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[2025] NSWCCA 105
Court of Criminal Appeal (NSW)
2025-07-14
Garling J, Wright J, Yehia J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: ZBJ v R [2025] NSWCCA 105
Hearing dates: 16 June 2025
Date of orders: 14 July 2025
Decision date: 14 July 2025
Before: Garling J;
Wright J;
Yehia J
Decision: (1) Pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), the applicant has leave to make his appeal and his application for leave to appeal in this matter out of time.
(2) The applicant’s appeal, application for leave to appeal and his release application are listed before the Registrar on 24 July 2025 at 9:00am.
Catchwords: CRIME – appeals – appeal and application for leave to appeal – notice of appeal filed out of time – where a proposed ground of appeal raises a constitutional issue so as to attract the operation of s 78B of the Judiciary Act 1903 (Cth) – prior to leave being granted to make appeal or application for leave to appeal no “cause pending” – whether appropriate to deal with application for extension of time for appeal before hearing the substantive appeal where s 78B notices would be required – appropriate to hear application for leave to make the appeal out of time before hearing the appeal
CRIME – appeals – appeal and application for leave to appeal – notice of appeal filed out of time – release application under s 49 of the Bail Act 2013 (NSW) – proposed conviction and sentence appeal – no “proceedings…pending” before the Court – no jurisdiction to hear application before leave to appeal out of time granted – appropriate to hear application for leave to make the appeal out of time before hearing the release application
CRIME – appeals – appeal and application for leave to appeal – notice of appeal filed out of time – where there is satisfactory explanation for delay – where proposed grounds of appeal sufficiently arguable – no relevant prejudice to proposed respondent if leave to appeal granted – where leave to appeal is in the interests of justice – application to make appeal and leave for appeal out of time granted
Legislation Cited: Commonwealth Constitution, s 80
Bail Act 2013 (NSW), ss 4, 48, 49, 59, 61
Crimes Act 1900 (NSW), s 66EA
Criminal Appeal Act 1912 (NSW), s 10
Interpretation Act 1987 (NSW), s 12
Judiciary Act 1903 (Cth), ss 2, 78B
Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr, 3.1, 3.5
Cases Cited: AK v R [2025] NSWCCA 74
Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; [2006] HCA 44
Gould v R [2023] NSWCCA 103; 308 A Crim R 14
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24
Morton (a pseudonym) v The King [2025] SASCA 29 R v CAZ [2012] 1 Qd R 440; [2011] QCA 231
Category: Procedural rulings
Parties: ZBJ (Applicant)
Rex (Respondent)
Representation: Applicant (self-represented)
Counsel:
B Costello (Respondent)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2019/00371978
Publication restriction: The statutory non-publication provisions under section15A of the Children (Criminal Proceedings) Act 1987 and section 578A of the Crimes Act 1900 apply. On 27 May 2021 the District Court made an order prohibiting publication of any matter which identifies the applicant that may lead to the identification of the victim.
The background to this application can be summarised as follows. The applicant was charged with one count of maintaining, between 1 January 2007 and 17 May 2008, an unlawful sexual relationship with a child under the age of 16 years, contrary to s 66EA of the Crimes Act 1900 (NSW). He pleaded not guilty to this charge.
A trial before Culver DCJ and a jury took place between 1 and 23 February 2022. The jury returned a verdict of guilty on 23 February 2022.
Sentence proceedings were heard on 6 May and 22 July 2022.
On 4 November 2022, Culver DCJ sentenced the applicant to imprisonment for 18 years, commencing on 23 February 2022 and expiring on 22 February 2040, with a non-parole period of 11 years expiring on 22 February 2033.
A notice of intention to appeal was filed on 25 November 2022 but that notice ceased to have effect after 25 November 2023 by virtue of r 3.1(3) of the Criminal Appeal Rules. [1]
Thereafter what occurred is confused. It is not easy to ascertain when documents were filed from the material in the form presented to the Court by way of the Application Book (AB). What follows is derived from the court file and the documents filed according to the Court’s electronic filing and recording system, JusticeLink, as well as the Application Book and the parties’ submissions.
On 4 December 2024, approximately one year and one week after the notice of intention to appeal ceased to have effect, the applicant filed:
a notice of appeal together with annexures A and B, all dated 3 December 2024. Annexure B was an “Application for Leave to File a Notice of Appeal after Expiry of the Filing Period” under r 3.5(5), as required by r 3.5(1)(b) of the Criminal Appeal Rules, since the notice of appeal was filed after the applicable periods for filing in r 3.5(2)(a) and (b) of the Criminal Appeal Rules had expired. In annexure B, the reason why the notice of appeal was filed out of time was said to be:
“The appellant’s legal representatives did not order the summing-up in time, which had caused delay in preparing appeal documents.”
a 92 page document headed “Appellant Submissions” which included information required under par 18 of Practice Note SC CCA 1, identification of the grounds of appeal in relation to both the conviction and sentence appeals, written submissions on each ground and a list of attachments A to AE together with copies of those attachments; and
an affidavit of the applicant dated 31 October 2024 explaining some of the difficulties with legal representatives which the applicant said caused the delay in filing the notice of appeal.
On 12 December 2024, the applicant’s notice of appeal and application for leave under r 3.5(5) were listed before the Registrar and orders were made for the filing of amended grounds of appeal, amended written submissions and affidavit evidence as to the new evidence and incompetence of counsel grounds and the proceedings were listed for further callover on 6 February 2025.
What occurred on 12 December 2024 may have been what caused the applicant’s understanding which he explained to the Court during oral submissions as follows: [2]
“I submitted the first version in December, but I had to re-submit it because of a technicality. I included new evidence attached to the notice of appeal, but it has to be attached to a separate affidavit of mine in relation to new evidence. So I had to re-do it. And everyone went on leave in December and January and I re-filed the appeal as soon as I could, and it was done from gaol.”
On 22 January 2025, the applicant filed a 75 page document headed “Appellant Submissions” which included the information required under par 18 of Practice Note SC CCA 1, identification of the grounds of appeal in relation to both the conviction and sentence appeals, written submissions on each ground and a list of attachments A to AC. This appeared to be similar too but not the same as the 92 page document with the same title filed on 4 December 2024.
It can be noted at this point that the Crown’s written submissions included the contentions that the applicant’s notice of appeal was dated 17 January 2025 and was filed on 22 January 2025. [3] In light of what is set out above, it is not clear what is the basis for these contentions. