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[2015] VSCA 84
General information, not legal advice.
Court of Appeal (Vic)
2015-05-01
Osborn JA
Original judgment source is linked above.
DPP v SLS [2014] VCC 109 (Judge Cannon, 30 October 2013 (date of conviction), 21 February 2014 (date of sentence))
ELECTION TO HAVE APPLICATION DETERMINED BY THE COURT OF APPEAL
PURSUANT TO S 313(2) OF THE CRIMINAL PROCEDURE ACT 2009
CRIMINAL LAW - Application for extension of time to file notice of appeal against conviction - Delay of 265 days - Explanation for delay not entirely satisfactory - Proposed grounds have no reasonable prospect of success - Application refused.
Ms V Anscombe, Acting Solicitor for Public Prosecutions
1 The applicant appears in person to seek an extension of time in which to appeal against conviction and, if that application is granted, seeks leave to appeal against conviction.
2 Following a trial in the County Court, the applicant was convicted by a jury on 30 October 2013 of a series of related sexual offences. He was sentenced on 21 February 2014 by the trial judge, her Honour Judge Cannon.
Indecent act with a child under 16 [s47(1) of the Crimes Act 1958]
10 years [s47(1) of the Crimes Act 1958]
5 years (s320 of the Crimes Act 1958]
Indecent act with a child under 16 [s47(1) of the Crimes Act 1958]
10 years [s47(1) of the Crimes Act 1958]
Produce child pornography [s68(1) of the Crimes Act 1958]
10 years [s68(1) of the Crimes Act 1958]
Produce child pornography [s68(1) of the Crimes Act 1958]
10 years [s68(1) of the Crimes Act 1958]
Pre-sentence detention declared pursuant to s 18(1) of the Sentencing Act 1991:
Other relevant orders: Sentenced on Charges 4 and 5 as a Serious Sexual Offender pursuant to section 6F of the Sentencing Act 1991.
Forensic Sample Order Pursuant to section 464ZF of the Crimes Act 1958.
3 On 23 July 2014 the applicant obtained leave to appeal against sentence but his sentence appeal was ultimately dismissed on 25 November 2014. He then filed this application for extension of time to appeal against conviction on 11 December 2014, some 265 days out of time. The fundamental reason proffered for the application for extension of time is that Victoria Legal Aid ('VLA') refused to fund a conviction appeal. In elaboration of that proposition, the applicant has further submitted, first that VLA has a lengthy process to approve funding for conviction appeal. The applicant had to wait for a final decision in a letter from VLA until 17 November 2014. Prior to that a report had been received from the trial defence barrister dated 20 March 2014, a further report had been received by way of internal review dated 31 July 2014, and a report had been received from an external independent review person, dated 7 November 2014. I accept that, throughout this process, the applicant genuinely hoped and believed that he had prospects of ultimately obtaining legal aid for a conviction appeal.
4 The applicant next says that VLA had some difficulty and that there was some substantial delay in obtaining necessary transcripts for the purposes of his appeal. He received transcripts of the prosecutor's opening and closing addresses on 16 October 2014 and transcripts of the judge's charge on 21 October 2014.
5 He further says that, throughout the period in issue, he suffered from health problems, including long-term depression and severe arthritis which affected his ability to effectively participate in the appeal process under the gaol environment. He had no computer, a lack of privacy and limited access to legal textbooks. Lastly, he told the Court this morning, that he was not in fact aware of the relevant time limit until legal aid had been finally refused, and he sought to institute his own appeal.
6 Section 275 of the Criminal Procedure Act 2009 requires an application for leave to appeal against conviction to be made within 28 days after the day on which the person is sentenced or any extension of that period granted under s 313. Pursuant to the rules of Court the Registrar of Criminal Appeals of the Supreme Court initially considered and refused an extension of time under s 313(1). The applicant now asks the Court to rule on the application pursuant to s 313(2).
