acquitted of the charges laid as a result of the first incident. He was convicted of the offences arising out of the second incident and it is only in respect of these that this application is concerned.
Regrettably, it is not easy to glean from his Honour’s reasons for judgment what the facts are in much detail. This may have been because, as his Honour noted, “[t]he accused did not seek to dispute the account give by ... [the] complainant of the attack upon her”: Meyboom at [24].
The background was briefly summed up by his Honour (at [3]) as follows: The second event is alleged to have occurred on 5 April 2006. The complainant [AF] was also set upon by an assailant who apparently intended to sexually assault her. The assailant struck her causing her to fall to the ground. He indicated he wanted to ‘touch’ her, not to ‘rape’ her. He undressed her and inserted several fingers into her vagina. He then knelt between her legs and placed his tongue into her vagina. [AF] resisted the assailant. The assailant then broke off the attack, stealing [AF]’s mobile phone. It is alleged that the accused gave that phone on the next day to his then girlfriend.
AF did not identify her assailant. The Crown case was, as described by his Honour (at [23]), that the use of her mobile phone and analysis of DNA recovered from material at the crime scene linked Mr Meyboom with the attack.
It is not entirely clear, but it appears (at [123]) that police located AF’s mobile phone in the possession of Mr Meyboom’s partner, described by his Honour as “extremely incriminatory evidence.”
Mr Meyboom appears to have given evidence that he bought the phone from a Mr Toby Kelly when he met him on 5 April 2006 (the day of the assault) at Red Hill Shops. Mr Meyboom said that he paid Mr Kelly $1 400 for some drugs, a dress for his partner and the phone.
Mr Meyboom said that he gained the money for that purchase from a burglary and theft of a newsagency at Kaleen earlier that day.
The prosecution adduced evidence that the only burglaries reported at the newsagency at Kaleen at or about the relevant time were on 7 May, 4 July and 20 September 2006. The burglary on 7 May 2006, his Honour noted (at [134]), “bore a remarkable resemblance in terms of modus operandi to that described by [Mr Meyboom] for 5 April 2006.” As his Honour noted, “[t]here was, however, no such burglary reported for 5 April 2006.”
His Honour relied on this lie, after giving himself (at [151]) the warning referred to in R v Ray (2003) 57 NSWLR 616 at 632; [98], and adding that “[a]n accused, even if innocent, might tell a lie to distance himself or herself from the crime.”
Mr Kelly gave evidence. He agreed that he met Mr Meyboom at the Red Hill Shops on 5 April 2006 and that he was given money, he says only $250, to get drugs for him. He denied selling him a mobile phone. He also said that he met Mr Meyboom prior to 6.35 pm on 5 April 2006, which, as his Honour said (at [41]), was the earliest time when Mr Meyboom must have received the phone. His Honour, however, was not persuaded that he could rely on with any certainty Mr Kelly’s reference to time.
Counsel for Mr Meyboom criticised the prosecution for not testing the phone to ascertain whether any DNA could be obtained from it to link Mr Kelly to the phone as this would have lent some credence to Mr Meyboom’s claim.
As to the DNA evidence (at [71]), a tape lift from the collar and lapel of a jacket apparently worn by AF was analysed, showing a mixed DNA profile from “a minimum of two individuals ... separated into major and minor components”. The major component was identical with the DNA profile obtained from AF. Mr Meyboom was “not ... excluded as a contributor to the minor components”. The forensic evidence was that it was “approximately 1 900 million times more likely if the mixed DNA profile originated from [AF] and [Mr Meyboom] ... than if it originated from [AF] and an unknown and unrelated individual randomly selected from the ACT population.”
His Honour trenchantly criticised a number of aspects of the evidence about the DNA which it is not necessary to discuss in detail. As his Honour then said (at [117]–[118]), of this criticism: It may have little impact in the present case, as Dr Lim and Dr Walsh have both conceded that the DNA results obtained are of no assistance in identifying [Mr Meyboom] ... as a contributor though they support a conclusion that ... [he] is not excluded. Even on that issue, not only could it not be accepted as proved that [he] ... was the only minor contributor, there was evidence that at least two other males were also contributors to one or other sample.
