Samios v DPP [2022] VSCA 108

1 In circumstances that we will later describe,[1] on 20 July 2018 the applicant pleaded guilty in the Magistrates' Court at Geelong to a number of offences, including trafficking a drug of dependence, heroin. As a result, a magistrate convicted the applicant and sentenced him to an aggregate sentence of six months' imprisonment, together with a Community Correction Order ('CCO') of 18 months' duration.

2 Pursuant to s 263(2) of the Criminal Procedure Act 2009 ('CPA'), the applicant subsequently sought the leave of the County Court to appeal out of time against the conviction and sentence imposed by the magistrate. Judge Hannan refused that application on 29 August 2019.

3 On 25 October 2019, the applicant filed an originating motion seeking judicial review of Judge Hannan's decision. Following a hearing on 20 October 2020, Taylor J made orders on 29 July 2021 dismissing the application for judicial review and awarding costs to the Director of Public Prosecutions ('the Director' or 'the DPP').[2]

4 By a notice dated 26 August 2021, the applicant seeks leave to appeal to this Court from the decision of Taylor J.[3]

5 Leave to appeal may only be granted if the Court is satisfied that the appeal has a real prospect of success,[4] so much requiring an applicant to demonstrate that the prospects of the putative appeal are not fanciful.[5] As we will explain, however, we consider the proposed appeal to have no real prospects of success. Leave to appeal must therefore be refused. Our reasons for those conclusions follow.

6 To understand the issues arising in this application, it is necessary to provide some background.

7 On 13 June 2018, the applicant was at his home[6] - situated at 7 Bostock Avenue, Manifold Heights ('the property') - with several others when police executed search warrants and, among other things, seized 150 grams of heroin and a shortened firearm. Police arrested the applicant. He was charged with some 22 offences - including trafficking heroin pursuant to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 ('Drugs Act') - and remanded in custody. The charge of trafficking heroin was based on possession for sale,[7] the prosecution relying on the applicant's 'deemed' possession.[8]

8 We pause at this early stage to note that, for the purposes of the Drugs Act, an automatic forfeiture quantity of heroin is 30 grams;[9] and that, for the purposes of the Confiscation Act 1997, trafficking in not less than an automatic forfeiture quantity of heroin is a Schedule 2 offence.[10]

9 Resuming the narrative, some five weeks after his arrest, on 20 July 2018, the applicant appeared at the Magistrates' Court at Geelong for the purposes of a bail application. The solicitor then acting for him sought a sentencing indication from the presiding magistrate in relation to 18 charges. Having received the requested indication, the applicant pleaded guilty, including to the charge of trafficking heroin. As we have mentioned, the magistrate then convicted the applicant and sentenced him to an aggregate sentence of six months' imprisonment, together with a CCO of 18 months' duration.

10 By virtue of s 255 of the CPA, any appeal against those convictions and that sentence should have been initiated within 28 days; that is, by 17 August 2018. He did not file a notice of appeal, however, until 12 July 2019, almost a year after he was convicted and sentenced. And as we have said, Judge Hannan refused leave to appeal on 29 August 2019.

11 Significantly, on 23 October 2018 the DPP had obtained a restraining order over the property pursuant to s 16(2) of the Confiscation Act 1997. The trigger for that order was the applicant's conviction on 20 July 2018 for the Schedule 2 offence of trafficking heroin. Two days later, on 25 October 2018, the applicant, then in custody at Margoneet Prison, was served with a copy of the order.

12 Subsequently, on 23 December 2018 - that is, 60 days after the making of the restraining order - the property was forfeited automatically pursuant to s 35(1) of the Confiscation Act 1997.[11] Thereafter, on 2 April 2019, following an unsuccessful attempt by the applicant to overturn the forfeiture, a judge of the County Court made a declaration of the kind contemplated by s 36(1)(a), that the property had 'been forfeited to the Attorney General, being the Minister responsible for the administration of the Confiscation Act 1997, by operation of section 35(1) of the [Act]'.

13 On 12 July 2019, a little over two months after the declaration was made with respect to forfeiture, the applicant filed a Notice of Appeal in the County Court, seeking under s 254 of the CPA to appeal against his convictions in the Magistrates' Court almost a year earlier. Being out of time by some months - as we have mentioned, in the ordinary course it should have been filed by 17 August 2018 - the notice was by reason of s 263(1) 'deemed to be an application for leave to appeal on the grounds stated in the notice'. Importantly, s 263(2) relevantly provides:

(2) The County Court ... may grant leave to appeal under subsection (1) and the appellant may proceed with the appeal if -

(a) the court considers that the failure to file a notice of appeal within the period referred to in section 255(1) ... was due to exceptional circumstances; and

(b) the court is satisfied that the respondent's case would not be materially prejudiced because of the delay.