7 The discretion to grant an extension of time under s 313 is unfettered in terms and must be governed by the justice of the particular case. The Courts have however developed a longstanding set of principles to guide the proper exercise of the discretion having regard not only to the interests of the applicant but also the public interest in finality and the effect of protracted proceedings upon victims. The classic statement of the relevant principles was made by Gowans J in delivering the judgment of the Full Court in R v Darby[1] and re-stated in R v O'Keefe as follows:
(1) the prescription by the statute of the time limit for giving notice is intended to secure finality and compliance is intended to be required in the ordinary case;
(2) extension of the time is a matter for the discretion of the Court, and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension;
(3) rigid restrictions cannot be imposed on the exercise of discretion but in general the Court will require special and substantial reasons for extending the time;
(4) the longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be;
(5) it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;
(6) a reasonably satisfactory account of the failure to comply with the statutory requirement needs to be forthcoming.[2]
8 In Bowling v The Queen, Redlich JA put the essential considerations this way:[3]
9 In the present case the nature of the offending and its impact upon the victim raise a substantial public interest in maintaining the finality which the time limit fixed by the statute is intended to achieve.
10 Furthermore, the time which has elapsed is so substantial that special circumstances and serious prospects of success would ordinarily need to be established before the application could be granted. Moreover, although I accept that there were delays until October last year in the provision of relevant documentation to the applicant, and that the availability of legal aid was not finally resolved until November, the reasons proffered by him for delay are not entirely satisfactory. He has shown himself well able to institute and conduct the present application without legal assistance, and it is apparent that he must have been aware there was a real likelihood of not obtaining legal aid from the time of counsel's advice in March 2014.
11 Nevertheless, the applicant has offered some explanation for the delay which occurred and referred to a series of matters which demonstrate that he did make ongoing attempts to institute his appeal. Moreover, he was unrepresented during the relevant period of delay. In these circumstances, it is necessary in fairness to the applicant, to say something first about the circumstances of the offending, and then to deal with the prospects of success of each of the 40 proposed grounds of appeal in turn.
12 The applicant was aged 58 at the time of the offending and aged 60 at the time of sentence. The complainant was six years old at the time of the offending.
13 The complainant's parents worked in a cafe business on Sundays and the applicant and his wife agreed to take care of the complainant on Sunday mornings so that the complainant could attend a church service with the applicant. This arrangement had been in place for approximately 18 months before the offending occurred.
14 A number of months prior to the offending the complainant's mother asked the applicant to stop hugging and kissing her child as the complainant had told her mother that she did not like it. The applicant refrained from such conduct after having this conversation with the complainant's mother.
15 On 5 August 2012, a Sunday, the applicant was minding the complainant at his home. The applicant and complainant were watching TV together in the lounge room. The applicant pulled down his pants and exposed his penis to the complainant. The applicant said to the complainant 'lick it and open the hole' (Charge 1 - indecent act with a child under 16 years).
16 The complainant repeatedly refused to comply with the applicant's request. The applicant then dragged and/or pushed the complainant by the hand into his bedroom (Charge 2 - assault).
17 The applicant then laid the complainant on the bed, pulled down her pants and licked her vagina (Charge 3 - indecent act with a child under 16 years).
18 The applicant also took photographs of the complainant's vagina (Charge 4 - producing child pornography).
19 On the same day, the applicant took a photograph of the complainant's bottom while she was on the toilet and in the process of defecating (Charge 5 - producing child pornography).
20 The following night the complainant's parents confronted the applicant's wife regarding complaints that their daughter had made to them. The complainant was with her parents during the conversation with the applicant's wife.
21 The Crown alleged at the trial that the applicant made admissions in a telephone call to the complainant's mother following this conversation. The complainant's mother gave evidence that after she had told the applicant's wife what the complainant had told her had occurred, the applicant apologised to the complainant's mother over the phone on the evening of 6 August 2012. She said the applicant apologised both at the outset of that conversation and at other stages in response to the mother asking if he had touched her daughter, that he asked her to forgive him and said that it had been going on for a few months or about a month.
22 In the applicant's record of interview he admitted apologising to the complainant's parents but said he was referring to answering questions asked by the complainant about sexual matters.
23 I interpolate, for completeness, that significantly on one view, the complainant's first VARE interview was recorded within seven days of the offending and the initial complaint to her mother.
24 Apart from the evidence of the complainant as to the offending and reliance upon the telephone conversation admissions, the Crown relied upon tendency evidence to establish improper sexual interest towards the complainant and the context of the offending. At some points in her evidence and in the complaint to her mother, the complainant said that the accused had licked her on the vagina, or tried to lick her on the vagina and exposed himself, or tried to do so on occasions other than on those giving rise to the charges and that he had taken photos of her genitals on previous occasions. There was also evidence at the trial that the accused said things of a sexual nature to the complainant, such as missing her wee and her bum and telling her that husbands and wives like to lick each other's private parts. This evidence was complemented by the alleged admissions of sexual touching over a period of a month, or a few months.
25 I turn next to the proposed grounds of appeal. In addressing them I have had regard not only to the detailed submissions made by the applicant in his written case in respect of each ground and the oral amplification of that case this morning, but also the written documentation that the applicant has lodged with this Court which elaborates alleged errors made by the prosecutor and alleged errors made by the judge and particularises in great detail alleged lies by the complainant and her mother.
Proposed grounds 1 and 2 -invalidity of search warrant and charge sheets[7]
26 The applicant submits that a search warrant obtained after the complainant made her first VARE was defective because it nominated as the reason for the warrant the commission of the offences of sexual penetration of a child and indecent acts. The fact that the penetration charge was not ultimately pursued does not make the warrant invalid.
27 The applicant also complains that there was a defect in the charge sheets initially prepared in respect of the offending. It is sufficient to say that there is no apparent defect in the indictment.
28 There is no arguable basis for these procedural grounds.
Proposed grounds 3 and 6 - the learned trial judge erred in her directions to the jury about the complainant and the complainant's mother as witnesses[8]
29 I accept the Crown's submissions with respect to these proposed grounds.
19.1. The Applicant seems to argue that the Learned Trial Judge erred by failing to give the jury a full warning that the evidence of the Complainant's mother may be unreliable. The Learned Trial Judge in fact agreed an unreliability warning was appropriate regarding the evidence of the Complainant's mother regarding the alleged admission by the Applicant. The Learned Trial Judge outlined to Counsel her proposed direction and there were no amendments sought by Counsel. The Learned Trial Judge ultimately directed the jury in those same terms and there was no exception to this direction.
19.2. The Learned Trial Judge did not err in rejecting the defence submission to give an unreliability warning to the jury regarding the Complainant. Her Honour reminded the jury during her charge of all matters that could potentially undermine the Complainant's credibility. Further, she directed the jury that they must scrutinise the Complainant's evidence carefully and that they could only convict the Applicant of the charge in question if, after having carefully scrutinised her evidence, they were satisfied beyond reasonable doubt that she is both credible and reliable in her account which supports the charge they were considering.[9]
30 There was no reasonably arguable error in the trial judge's directions.
Grounds 4 and 29 - the learned trial judge erred in directions given in relation to tendency evidence[10]
31 I also accept the Crown's submissions with respect to these grounds.
20.1. The first direction the Learned Trial Judge gave about tendency evidence was a direction in the running of the trial. This was discussed with Counsel and Counsel agreed with Her Honour's formulation of the uncharged acts. Defence counsel then requested that the Learned Trial Judge also give a direction in running about admissions and the Learned Trial Judge agreed and foreshadowed with defence counsel what she would say. Defence counsel agreed with what Her Honour proposed to say. The Learned Trial Judge directed the jury in those terms reminding the jury that the alleged admission was very much in dispute. Accordingly, there has been no prejudice.
20.2 If the Applicant is complaining under cover of Ground 29 that the Learned Trial Judge has erred in her final directions about tendency, it is submitted that the directions were appropriate. Firstly, the parts of the transcript that the Applicant relies on in the Written Case for this ground were actually a discussion between the Learned Trial Judge and Counsel regarding the appropriate direction for the alleged admissions, not tendency evidence. Secondly, the Learned Trial Judge gave a comprehensive and appropriate direction concerning tendency evidence and context evidence. No exceptions were taken to these directions.[11]
32 These grounds are not reasonably arguable. The judge's charge was careful, clear and the subject of no exception. The evidence was admitted as demonstrating improper sexual interest and context. Its proper use was carefully explained to the jury.