His Honour concluded (at [157]): Nevertheless, Mr Lawton’s point is accepted. That is, the DNA evidence does not exclude ... [Mr Meyboom]. It does not, however, by itself, compel a conclusion that ... [he] was the assailant in either or both attacks.
His Honour did, however, refer to defence counsel’s criticisms of the DNA evidence and noted (at [164]), “that, to some extent, I accept those criticisms.” The first ground of appeal
The DNA evidence was complicated because the material produced an analysis showing a mixture of DNA in the material. The complexity of such analysis is well illustrated in Roberts H and Pollett A, ‘Statistical Evaluation in Forensic DNA Typing’ in Freckleton, I, and Selby, H, Expert Evidence, vol 4 (Thompson Reuters, update 59) at [80A.5100]–[80A.5220] (Freckleton and Selby).
Counsel’s submissions at trial helpfully included some of the transcript of the relevant evidence.
One challenge was to the assumption made by Dr Lim that there were two contributors to the mixture, AF and someone else. This, however, is not inconsistent with the guidelines set out in Freckleton and Selby at [80A.5180], though it may be insufficient.
Certainly, Dr Lim appears in her evidence to accept that there could have been more than two contributors to the mixture. That, however, does not seem to assist Mr Meyboom. If there were a third person, or indeed more people, contributing to the mixture that does not, of itself, exclude Mr Meyboom as a contributor.
The important point is that the location of the DNA, namely on the collar and lapel of AF’s jacket, does not mean that the DNA has had to be deposited by the person who assaulted AF as, for example, it would be much more likely to be the assailant if the mixture was found from a high vaginal swab.
In this case, the presence of DNA is not necessarily the DNA of the assailant. Rather, it is to show, if it does, that Mr Meyboom left his DNA on the jacket of AF, which places him in close contact with her and so strengthens the prosecution case if there is no other explanation for its presence.
As his Honour quite rightly says, the DNA evidence cannot place Mr Meyboom at the scene of the crime beyond reasonable doubt. That he cannot be excluded, however, is a strand in the circumstantial case which can be added to the other strands. This is perfectly permissible reasoning (see R v Hillier (2007) 228 CLR 618).
The other criticism was that there were alleles in the profile which, it was asserted, could not have come from the DNA of Mr Meyboom. Dr Lim’s answer was that in a mixture the complexity makes it difficult to assert that an allele not found in the DNA of Mr Meyboom excludes him from a mixture of DNA; unlike a non-mixture, without undertaking the relevant statistical analysis. That is, of course, reinforced by the whole question, noted above, of the uncertainty of the number of contributors to the mixture.
Thus, the real question is the statistical probability of the inclusion of Mr Meyboom’s DNA in the mixture, not that there may be another contributor whose DNA will, of course, be likely to be inconsistent with that of Mr Meyboom.
Again, the answer seems to be dependent upon the relevance of the place where the material containing the DNA was found. Here, it was not definitive of being DNA left by the assailant. Its only use in this case was to link Mr Meyboom with AF which, if accepted as showing that, could not otherwise be explained.
The first ground of appeal asserts that his Honour did not consider that another person committed both the assault on AF and also the assault for which Mr Meyboom was acquitted.
His Honour, in one of the passages of transcript quoted, makes the comparison with fingerprinting where, if one difference is identified in a fingerprint with that of the suspect, it cannot be the fingerprint of the suspect. The analogy, however, is not a good one, for it does not deal with the circumstances here faced, which is a mixture where there are a number of contributors.
The existence of an inconsistent allele in a mixture can be explained in a number of ways – an additional contributor (the inference that Mr Meyboom’s counsel seeks to draw), or an artefact of the DNA typing process such as “stutter”, “pull-up” (or “bleed-through”) or baseline noise: Freckleton and Selby at [80A.5120]. There are issues that are intended to be accounted for by the size and nature of the peaks, the statistical analysis and the expertise of the interpreter, or, of course, in the end by the absence of the suspected person’s DNA from the mixture.
Unlike a difference in a fingerprint, however, the existence of an inconsistent allele in a profile from mixed DNA can, ultimately, only be assessed by statistical analysis.