14 We pause once more to note that, as a matter of construction, the County Court's discretion under s 263(2) to grant leave to appeal against conviction out of time is enlivened only if both limbs of the subsection are satisfied: first, that the court considers that the failure to file a notice of appeal within the prescribed time was due to exceptional circumstances; and, secondly, the court is satisfied that the respondent's case would not be materially prejudiced because of the delay in filing the notice within time. Each limb is a jurisdictional fact that conditions the existence of the discretion to grant leave to appeal and is to be determined subjectively.[12]

15 As we have indicated, on 29 August 2019, the application for leave to appeal out of time against the convictions entered on 20 July 2018 came before Judge Hannan.

16 In the course of that application, Judge Hannan had regard to three affidavits relied upon by the applicant. Having considered the affidavit material, Judge Hannan observed: first, that the affidavits contained an assertion of professional misconduct against the applicant's previous solicitor; secondly, the relevance of that allegation of misconduct appeared to be in the assertion that the applicant did not receive proper advice as to the automatic forfeiture arising from a conviction for the Schedule 2 offence to which he pleaded guilty; and, thirdly, the issue of the applicant's safety as set out in the material was based solely on assertions made by him. Judge Hannan then observed that the relevance of those matters was to the forfeiture order and not the application before her for leave to appeal out of time.

17 Responding to those observations, the applicant's counsel submitted that the ultimate relevance of the material was the forfeiture of the applicant's property, but the 'significant relevance' was said to be the miscarriage of justice. Counsel submitted that the applicant pleaded guilty on the basis that he would serve six months' imprisonment. When he received the restraining order the applicant approached his solicitor who said that she would look after it and make the necessary application. The thrust of counsel's submissions may be gleaned from the following discussion:

[APPLICANT'S COUNSEL]: Your Honour, he pleaded - he pleaded guilty on the basis that he would do six months, be released in December and that would be the end of the matter - then do a [CCO]. He - - -

HER HONOUR: And that was the sentence.

[APPLICANT'S COUNSEL]: That was the sentence. He was not told that by pleading guilty to a schedule 2 offence his time [scil, home] would be forfeited or subject to forfeiture. Had he been told that he wouldn't have pleaded guilty.

Now, he then approaches his solicitor when he gets the forfeiture application, or the restraining order, and his solicitor says that she would look after the restraining order and make the necessary application. That's what he says.

HER HONOUR: Again, this is a professional misconduct situation, if that's what is asserted, that - - -

[APPLICANT'S COUNSEL]: Well - - -

HER HONOUR: Yes. I mean, basically, this comes into the category, and there are various authorities in relation to the relevance of not liking the consequences of the plea. Often it's in the circumstances of somebody finding that they can't travel, they can't get a visa, they can't get a certain kind of job, but that - that isn't necessarily exceptional circumstances. Yes, go ahead.

18 Significantly, during later discussion there was the following exchange:

HER HONOUR: ... I guess we were trying to get to a point of understanding what the grounds were. So as I understand - and you say that [the conviction] wasn't appealed out of time because, firstly, [the applicant] was in custody, secondly, he had been not given proper legal advice in relation to a consequence of conviction, and really, that ... largely, it's the confiscation matter.

[APPLICANT'S COUNSEL]: Well, that ... that is the end product. ... I agree with that. But the substantial miscarriage of justice, if it has occurred, and if these matters against the solicitor are founded, and found to be true, then [the applicant] should not live his life with a conviction that he shouldn't have accepted.

Now, it's one thing to say you will make a decision to accept a conviction on the basis of a sentence that has been indicated, and it's another thing not being told what your rights are, and that's really the primary - the - the confiscation of the home could probably be cured under a civil remedy against the solicitor. That's ... a remedy that is still open - - -

HER HONOUR: Well, it's indicated that there's an intention to sue her.

[APPLICANT'S COUNSEL]: Yes.

HER HONOUR: Yes.

[APPLICANT'S COUNSEL]: But, Your Honour, I can't take this application any further. ...

19 As to the issue of prejudice to the prosecution case, in response to a question from Judge Hannan, counsel for the applicant conceded that, in circumstances where the applicant claimed the seized drugs were not his, there was prejudice to the respondent arising from the destruction of certain materials that could no longer be analysed for DNA.[13]

20 Ultimately, Judge Hannan found that neither limb of s 263(2) had been satisfied, and ordered that the 'Application for leave to appeal out of time [is] refused' and the 'Appeal struck out'. In essence, she found: first, the fact that the applicant had pleaded guilty being unaware that his home would as a result be forfeited did not constitute an exceptional circumstance explaining his failure to file the required notice within time; and, secondly, there was material prejudice to the respondent's case. Judge Hannan's ex tempore reasons were as follows:[14]

The matter before this court is an application for leave to appeal out of time. Pursuant to section 263(2) of the [CPA], this court may grant leave to appeal the conviction out of time if ... the court considers that the failure to file a notice of appeal within time was due to exceptional circumstances and the court is satisfied that the respondent's case would not be materially prejudiced because of the delay.