Ground 5 - the learned trial judge made an error rejecting defence main legal argument[12]
34 Both the prosecutor and defence counsel addressed the jury on the basis that the critical issue in the case was whether the jury accepted the evidence of the complainant as truthful and reliable. The trial judge also repeatedly emphasised the centrality of this issue in her charge. There was plainly sufficient evidence of the offending to go to the jury and it was for the jury to decide whether they accepted it or not. The prosecutor put to the jury that the evidence should be accepted for four main reasons, namely the manner in which the complainant gave her evidence; the detailed nature of that evidence including the words she ascribed to the applicant; the circumstances in which the complainant complained of the offending to her mother; and the admissions made by the applicant to the mother in a telephone call which was also overheard on speaker by the complainant's father.
35 Defence counsel submitted that the complainant was a 'gorgeous little girl, cute as a button, a much loved only child' and that when the jury first saw her on the screen they may well have gasped. She further submitted that the complainant gave quite a performance in the two recorded interviews that she had with police but that, despite the sympathy that they may have felt for the complainant or her parents, the jury should not rationally be persuaded of the reliability of her evidence. Counsel pointed particularly to the unlikelihood of the offending occurring in applicant's family home in which his extended family lived. She pointed to evidence of the applicant's good character, and the fact that the allegations came out of the blue after some 18 months of child minding. She submitted that it was possible the description of the offending was suggested to the complainant by her mother, who had discussed a similar case with her. In addition, it was common ground that the complainant had asked the applicant questions about sexual matters which he had answered. She submitted that there was a real risk that the process of telling the story had contaminated the evidence. She also highlighted inconsistencies in the various accounts given by the applicant of the offending. She further submitted that the jury could never be satisfied the telephone conversation evidenced an acceptance by the applicant that he had indecently touched the complainant.
36 All these matters raised quintessential issues of fact for the jury. There is nothing in this proposed ground. Defence counsel put to the jury fully and eloquently the suggestibility argument which the applicant now characterises as the main defence argument. It is apparent that the jury rejected this argument in reaching the conclusion that they were satisfied beyond reasonable doubt of the guilt of the offences of which the applicant was convicted.
Grounds 7, 8, 10, 24, 25, 30 and 34 - criticism of prosecutor's closing address[13]
37 There was nothing improper in the prosecutor's closing address giving rise to an arguable ground of appeal.
Grounds 9, 12, 13, 14, 15, 16, 17, 18, 19 and 21 - arguments concerning the timing of the offences****[14]
38 The matters raised with respect to the timing of the offences went to questions of contextual circumstance, the facts and significance of which were for the jury to determine. None of these proposed grounds are arguable. There was evidence supporting the Crown case as it was put to the jury.
Grounds 11 and 20 - jury not following learned trial judges directions and biased jury[15]
39 There is nothing to suggest that the jury did not perform their duties in accordance with the law and the directions given by the trial judge.
Ground 22 - the prosecutor is a very convincing storyteller[16]
40 The prosecutor's final address was not unfair. Nor does the proposed ground 22 accurately state what he said.
Ground 23 - the prosecutor defied the learned trial judge's order to use the word 'alleged' before 'admission'[17]
41 This proposed ground is misconceived. The prosecutor was entitled to put to the jury that statements made by the accused amounted to relevant admissions.
Grounds 26, 27 and 28 - the learned trial judge erred by allowing the prosecutor to add to his final address[18]
42 The tendency evidence upon which the Crown relied was opened to the jury and was the subject of a direction to the jury in the course of the trial. The jury requested a copy of that direction. The tendency evidence was in turn the subject of challenge by way of cross-examination. Further, it was woven through the evidence upon which the Crown relied as a whole because it was the subject not only of direct evidence from the complainant, but also evidence of complaint by the complainant and alleged admissions by the accused.