There was nothing in the evidence to which my attention was directed to suggest that the profile of a third (or other) contributor to the DNA analysis of the material found on AF’s jacket was also present in the same way within the material analysed from the clothes of the other complainant. Even were that so, it again would not show that this third contributor was the assailant, for it was entirely neutral whether it was explicable that the third contributor of DNA otherwise had contact with the two complainants in another capacity. There simply was no evidence about this making it no more than a conjecture whether the unidentified contributor could be the assailant.
Thus, the reasoning for which Mr Meyboom contends was not required of the trial judge. It was, in fact, no more than a recognition that there was no assumption that Mr Meyboom committed both assaults and that he enjoyed the presumption of innocence.
It does not seem to me that this ground of appeal enjoys any significant prospect of success. The second ground of appeal
Understandably, this ground was not addressed in counsel’s trial submissions and so, unfortunately, I did not have the benefit of detailed submissions at that point. The background to this ground of appeal is as follows.
As noted above (at [104]–[111]), the possession by Mr Meyboom of AF’s phone at a very close point in time to the assault was very relevant to linking him with the assault. In this sense, it seems to me that it was very much a fact in issue in the trial.
Mr Meyboom gave evidence and in his evidence gave an explanation as to how the phone came into his possession. That explanation was inconsistent with evidence given by a prosecution witness, Mr Toby Kelly.
Mr Meyboom was then cross-examined about the source of the funds that he used to purchase the drugs and what he said were other items from Mr Kelly. It appears that this is this cross-examination which is challenged in the ground of appeal, presumably because it is said not to be permitted by s 104 of the Evidence Act 1995 (Cth).
Section 104 prohibits cross-examination of an accused about a matter relevant to an assessment of an accused person’s credibility unless leave is given, except in a number of defined areas not presently relevant, and leave is not to be given in certain defined circumstances. The section, however, only applies to credibility evidence. Such evidence is defined in s 101A as follows: Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that: (a) is relevant only because it affects the assessment of the credibility of the witness or person; or (b) is relevant: (i) because it affects the assessment of the credibility of the witness or person; and (ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.
The question of the source of the funds which Mr Meyboom says he used to purchase the articles was relevant to whether he is to be believed, that is to his credibility, but it was also a central issue in the proceedings.
As Mr Meyboom’s counsel accepted, the recent possession by Mr Meyboom of AF’s phone was “a strong pillar”, if not the central pillar, in the prosecution case.
The evidence, however, was not just, perhaps not primarily, directed at Mr Meyboom’s credibility, but at whether the judge of the facts could find beyond reasonable doubt that Mr Meyboom stole the phone from AF and did not purchase it from Mr Kelly.
In Adam v The Queen (2001) 207 CLR 96, the plurality made it clear (at 107–9 [31]–38]) that evidence which is relevant to a fact in issue is not credibility evidence in the sense that it is not only relevant to the assessment of the credibility of an accused or a witness.
The only question, then, is whether the evidence was also adduced for other purposes, inadmissible under pts 3.2–3.6 of the Evidence Act. No such purpose was identified. I cannot see in any of those parts an exclusionary rule that would render the evidence about the source of the funds otherwise inadmissible.
In my view, the evidence was not credibility evidence within the meaning of the Evidence Act and s 104 did not prohibit the cross-examination that was directed towards it.
In my view, this ground of appeal does not enjoy any significant prospects of success. The fourth ground of appeal
Though numbered as the fourth ground, this is, I suppose, the third of the grounds of appeal as there appears to be no ground numbered (iii).
The essence of this ground is that the learned trial judge erred in permitting the prosecution to re-open its case as a result of the evidence Mr Meyboom gave as to the source of the funds he says he used to purchase, inter alia, the mobile phone stolen from AF at or shortly after the assault.
It is, of course, trite that the prosecution is required to call all its evidence before an accused calls any evidence and that the prosecution may not split its case: R v Chin (1985) 157 CLR 671.
In this case, Mr Meyboom, for the first time in evidence, gave an account of the source of the funds he says he had to purchase the mobile phone and other items from Mr Kelly. In a sense, it was evidence that was in the nature of an alibi – an explanation exonerating him from the otherwise strong inference that he had the phone because he had stolen it from AF, because he was her assailant.