In relation to this matter, I have read the affidavit [relied on by the applicant]. To the extent that it has relevance, in my view, to this application, it appears that the applicant took legal advice on the day that this matter was originally listed as a bail application but subsequently became a sentence indication hearing.

A sentence indication was offered and accepted in circumstances where he was represented. Whilst it may be the case that he did not receive ... advice in relation to the consequences of pleading guilty in terms of forfeiture, that does not change his acceptance of the prosecution case and the indication which was given as to sentence.

He made the decision to accept the sentence indication because, no doubt, he thought that that was appropriate, and having received legal advice in relation to that matter, the matter proceeded by way of plea. The applicant then remained in custody for a period of time. During his period in custody, he was served with documents relevant to forfeiture.

A number of offences to which he pleaded guilty are schedule 2 offences. They are automatic forfeiture offences. It may well be that the applicant was surprised in relation to that consequence of his conviction in relation to the matter, but in my view, he is a long way from establishing that there has been any miscarriage of justice.

In relation to this matter, really, the applicant seeks to rely upon him becoming aware that his house was ultimately forfeited as establishing exceptional circumstances. In the end, that's what it boils down to, a complaint in relation to a lack of advice with respect to that matter. That is a consequence of him pleading guilty and really doesn't change the circumstances in which he accepted the prosecution facts as asserted and accepted the sentence indication.

He pleaded guilty on that basis. That is not altered by the fact that there is an additional consequence which may or may not have been known to him. He may well have a civil action in relation to the solicitor but that is not a matter for this court. It's a two-step test in relation to the granting of leave. I turn to the question of prejudice.

The real prejudice would now seem to lie in the lack of DNA testing. This applicant in his own affidavit asserts that he, in effect, had no knowledge or possession of the relevant substances. In those circumstances, undoubtedly, a professional police officer would have sought to have the packaging analysed for DNA. That is no longer possible due to disposal which followed the plea of guilty and the subsequent sentence in relation to this matter.

I note the last affidavit which was handed up on this proceeding and I note the prosecution's submissions in relation to it really providing no defence in relation to the charge, given the description given by the person who made that affidavit.

In any case, the prosecution case, in my view, was seriously prejudiced as a result of the destruction of material and the unavailability of now DNA testing which may well have been an integral part of the case in circumstances where numerous people occupied the premises and the prosecution was seeking to prove that this applicant was in possession at some relevant time.

In my view, neither alone nor in combination have exceptional circumstances been made out based on the matters put before this court. I am satisfied that the respondent's case would be materially prejudiced. The application for leave to appeal conviction out of time is refused.

21 Unsatisfied with the decision of the County Court, the applicant filed an originating motion in the Supreme Court seeking judicial review on two grounds:

1. The learned Judge erred in not adequately considering the matters listed in the confidential affidavits of the [applicant] sworn 1 August 2019 and 5 August 2019 denying him Natural Justice in pursuing his Appeal against Conviction out of time due to exceptional circumstances;

2. At the time of entering his plea of guilty at the Magistrates Court sitting at Geelong on 20 July [2018], the Plaintiff was denied independent Legal Representation as set out in his affidavit sworn 25 October 2019.

22 Taylor J heard the application for judicial review on 20 October 2020, and, on 8 April 2021, gave reasons for its refusal. Later, on 29 July 2021, she authenticated orders dismissing the application and awarding costs in favour of the DPP.

23 In her reasons for decision, Taylor J characterised the first ground before her as a complaint of error of law on the face of the record. The ground was underpinned by the notion that, because Judge Hannan had not found exceptional circumstances to have existed, she must not have given adequate consideration to the material. That evidence included material relating to the applicant's subsequently formed belief that at the time he pleaded guilty in the Magistrates' Court, his then solicitor was in an undisclosed relationship with a criminal about whom the applicant was informing to police.[15]

24 By the second ground, it was contended that Judge Hannan had exercised her discretion in an unreasonable manner having regard to five factors: first, the bail application transmogrified into a sentencing indication; secondly, that fact bespoke a plea agreement between the informant and the applicant; thirdly, the applicant did not receive proper advice as to forfeiture being a consequence of pleading guilty; fourthly, a pragmatic plea in response to the sentencing indication cannot be said to have discriminated between offences involving forfeiture and those that did not; and, fifthly, the imposition of an aggregate sentence for multiple offences to be served concurrently of itself indicates a failure to consider the offences individually and a failure properly to exercise discretion.[16]

25 In the course of her reasons, Taylor J observed that a conclusion that Judge Hannan 'did not give adequate consideration to the matters in the affidavits before her cannot be drawn from the conclusion she reached'.[17] She also observed:[18]

[Judge Hannan's] discretion did not miscarry by treating the [applicant's] initial ignorance and subsequent dislike of the flow-on effect of his conviction as irrelevant to the soundness of his plea and conviction. Neither affected the genuineness of his Meissner[[19]] consciousness of guilt or the sufficiency of the prosecution evidence. Other circumstances recognised as productive of a miscarriage of justice, such as where the plea of guilty is induced by threats, were inapplicable to him.