43 The prosecutor did not rely on the tendency evidence in final address as one of his four main points why the complainant's account of the offending should be accepted. Indeed, he did not refer to it at all in his initial final address. It was unclear, as the judge observed, whether this was a deliberate omission or an oversight. This confronted the judge with a difficult situation. Amongst other things, it was not clear how the Crown put its case with respect to the tendency evidence after that evidence had been contested. Further, the defence had to confront a case which in part had not been the subject of closing address. Even more significantly perhaps, there was a very real forensic risk that in dealing with the tendency evidence in her charge the judge would implicitly highlight issues on which counsel had not addressed. In the circumstances of the case, it was entirely appropriate for the judge to raise the issue with counsel before the defence address. It was also open to her Honour after having heard argument from counsel to permit the prosecutor to further address the jury with respect to the confined issue of the use of the tendency evidence for which the Crown contended. The prosecutor did so in short compass. The transcript of his further address runs to a little over one page. There was no resultant unfair prejudice to the applicant. The case which the applicant faced was confirmed and clarified before defence counsel addressed. The risk that the judge's charge might otherwise of itself assume disproportionate significance in relation to this issue was avoided. No application for discharge of the jury was subsequently made.
Ground 31 - the learned trial judge erred in directing the jury as to the good character of the applicant[19]
45 There was no arguable error in the judge's direction as to good character. It was given in conventional terms and identified the relevant considerations in a balanced way.
Ground 32 - the learned trial judge was not present during deliberations[20]
46 After the jury retired to consider their verdict and prior to adjourning to the following day, the trial judge asked counsel whether they objected to her not taking a question or a verdict for a two hour period (between 10:45am and 12:45pm) the following day. Neither counsel objected to this course.
47 There is no indication the jury asked any questions during their deliberations. Further, it appears the judge was in fact available earlier than she had indicated as the transcript reveals the verdict was taken at 12:08pm.
Ground 33 - the learned trial judge gave confusing messages about the transcript to the jury[21]
49 The judge gave conventional and proper directions to the jury concerning the use of the transcript. No exception was taken to them. There is nothing in this proposed ground.
Ground 35 - the learned trial judge put pressure on counsel to agree to a Basha hearing for Mrs Warden[22]
50 Defence counsel made an application for a Basha hearing following discussion concerning the admissibility of tendency evidence. The application was made after instructions were obtained from the applicant. There is nothing in this proposed ground.
Ground 36 - the learned trial judge failed to give a direction to the jury about seeing on video the complainant playing with her stuffed toy as prejudicial[23]
51 Following an objection by defence counsel and discussion with the trial judge, the VARE was edited to delete images of the complainant entering the room with a large soft toy. In turn, the trial judge directed the jury to put aside any feelings of sympathy or prejudice, when considering the evidence. She specifically directed the jury not to be influenced by any feelings of sympathy or benevolence towards the complainant because she was a young child or because at one stage they saw her playing with a doll at points in one of her VAREs. There is nothing in this proposed ground.
Ground 37 - the learned trial judge erred to reject evidence[24]
52 This proposed ground seeks to ventilate questions of asserted inconsistencies of detail in the complainant's evidence. These were proper matters for the jury and there is no reason to suppose that they did not consider them.
Ground 38 - the jury was influenced by the constant news of the Royal Commission into Child Abuse in Church and in institutions[25]
53 The applicant refers to a passage of cross-examination by defence counsel in which it was put that a witness was influenced by media publicity about child sexual abuse. There is no rational basis for concluding the jury decided the matter other than in accordance with the evidence in this case, and the very clear directions of the judge that they must proceed on that basis.
Ground 39 - the learned trial judge wrongly used the word 'touching' and created prejudice against the accused[26]
54 The applicant refers to that portion of the trial judge's charge in which she dealt with the alleged admissions by the application in a phone call to the complainant's mother. The trial judge did no more than remind the jury of the evidence in the trial. There is nothing arguable in this point.
Ground 40 - the learned trial judge made a false direction to the jury that the prosecution relied on the complainant's two VAREs[27]
55 This submission is premised upon a misreading of the transcript. There was no misdirection.
56 The application for extension of time should be refused. Although some explanation has been given for the long delay, the grounds proposed have no reasonable prospect of success.