Again, I was hampered because there was no material before me as to the precise circumstances under which the learned trial judge permitted the prosecution to re-open. In order for this Court to interfere with his Honour’s discretionary decision, it is necessary to identify an error of principle, or another of the grounds identified in House v The King (1936) 55 CLR 499 at 504–5. Indeed, the absence of detail is all the more troubling in an application for leave such as this for I am bound to accept that on appeal there is a strong presumption in favour of the correctness of an exercise of discretion: R v Alexandroaia (1995) 81 A Crim R 286 at 290.
One of the more frequent grounds on which the prosecution is permitted to re-open is where the accused raises issues not reasonably foreseeable by the prosecution. Thus, as noted in Shaw v The Queen (1952) 85 CLR 365 at 379–80, if an accused raises good character, the prosecution may be allowed to adduce evidence in reply. In Killick v The Queen (1981) 147 CLR 565, the plurality said (at 569) that “[i]n principle it seems clear enough that, speaking generally, if an alibi the details of which have not been disclosed is raised at the trial the Crown should be allowed to give evidence to rebut it.”
Although the evidence asserted by Mr Meyboom may not be an alibi in strict terms, it is closely analogous to it and it seems to me that the granting of leave by the learned trial judge was well within the principles established by such cases as those mentioned.
In the absence of any argument to show how the challenged decision is in error in the relevant way, I cannot see that this proposed ground of appeal is likely to enjoy any substantial prospects of success. The fifth ground of appeal
Again, this ground is numbered as the fifth ground, though it is the fourth articulated ground.
The written submissions of Mr Meyboom’s counsel made to the learned trial judge did address this issue. The submissions noted that there was a conflict in the evidence between Mr Kelly and Mr Meyboom as to the amount of drugs. This led to the evidence about the source of the funds and the evidence that there was no burglary at the time Mr Meyboom nominates.
The submissions continued: Two points arise from this matter. Firstly, inaccuracy on the part of [Mr Meyboom] ... as to the source of his funds for the purchase of drugs does not render the fact of the acquisition of the drugs open to rejection, especially given that the evidence from Mr Kelly (although uncertain as to time) confirms that a drug purchase was made on that day by [Mr Meyboom] ... from Mr Kelly. At no point was [Mr Meyboom] ... challenged as to whether a drug transaction had in fact taken place between himself and Mr Kelly (although implicitly the amount of money put to the purchase of drugs was challenged by the prosecution). Secondly, the prosecution seeks that the matter be dealt with as an Edwards lie. In relation to this point it is difficult to see how it could be found that [Mr Meyboom] ... had lied as opposed to made an error. A basis is not given to demonstrate that the only possible explanation for the ‘lie’ is guilt as opposed to a perceived need to bolster a just case. A basis is not given by which it is demonstrable that [Mr Meyboom] ... was lying as opposed to being mistaken as to the source of funds for the drug transaction. An accusation by the prosecution that it was some attempt by [Mr Meyboom] ... to cover up a sexual assault does not sit comfortably with the manner in which the evidence unfolded. Ultimately, if [Mr Meyboom] ... is wrong about either the source of the funds for the drug transaction, or even the amount of the drug transaction, such an error does not go to the question of whether the telephone was obtained from Mr Kelly.
This was, it seems from what the learned trial judge said, rather a simplification of the issue. This is because, in his evidence, Mr Meyboom linked the burglary specifically to the purchase of the phone and used it like an alibi.
His evidence was that, at the time of the attack on AF, namely about 6.35 pm, Mr Meyboom was outside the newsagency at Kaleen. He said that he observed the business for about 40 minutes before waiting for a person in the premises to leave then committed the burglary “a little after 7”.
The evidence, which was clearly accepted by the learned trial judge, as his Honour was entitled to do, was that there was no burglary of the newsagency at Kaleen on 5 April 2006.
Thus, not only did this deprive Mr Meyboom of his alibi but it also cast serious doubt on his version of the meeting with Mr Kelly.
As his Honour said (at [144]–[146]): The case of [AF] is, in that respect, different. Mr Lawton submitted that the gap between the theft of the phone and its possession by the accused was within three hours. The accused admitted giving that phone to Ms Brenton who used it first on 6 April 2006 at 1.52 pm. Clearly, that circumstance, absent any rational alternative hypothesis, is strongly consistent with the accused having stolen the phone from [AF] and, hence, being her assailant.