And, as the authorities make plain, there are sound reasons of public policy why appeals against conviction following a plea of guilty are only entertained in exceptional circumstances.

In the instant matter, her Honour obviously considered the timing of the [applicant's] actions, or inactions, beyond the statutory 28 days relevant. He failed to seek leave to appeal his conviction on four occasions when it might have been expected that he would do so after he became aware of the forfeiture proceedings. They are on 25 October 2018 when he was served with the restraining order, 14 December 2018 (or shortly thereafter) when he was released from prison, 23 December 2018 when his home was automatically forfeited and on 2 April 2019 when the forfeiture order was made. Her Honour was correct to do so.

It follows that her Honour did not err in the exercise of her discretion in finding that the [applicant] had failed to demonstrate exceptional circumstances.

Further and separately, the s 263(2) CPA test is a two limb test. Given the prosecution submissions, both written and oral, as to material prejudice, the concession by the [applicant's] barrister that the prosecution had suffered prejudice without any further argument that such prejudice was in no way material, her Honour could only have concluded that the respondent's case would be materially prejudiced by the delay. On that ground alone her Honour was obliged to dismiss the application for leave to appeal out of time.

The initial application to this Court and later amendment

26 On 26 August 2021, the applicant filed an application seeking leave of this Court to appeal against the decision of Taylor J.[20] The application contained two proposed grounds of appeal, formulated as follows:

1. The failure to advise the applicant of the automatic forfeiture of his house after a plea of guilty fell so far short of what might reasonably have been expected as to result in the applicant deciding to plead guilty under a material misconception constituting a miscarriage of justice.

2. Criminal Procedure Act s 263(2)(b) is satisfied by Drugs Poisons and Controlled Substances Act s 5 which establishes the possession necessary to make out the charge and removes any prejudice caused by the delay.

27 When the matter first came on for hearing, the Court indicated to counsel for the applicant that the applicant's 'grounds' and written case appeared to be deficient. We reminded counsel that the existence of an error on the part of the court at first instance - whether of law or fact - is an indispensable condition of a successful appeal.[21] Consistently with that imperative, the rules provide that an application for leave to appeal is required to 'set out specifically and concisely ... the proposed grounds of appeal if leave were granted'.[22] We were unable, however, to detect any alleged error by Taylor J within the two grounds. Plainly, the grounds were deficient.[23]

28 Moreover, we considered that not much in the way of further enlightenment was to be derived from the applicant's written case.[24] Certainly, for the most part it did not 'set out specifically and concisely the submissions which are relied on ... to support each ... proposed ground of appeal'.[25]

29 In the light of the Court's intimations as to the deficiencies of the grounds of appeal and written case - and as to the possible ramifications for the applicant's case in proceeding with them in their current state - counsel for the applicant sought, and were granted, an adjournment, and were given leave to file amended grounds of appeal and an amended written case.

30 Ultimately, the amended grounds of appeal sought to be relied upon by the applicant were as follows:

1. The refusal of judicial review by Her Honour constitutes an error on the face of the record because no reasonable person could conclude on the undisputed facts that failure to advise the Applicant at the time of pleading guilty that his plea produced the automatic forfeiture of his house did not constitute a miscarriage of justice and, ipso facto, exceptional circumstances within [s 263(2)(a) of the CPA].

2. The learned judge erred in finding that the argument developed at the hearing was not advanced before Judge Hannan (as she then was).

3. The learned Judge erred in accepting Judge Hannan's emphasis on the timing of the appeal.

4. [Section 263(2)(b) of the CPA] is satisfied by [s 5 of the Drugs Act] which establishes the possession necessary to make out the charge and removes any prejudice caused by the delay.

Ground 3: The 'emphasis' on the timing of the appeal

32 Under cover of ground 3, the applicant's counsel submitted that, in circumstances where the applicant did not receive legal advice in relation to forfeiture when entering the plea of guilty, a finding of exceptional circumstances was inescapable where, absent such advice, a miscarriage of justice had occurred. The miscarriage of justice was said to be constituted by the applicant's uninformed plea of guilty to a Schedule 2 offence - uninformed because he was ignorant of the property forfeiture consequences flowing from that plea, due to his solicitor's failure to advise him of those possible consequences - accompanied by the subsequent forfeiture of the property. Senior counsel submitted that the circumstances in which the guilty plea was entered 'must colour the explanation' for the delay in filing the notice of appeal.

33 In response, counsel for the Director submitted that the applicant's submissions misconstrue s 263(2)(a) of the CPA. The language of the subsection makes plain that exceptional circumstances must attach to the failure to file the notice of appeal, and does not invite attention to whether exceptional circumstances exist more broadly. Any exceptional circumstances must relate specifically to the failure to file the notice of appeal within the prescribed period, and not to any state of affairs more generally.

