1 Mr Rees, the applicant, seeks an extension of time within which to file and serve a notice of appeal from the orders of Cavanough J made on 11 March 2011 by which the applicant's application for judicial review was dismissed. The application is opposed by David Skeet, Senior Constable of Victoria Police, the second respondent. The County Court of Victoria, the first respondent, took no active part in the application, in accordance with the principles in R v Australian Broadcasting Tribunal; ex parte Hardiman.[1]

2 The history of the matter is as follows. Following a raid on the applicant's house on 23 April 2007, the applicant was charged and later convicted and sentenced in the Magistrates' Court for having in his possession articles, namely spray paint cans, bolt cutters, disposable gloves and a respirator, with the purpose of using them, without lawful excuse, to damage property belonging to another person, contrary to s 199 of the Crimes Act 1958. The applicant appealed his conviction and sentence to the County Court. On 17 December 2008, the applicant appeared in a de novo hearing before the County Court where he was represented by counsel. He gave evidence, the main thrust of which was that he possessed the articles in question for legitimate artistic purposes, including the execution of commissioned spray paintings. He also contended that other people lived at the premises which were raided and he denied knowledge of torn-up sketches of graffiti tags which were found in the kitchen and an outside bin. The County Court judge considered the applicant's evidence 'most unconvincing' and did not accept it.[2] The applicant was convicted and sentenced to three months' imprisonment to be served by way of an intensive corrections order. There was no avenue of appeal from that conviction.

3 The applicant then commenced an application in the Supreme Court for judicial review, pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2005. The judicial review application sought an order in the nature of certiorari to quash the orders made in the County Court on the grounds that (1) the finding of the requisite intention to destroy or damage property was made in the absence of probative evidence and was against the evidence, and therefore affected by jurisdictional error, and (2) the finding relating to intention was so unreasonable that no reasonable decision maker could make it.

4 On 11 March 2011, Cavanough J dismissed the application for judicial review. This was despite the assumption he made in favour of the applicant, without deciding the point of principle, that it would be jurisdictional error for the County Court, in an appeal from the Magistrates' Court in a criminal matter, to make a finding of guilt that was unsupported by any probative evidence or that was illogical or irrational,[3] if such an error were to be made. However, he found that in the circumstances of this case there had been no such error.[4]

5 Moreover, his Honour dismissed the application for judicial review despite recognising that at trial the informant had carried the burden of proving that the applicant was in possession of the items in question for the alleged unlawful purpose, that the relevant standard of proof had been proof beyond reasonable doubt and despite accepting the applicant's submission that, as the evidence at trial against the applicant was circumstantial, it was the duty of the County Court judge to acquit the applicant if there was any reasonable hypothesis consistent with his innocence.

6 Pursuant to r 64.03 of the Supreme Court (General Civil Procedure) Rules, the applicant had 14 days from Cavanough J's decision on 11 March 2011 within which to file his appeal (that is, by 25 March 2011). The applicant filed his summons on 5 April 2011, 11 days out of time. Pursuant to r 64.20(1) of the Supreme Court (General Civil Procedure) Rules, this Court may extend or abridge any time fixed by or under O 64.

7 In Phillips v Australian Finance and Leasing Limited, Dodds-Streeton JA and Byrne AJA stated that:[5]

The factors relevant to an extension of time for leave to appeal are not controversial. They include:

the reasons for and extent of the delay;

the existence of an arguable case or realistic prospects of success in the appeal (so that an extension is not futile), or, as sometimes alternatively expressed, whether doubt attends the decision below; and

the prejudice likely to be suffered by the respondent if an extension is granted and whether such prejudice is irremediable.

The considerations relevant to an application to extend time overlap to some extent with those relevant to an application for leave to appeal. They, too, include a requirement that the decision below be attended by a sufficient degree of doubt; and that substantial injustice will result if the decision below is permitted to stand.

8 In this case, the extension sought by the applicant is relatively short, being 11 days. However, the applicant has not furnished the Court with a reasonably satisfactory account for his failure to comply with that time limit. As the second respondent argued in his written submissions:

The applicant has not shown good reason for his failure to lodge a Notice of Application for leave to appeal within the requisite time frame.

The Applicant is required to put forward material that demonstrates a reasonably satisfactory account of his failure to comply with the statutory requirements in order to persuade the Court to exercise its discretion in favour of an extension.

9 The applicant mentioned today from the bar table that he had spent time unsuccessfully seeking legal assistance for this application and that he had suffered some computer malfunctions. However, this was not sworn evidence and it was described in terms that were too vague, in my opinion, to be accepted as sufficient. In my opinion, there is no adequate explanation for the delay.

10 Furthermore, the applicant has not particularised any arguable error in the decision of Cavanough J. The material on which the applicant has relied in this application refers to grounds which were not advanced before Cavanough J (including a submission based on the Charter of Human Rights and Responsibilities) and some of the material refers to grounds which were abandoned at the hearing before Cavanough J.

11 Cavanough J in his reasons carefully sets out the evidence to which the trial judge in the County Court was entitled to have regard in establishing the relevant criminal intent. The applicant's possession of 250-300 spray paint cans and bolt cutters found in the garage of the premises occupied by the applicant, the six graffiti-related magazines and other literature on trains found in the applicant's bedroom, and the numerous torn up sketches of graffiti tags found in the kitchen and an outside rubbish bin clearly constitute evidence from which an inference as to the applicant's intention can be drawn. The weight the County Court judge chose to give to that evidence was, as Cavanough J stated, a matter for him and he was entitled to arrive at the view that the evidence was such that any hypothesis consistent with innocence was not a reasonable hypothesis. His Honour noted that the applicant's evidence as a whole, with the exception of one or two uncontroversial matters, was 'simply not accepted' by the trial judge.[6] He considered that the adverse findings as to the applicant's credit were open for the County Court judge to make. In my opinion, Cavanough J's conclusions on that issue are not affected by sufficient doubt to warrant an extension of time in which to file and serve a notice of appeal.

12 For these reasons, I would refuse the application for an extension of time.

[1] [1980] HCA 13; (1980) 144 CLR 13, 35.

[2] Rees v County Court [2011] VSC 67, [32].

[3] Ibid [20]. See Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611.

[4] Rees v County Court [2011] VSC 67, [36].

[5] [2009] VSCA 256, [4]-[5].

[6] Rees v County Court [2011] VSC 67, [38].