His Honour then proceeded to evaluate the evidence. His Honour said (at [147]–[151]): The accused sought to implicate Mr Toby Kelly as the supplier to him of the phone. Mr Kelly’s evidence, though it did him no credit, was that he did that day supply drugs to the accused, not for $1 400 as the accused claimed, but for $250. He denied supplying a phone to the accused, let alone [AF]’s phone. The supply took place, he said, early afternoon around lunch time. Mr Lawton submits that the accused’s story about obtaining funds to buy $1 400 worth of ‘ice’ from a burglary at Kaleen newsagency, albeit a burglary he may well have committed on 7 May 2006, may be found to be a lie. That lie, Mr Lawton submits, is relevant not only to discredit the accused as a witness but may, in the circumstances, be supportive of an inference of guilt. I adopt, as Mr Lawton concedes that I must, the warning contained in R v Ray (2003) 57 NSWLR 616 [98]. An accused, even if innocent, might tell a lie to distance himself or herself from the crime.
His Honour accepted that the case was circumstantial. He directed himself by reference to what the High Court had said about such cases in Hillier v The Queen, where Gummow, Hayne and Crennan JJ, with whom Gleeson CJ and Callinan J agreed, said (at 637 [46], 638 [48]): It is of critical important to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. ... But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.
His Honour summarised (at [160]–[162]), the submissions of Mr Meyboom’s counsel on this point and, in my respectful opinion, accurately. His Honour then evaluated that evidence (at [168]–[169]), as follows: In relation to counts four to seven [namely, the assaults on AF], the only explanation other than the guilt of [Mr Meyboom] ... is the suggestion that he may have come by [AF]’s mobile phone through Mr Kelly. That is, in itself, unlikely given the circumstances admitted by each of them, though little reliance can be placed on the evidence of either of them. The fact, however, that [Mr Meyboom] ... constructed an elaborate lie, transposing the May 2006 burglary of Kaleen Newsagency to 5 April 2006 dispels any lingering doubt that there might have been that he was the person who attacked [AF] on 5 April 2006 at Dickson. I accept that the DNA evidence does not support any doubt as to that conclusion though, on the other hand, it does not compel a conclusion as to guilt. Thus, despite [Mr Meyboom’s] ... denials, which I reject as untruthful, both because of his general lack of credit and specific lies, I find him guilty of the sexual assault upon [AF] and the consequential theft of her mobile phone.
It does not seem to me that his Honour was there using the lies he found that Mr Meyboom had given were, as suggested by Mr Meyboom’s counsel in oral argument, lies which could be used as an implied admission, corroborative of the prosecution case. This was, of course, held permissible by the High Court in Edwards v The Queen (1993) 178 CLR 193, but only where the Court is satisfied that the accused perceives that the truth is inconsistent with his innocence (at 209).
That must be the situation here, however, for if, as was unchallenged, Mr Meyboom gave the mobile phone to his partner shortly after the assault on AF and had not obtained it from the only source he suggested, namely from Mr Kelly, the truth must have been that he had it in his possession shortly after the assault. That truth was inconsistent with his innocence in the circumstances of the trial. Thus, a conclusion that Mr Meyboom told the lie (as it was so found by his Honour, namely, that the phone was sold to him by Mr Kelly) because he perceived that inconsistency was reasonable and, indeed, almost inevitable.
While the direction his Honour gave himself was by incorporation of what was said in the NSW decision of R v Ray (in which the directions to be given in such circumstances were also identified by what had been said in other cases, such as Edwards v The Queen), and a direct articulation of the direction may have been desirable, it may well not have been necessary at all, for his Honour did not directly rely on the lies as a consciousness of guilt.
I do not consider that his Honour erred in his approach to the evidence or the description of the reasoning process adopted in respect of it.
It may be that I have misapprehended the thrust of this ground. It may simply be that because, it is claimed in the second and fourth grounds, by the evidence adduced through the cross-examination of Mr Meyboom and the re-opening by the prosecution of its case, inadmissible evidence was adduced and it was an error to rely on it because it was inadmissible.