34 In our opinion, the submissions of counsel for the Director must be accepted. The unequivocal language of s 263(2)(a) makes it abundantly clear that the exceptional circumstances contemplated by the subsection must attach distinctly to the failure to file the notice of appeal, and are not concerned with whether there has been a miscarriage of justice in a more general sense.[26] That being so, it is impossible to detect any error in the approach taken by Judge Hannan, or in its subsequent endorsement by Taylor J.

35 Taylor J found that Judge Hannan did not err in finding that the applicant had not demonstrated exceptional circumstances for failing to file a notice of appeal within the time statutorily prescribed. As discussed below,[27] Judge Hannan correctly considered the applicant's action (or inaction) beyond the prescribed 28 day period. Hence, Judge Hannan took into account that the applicant failed to seek leave to appeal, first, when he was served with the restraining order on 25 October 2018; secondly, when released from prison on 14 December 2018; thirdly, when the property was automatically forfeited on 23 December 2018; and, fourthly, when the forfeiture order was made on 2 April 2019.[28] It followed, Taylor J held, that the applicant had failed to demonstrate exceptional circumstances.[29]

Ground 1: Failure to find exceptional circumstances despite automatic forfeiture

37 Turning next to ground 1, senior counsel for the applicant submitted that there were two propositions that underpinned it: first, it was unreasonable in 'the Wednesbury sense'[30] for Judge Hannan not to find that the miscarriage of justice flowing from the applicant's former solicitor's failure to advise him of the confiscation consequences of pleading guilty constituted exceptional circumstances within the meaning of s 263(2)(a) of the CPA; and, secondly, insofar as Taylor J failed to find that Judge Hannan's decision was unreasonable, her decision was 'plainly wrong'. He submitted that on ground 1 he 'cannot rely on more than the chronology - the chronology is the explanation'.

39 In Minister for Immigration and Citizenship v Li,[31] Hayne, Kiefel and Bell JJ said that the legislature 'is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably'.[32] Their Honours observed that, '[p]roperly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker',[33]and said:[34]

Lord Greene MR's oft-quoted formulation of unreasonableness in Wednesbury[35] has been criticised for 'circularity and vagueness', as have subsequent attempts to clarify it.[36] However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King,[37] before Wednesbury was decided. ...

40 Moreover, Crennan and Bell JJ made clear in Minister for Immigration and Citizenship v SZMDS that a decision will not be unreasonable if it lies within the scope of rational decision-making:[38]

Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

41 At the risk of stating the obvious, the discretionary power conferred by statute which Judge Hannan was required to exercise reasonably is that reposing in s 263(2) of the CPA. The applicant's case is that no reasonable decision-maker in Judge Hannan's position exercising the discretionary power conferred by s 263(2) could have found other than that, first, the failure of the applicant's solicitor to advise him of the forfeiture ramifications of his guilty plea - which crystallised - constituted a miscarriage of justice; and, secondly, the miscarriage of justice so constituted was itself enough to establish the exceptional circumstances required by the subsection.

42 The short answer to the applicant's case is that his argument wrongly assumes that exceptional circumstances attending the applicant's case generally, rather than those confined to explaining the delay, are sufficient to engage s 263(2)(a). As a matter of plain statutory construction, the exceptional circumstances referred to in that paragraph are only those that might explain the failure to file the notice of appeal within time. This construction has been (in our view) correctly adopted and applied by this court in relation to this very provision,[39] and cognate provisions employing the same or similar terms,[40] on numerous occasions.

43 Moreover, even on its own terms, the applicant's argument lacks merit. In both written and oral submissions in support of ground 1, the applicant's counsel placed a deal of reliance on this Court's decision in Kohari.[41] The applicant in that case had pleaded guilty in the County Court to a number of charges, including cultivating a commercial quantity of cannabis. He was sentenced to four months' imprisonment, combined with a CCO of 30 months' duration. A week after he was sentenced, he was served with a restraining order over his home (and other property). Despite his guilty plea, the applicant sought to appeal against his conviction on the cultivation charge on the basis that the plea 'was not motivated by a genuine acknowledgement of guilt'.[42]

44 Kohari involved police finding more than 70 kilograms of cannabis growing in different parts of the applicant's home, a commercial quantity of cannabis being 25 kilograms. For the purposes of the appeal, the applicant deposed that he had no knowledge whatsoever as to the amount of cannabis that would be generated from the plants that he had grown; had never intended to grow more than 25 kilograms of cannabis; and had never considered the possibility that the cannabis that he was cultivating would exceed that weight.[43] He also deposed that he was not at any stage told by his solicitors, that, in order to sustain a charge of cultivation of a commercial quantity, the prosecution would have to prove that he intended to cultivate not less than 25 kilograms of cannabis.