58 The order of the Court will be that the application for extension of time in which to appeal against conviction is refused.
[1] (Unreported, Court of Criminal Appeal, Gowans, Lush and Crockett JJ, 2 May 1975).
[2] [1979] VicRp 1; [1979] VR 1, 5.
[3] [2013] VSCA 87 [16]-[18] (citations in original).
[4] See _R v O'K_eefe [1979] VicRp 1; (1979) VR 1, 4; R v Darby (Unreported, Supreme Court of Victoria, 2 May 1975).
[5] R v Davis [2003] VSCA 173; (2003) 6 VR 538; DPP v Hayden [2006] VSCA 152; R v Croft [2008] VSCA 61.
[6] R v Davis [2003] VSCA 173; (2003) 6 VR 538, 539 [6] (Winneke ACJ); R v Croft [2008] VSCA 61, [21] (Kellam JA).
[7] Proposed grounds 1 and 2 of appeal are as follows:
Mr SOO ROI finished at 1.34 a.m. on 8/8/12 but the police station registrar has gone home and did not authorize the 2 charge sheets therefore they lack authority and are invalid.
[8] Proposed grounds 3 and 6 of appeal are as follows (particulars omitted):
[9] Response to Applicant's Extension of Time Application and Written Case, [19] (citations omitted).
[10] Proposed grounds 4 and 29 of appeal are as follows (particulars omitted):
[11] Response to Applicant's Extension of Time Application and Written Case, [20] (citations omitted).
[12] Proposed ground 5 of appeal is as follows (particulars omitted):
[13] Proposed grounds 7, 8, 10, 24, 25, 30 and 34 of appeal are as follows (particulars omitted):
So the prosecutor cleverly devise a plan using emotion and sympathy to steer the jury mind away from SH and to concentrate on the girl 1st VARE 7/8/12 (2 days old) and as such cause a substantial miscarriage of justice.
(See point 12 on did not lead a single evidence that it happen "after church").
This amount to a substantial miscarriage of justice.
The prosecutor used a lot of emotional and sympathy arguments to get his way with the jury BUT most of his arguments turn out to be FALSE with regard to "truth" and "admission" in his closing address. The prosecutor got caught up with his persuasion to the jury THAT he forgot to refer to any REAL evidence (See discussion 28/10/13 pg 12 line 21) causing a substantial miscarriage of justice AS the jury's verdict cannot be supported by the evidence.
[14] Proposed grounds of appeal 9, 12, 13, 14, 15, 16, 17, 18, 19 and 21 are as follows (particulars omitted):
It is impossible for the accused to commit all 6 charges ON TOP of the girl main activities above within the ½ hour "after church" actual time slot.
Even the prosecutor agrees there is insufficient time to commit all 6 charges when Hong left the TV room to change in her bedroom "before church".
Point 16 missing element is critical to defence case to find accused not guilty and thus amounts to a substantial miscarriage of justice to the accused.
[15] Proposed grounds 11 and 20 of appeal are as follows (particulars omitted):
The jury foreman only called to re-visit the girl 1st VARE and Mr Soo ROI. The jury by listening to the prosecutor AND not following the judge direction amounts to a substantial miscarriage of justice.
[16] Proposed ground 22 of appeal is as follows (particulars omitted):
[17] Proposed ground 23 of appeal is as follows:
[18] Proposed grounds 26, 27 and 28 of appeal are as follows (particulars omitted):
[19] Proposed ground 31 of appeal is as follows (particulars omitted):
[20] Proposed ground 32 of appeal is as follows (particulars omitted):
[21] Proposed ground 33 of appeal is as follows (particulars omitted):
[22] Proposed ground 35 of appeal is as follows (particulars omitted):
[23] Proposed ground 36 of appeal is as follows (particulars omitted):
[24] Proposed ground 37 of appeal is as follows (particulars omitted):
[25] Proposed ground 38 of appeal is as follows (particulars omitted):
[26] Proposed ground 39 of appeal is as follows (particulars omitted):
[27] Proposed ground 40 of appeal is as follows (particulars omitted):
Soo
The Queen [2015] VSCA 84
(2003) 6 VR 538