I doubt whether it is necessary to include such a ground. The adducing and admission of inadmissible evidence is an error in itself whether or not there is express reference to it, for example, in the reasons of the learned trial judge in a trial by judge alone. After all, the judge of the facts is required, whether or not express reference is made to it, to have regard to all the evidence adduced.
The second and fourth grounds have, however, not been shown to identify any error in his Honour’s decision, as noted above (at [144] and [152]).
Accordingly, whichever way this ground is to be understood, it does not appear to me that the ground enjoys any prospects of success. Conclusion
A number of additional matters were put to me as to why Mr Meyboom should be permitted to appeal. These were: (a) that it would be an “odious outcome” if Mr Meyboom were denied a right of appeal through no fault of his own. While that is an understandable submission and is a strong factor in favour of the grant of an extension of time, the other interests, including the finality of litigation and prejudice to others, such as the complainant, need to be balanced against it. Part of the way in which that is to be balanced is in assessing the prospects of success in the appeal. See Brown v Western Australia (2011) 207 A Crim R 533 at [10]. In any event, I do not consider him entirely (though only marginally) blameless; (b) the failure to grant an extension would leave Legal Aid ACT, which acted for Mr Meyboom, with the moral burden of causing the denial of his opportunity to appeal. This, it was submitted, would be especially burdensome since that organisation is established to protect the rights and interests of people such as Mr Meyboom. Again, this is an argument that has some validity, though it is not for the courts to provide some protection to that organisation in preference to the private solicitors who also act for such clients whether pro-bono or often on rates of remuneration well below commercial rates. Further, it is difficult to balance such interests against the other interests such as those of complainants; (c) since there is already an appeal against sentence, the increase of preparation costs and hearing time will not be great. That consideration may, to a small degree, assist an applicant for an extension of time. In some cases, it would reduce substantially the prejudice that the other party may suffer. In this case, however, the additional effort and time do not seem to me to be minimal. For example, the whole of the transcript of the hearing will have to be included in the appeal book which would be unlikely to be necessary for the Crown appeal against sentence. In addition, the arguments on the conviction appeal will be quite distinct and disparate from those on the Crown appeal. I do not consider that, in this case, this argument supports the grant of an extension of time much, if at all; (d) the indication that an appeal was to be sought was given at least to the prosecution some time before the Application in Proceedings was actually filed. It seems that such an indication was given at least on 13 October 2011. There is no material before me to suggest an earlier date. That is, of course, somewhat less than six and a half months after the decision on sentence had been delivered and, I suppose, five and a half months after the appeal period (for an appeal against sentence) had expired. While that is less than the actual period of delay, namely, between the expiry of the actual appeal period on 4 March 2011 and the filing of the Application in Proceedings on 2 November 2011, two days short of eight months, the difference does not impress me as being particularly relevant; (e) the rights of Mr Meyboom under the Human Rights Act. I have dealt with this above.
I accept that in this case the delay is not to be laid at the foot of Mr Meyboom such as to disentitle him to an extension of time for his appeal. He was, however, partly accountable for that delay in his failure to take steps to prosecute the appeal, even by inquiries of its progress to his solicitor who, one would have expected, was informing him of the progress of the Crown appeal, such as the preparation and content of the appeal books.
I do consider that there is some prejudice to the complainant in the granting of the extension of time but not such as to outweigh a miscarriage of justice were there to have been one here.
I accept that the arguments set out at [172](a) are supportive of the grant of an extension were Mr Meyboom to have been likely to have been denied a reasonable prospect of a new trial because of a failure of the process of the trial at which he was convicted. Even were the prospects arguable rather than good, this factor would have weighed more heavily in favour of the grant of the extension of time.
None of the other arguments at [172] above seem to me strongly in favour of the grant of the extension of time, but may have supported it had the prospects of success on the appeal been arguable but too thin by themselves to support the grant of an extension of time.
Having, as carefully as I can and as generously in favour of Mr Meyboom as I can, considered the prospects of success on the appeal, I am not persuaded that there are sufficient prospects of success, even were I to add the support of the other factors, to find that it is in the interests of justice to grant the extension of time within which to appeal.
In these circumstances, I must dismiss the application. I certify that the preceding one hundred and seventy eight (178) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.