45 In allowing the appeal and setting aside the conviction for cultivating a commercial quantity of cannabis, the Court held that it would be 'an affront to justice' to permit the conviction to stand.[44] The Court observed that, since he was not told, and would not have known, that the requisite intention would have to be established by the prosecution, the applicant's plea could not be regarded as having been made in full knowledge of necessary facts, and their legal consequences. It followed that the plea did not evince, in the relevant sense, a 'consciousness of guilt'.[45] Further, the Court said that 'the applicant should have been informed that a restraining order would be sought against him at an earlier stage so that he could give proper consideration whether or not to plead guilty to the cultivation charge'.[46]

46 Notwithstanding the reliance placed upon it by the applicant's counsel, it is plain that Kohari differs in important factual respects from the present case. It is clear that the applicant in that case had not been properly advised as to an important constituent element of the offence; that is, that the prosecution needed to prove that the applicant knew that there was a 'significant or real chance' that the cannabis he was growing came to at least 25 kilograms.[47] It was for that reason that the applicant's plea of guilty in Kohari could not be said to evince a 'consciousness of guilt'. Importantly, the Court observed that[48]

it seems clear that mistaken advice, even rendered incompetently, will be of no avail when seeking to set aside a conviction based upon a plea of guilty if that advice goes only to the sentence likely to be imposed. In such cases, the accused must simply accept that, having retained legal advisers and acted upon their advice, there are strong public policy considerations that require finality in litigation, and that mistaken advice of that kind will be of no avail.[49] Otherwise, the appellate courts might be swamped by attempts on the part of disappointed offenders to be given a second chance to have their cases heard at trial.

47 Further, in Meissner, Dawson J observed:[50]

It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.

48 It is apparent from the circumstances of the present case that, although he may not have been made aware of the possible forfeiture implications of pleading guilty, the applicant pleaded guilty in the face of the sentence indication that was given. And although the applicant has since claimed that the relevant drugs and firearm were not his, there is nothing to suggest that he did not understand the nature of the charges; or did not intend to admit he was guilty of them; or could not in law have been guilty of the offence. That being so, it is impossible to conclude that the applicant's pleas of guilty could constitute a miscarriage of justice, even in circumstances in which he had not been apprised as to a possible collateral consequence of his pleas.

49 Returning to the short answer, however, the fact that the applicant pleaded guilty in ignorance of the forfeiture ramifications attending such a course, went no way to explaining why he had not filed a notice of appeal within the statutory time limit, let alone providing a basis for concluding that there were exceptional circumstances for that failure. Neither Judge Hannan nor Taylor J could reasonably have concluded otherwise.

Ground 2: Failure to find that an argument had been put in the County Court

51 The submissions advanced by the applicant's counsel under cover of ground 2 appear to have proceeded upon a misconception.

52 As a first step in his arguments on this ground, senior counsel took the Court to the following passage in the reasons of Taylor J:[51]

As this is an application for judicial review, I am not required to determine the matter of principle. I am required to determine whether the [applicant] has established error. The argument developed in this application was not advanced before [Judge Hannan].

53 The applicant's counsel submitted that this passage betrays error. Counsel proceeded on the basis that the reference in it was to a submission that had been made to Taylor J to the effect that a reason for the applicant not having filed a notice of appeal within time was the failure of his solicitor to give him legal advice as to the possible confiscation consequences flowing from a plea of guilty. Such a submission, counsel contended, was also made to Judge Hannan. It was therefore wrong of Taylor J to say that the argument developed in the application before her was not advanced in the County Court.

54 In attempting to make good that submission, senior counsel relied on the following statement made by Judge Hannan in the course of argument:[52]

So as I understand - and you say that [the conviction] wasn't appealed out of time because, firstly, [the applicant] was in custody, secondly, he had been not given proper legal advice in relation to a consequence of conviction, and really, that ... largely, it's the confiscation matter.

55 Counsel for the applicant submitted that this passage demonstrates that, contrary to what Taylor J said, the argument developed before her had indeed been advanced in the County Court.

56 The fundamental difficulty with that submission is, however, that the argument referred to by Taylor J in the impugned passage was an altogether different argument to the one seized upon by the applicant's counsel to prop up ground 2. When her reasons are read in proper context, it is plain that the argument to which Taylor J was referring was that contained in the following paragraph of her reasons:[53]

Rather, the plaintiff argues that a further category of miscarriage of justice must be recognised. That is, that an accused cannot have a true Meissner consciousness of guilt unless all the sequela of conviction are known to him or her at the time a plea of guilty is entered.

57 Thus Taylor J was, in our view, referring to the Meissner consciousness of guilt as not having been raised before Judge Hannan. In this regard she was correct. It follows that this ground proceeded on a misconception.

Ground 4: Material prejudice and s 5 of the Drugs Act

60 The applicant's counsel contended that Judge Hannan could not have found other than that the prosecution on the applicant's drug trafficking charge 'would not be materially prejudiced' because of the availability of s 5 of the Drugs Act in proof of the charge.[54] In turn, Taylor J should have concluded that Judge Hannan's failure to so find constituted an error of law.

61 In essence, counsel for the applicant contended that Judge Hannan's concerns about the inability to test the seized drugs for fingerprints or DNA were answered by the provisions of s 5. Counsel submitted in the amended written case that 'to destroy evidence in a case involving forfeiture or potential forfeiture of property should not be permitted to ground an objection to a revocation of a plea of guilty in the case where such a revocation is based on a miscarriage of justice in the entry of the plea'. In oral argument, counsel submitted additionally that it was unreasonable for the informant to have effected destruction of the drugs following the applicant's guilty plea.

62 Counsel for the Director said that it was wrong to suggest that the deeming provisions of s 5 removed any material prejudice. Whilst there is no doubt the prosecution would have sought to rely on s 5, the real issue of controversy between the parties - as articulated by the applicant on affidavit - was whether or not the relevant drugs belonged to him. On any trial of the matter, the issue would have been whether the drugs belonged to the applicant or to someone else. Hence, the fact that the drugs cannot be DNA or fingerprint-tested due to their destruction materially prejudices the prosecution. As the Director's counsel pointed out, that this constituted prejudice was conceded by the applicant's counsel before Judge Hannan.

63 In our opinion, it is indeed a formidable obstacle to accepting the applicant's contentions under cover of ground 4 that counsel for the applicant conceded before Judge Hannan that the prosecution would be prejudiced due to destruction of the relevant drugs. The concession is found in the following discussion:[55]

[APPLICANT'S COUNSEL]: Just on the issue of prejudice. My client doesn't challenge that drugs were found in his home.

HER HONOUR: Well, these are important matters, because issues of prejudice are raised. So he - he doesn't dispute that the drugs were located, where they were located or what they are?

[APPLICANT'S COUNSEL]: No, doesn't dispute those at all.

HER HONOUR: I'm just going to the prosecution document that sets out the prejudice. Lack of DNA testing, because they weren't tested to prove that they were ..... - - -

[APPLICANT'S COUNSEL]: My client's DNA was - was given freely, but - but my client says there were four other people at the home when he - when he was arrested.

HER HONOUR: Well, that - well, that may be the case, but the prejudice that is pointed to was the fact that, were it the case that this matter had been prepared for contested hearing or in a timely fashion, that evidence may well have been available to the prosecution in support of the proposition that your client's in possession of those substances. But as I read it - and I will get clarification from the prosecutor - that's no longer available because the materials have been destroyed. So that's a prejudice the prosecution has had to point to.

[APPLICANT'S COUNSEL]: Well, in their submissions. I mean, that's the evidence we have as far as (indistinct).

HER HONOUR: Well, that is a prejudice, is it not?

[APPLICANT'S COUNSEL]: Yes. Yes.

HER HONOUR: Yes.

[APPLICANT'S COUNSEL]: But he does name who the drugs belong to.

64 Section 5 of the Drugs Act places an onus on the prosecution in the first place to prove beyond reasonable doubt that the applicant was in occupation of the property where the drugs were situated. At that point, it is for the applicant to demonstrate on the balance of probabilities that he was not in possession of the drugs.[56] Self-evidently, in order to rebut the applicant's contention that he was not in possession, it would have been legitimate for the prosecution to rely on any available DNA or fingerprint evidence that connected the applicant to the drugs. Any opportunity to rely on such evidence, however, has now been lost to the prosecution due to the destruction of the drugs. In those circumstances, we consider that it was well open to Judge Hannan to find that the prosecution would be materially prejudiced by the delay in filing the notice of appeal. Indeed, as we have said, so much was conceded before her by the applicant's counsel.

65 It is thus clear that the manner in which Taylor J dealt with the issue of prejudice is beyond any legitimate criticism. Having found that Judge Hannan did not err in finding that the applicant had failed to establish exceptional circumstances under s 263(2)(a), Taylor J said:[57]

Further and separately, the s 263(2) CPA test is a two limb test. Given the prosecution submissions, both written and oral, as to material prejudice, the concession by the [applicant's] barrister that the prosecution had suffered prejudice without any further argument that such prejudice was in no way material, [Judge Hannan] could only have concluded that the respondent's case would be materially prejudiced by the delay. On that ground alone [Judge Hannan] was obliged to dismiss the application for leave to appeal out of time.

66 There is one final matter that we should mention before leaving this ground. As we have mentioned, senior counsel for the applicant orally submitted that it was unreasonable for the police informant to attend to the destruction of the seized drugs after the applicant had entered his guilty plea.[58] We disagree. Once the time for appeal prescribed by statute has passed, there generally would be no reason for investigating police to retain dangerous drugs.

67 For the foregoing reasons, leave to appeal should be refused.

[1] See [7] et seq below.

[2] Samios v DPP [2020] VSC 165 ('Reasons'). Taylor J heard the application for judicial review on 20 October 2020, and gave reasons for its refusal on 8 April 2021. Authenticated orders were made on 29 July 2021. See [26] and fn 20 below.

[3] Although this proceeding originated in the criminal jurisdiction, s 14A(3) of the Supreme Court Act 1986 provides that an appeal from a judgment or order made in the exercise of civil jurisdiction - including judicial review - is a 'civil appeal'. Cf Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246.

[4] Supreme Court Act 1986, s 14C.

[5] See Kennedy v Shire of Campaspe [2015] VSCA 47 [11], [19] (Whelan and Ferguson JJA); Note Printing Australia Ltd v Leckenby [2015] VSCA 105; (2015) 50 VR 44, 70-72 [78]-[82] (Tate JA, Whelan and Ferguson JJA agreeing).

[6] The applicant had acquired his interest in the property through an inheritance.

[9] See Drugs Act, s 70(1) and sch 11, pt 3, column 2B.

[10] See Confiscation Act 1997, s 3(1) and sch 2, cl 1(ad).

[11] Section 35(1) relevantly provides:

35 Automatic forfeiture of restrained property on conviction of certain offences

(a) a person is convicted of a Schedule 2 offence; and

(b) a restraining order is or was made under Part 2 in respect of property for the purposes of automatic forfeiture in reliance on -

(i) the conviction of the accused of that offence; ...

(c) the restrained property is not the subject of an exclusion order under section 22; and

(ca) the restrained property is not the subject of an application under section 20 that is still pending -

the restrained property, subject to any declaration under section 23, is forfeited to the Minister on the expiry of 60 days after -

[12] We respectfully agree with the analysis of Richards J in Cao v Collister [2022] VSC 36, [16], [31], [45] ('Cao').

[13] See [63] below.

[18] Reasons [96]-[100] (footnotes omitted).

[19] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 ('Meissner').

[20] Counsel for the Director submitted that the application was out of time, since it was not filed within 42 days of the 'decision' on 8 April 2021: see Supreme Court (General Civil Procedure) Rules 2015, r 64.05. Rule 64.01 defines decision, however, to include 'judgment, order, determination, verdict, ruling, finding or declaration'. (See also s 14B(1) of the Supreme Court Act 1986.) The definition is broad enough to include the order authenticated on 29 July 2021. Looked at in this way, the application for leave to appeal was filed within the time prescribed by the relevant rule. On the other hand, if the order was pronounced in court when reasons for decision were published, the 'decision' would have dated from that date: Dalton v South Australia (in the right of the Department for Families & Communities) [2010] SASC 45; (2010) 106 SASR 279, 289-90 [39] (Duggan J); and an extension of time would have been required.

[21] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 518-9 (Mason and Deane J).

[22] Supreme Court (General Civil Procedure) Rules 2015, r 64.04(d)(ii).

[23] The Court drew the attention of counsel to State of Victoria v Bacon [1998] 4 VR 269, 285-6 (Phillips JA), citing Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 (Ryan J) and Motor Accidents Board v Coutts [1984] VicRp 69; [1984] VR 790, 794-8 (Brooking J).

[24] See Supreme Court (General Civil Procedure) Rules 2015, r 64.01(1).

[25] Practice Note SC CA 3, [9.3](a)(i).

[27] At [57]. See also [25].

[28] Reasons [98]-[99]. See [25] above.

[30] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[31] Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332.

[34] Ibid 364 [68] (citations as in original).

[35] [1947] EWCA Civ 1; [1948] 1 KB 223 at 230.

[36] See Fares Rural Meat & Livestock Co Pty Ltd v Australian Meat and Live-Stock Corporation [1990] FCA 139; (1990) 96 ALR 153 at 166 per Gummow J, referring to Allars, Introduction to Australian Administrative Law (1990), p 187 [5.52].

[38] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 649-50 [135].

[40] Scherwin v Equal Opportunity Board [1994] 2VR 279, 287 (McDonald J); Hughes v Morgan & Anor [1998] VSC 147, [18]; Shire of Carnarvon v Klein Corporation Pty Ltd [2008] VSC 24, [43]; Burlock v Wellington Street Investments Pty Ltd [2009] VSC 565, [27]; Kalb v Magistrates' Court of Victoria [2014] VSC 137, [12]-[18]; Lazaveric v Victoria Police [2014] VSC 497, [33].

[41] Kohari v The Queen [2017] VSCA 33 (Weinberg and Kyrou JJA) ('Kohari').

[42] Reliance on a second particular, that the integrity of applicant's plea was impugned by his 'lack of knowledge that the respondent would seek the restraining order for automatic forfeiture over his home after sentence and the almost inevitable forfeiture that would occur', was expressly abandoned. In light of that abandonment the Court said: 'Accordingly, nothing more need now be said about that proposed particular of the ground': Kohari, [4].

[48] Ibid [136] (citation as in original).

[49] D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1.

[50] Meissner, 157 (citations omitted; emphasis added).

[52] See [18] above.

Without restricting the meaning of the word "possession", any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary.

[56] R v Gluyas [2002] VSCA 12; (2002) 128 A Crim R 7. See also Momcilovic v The Queen (2011) 245 CLR 1.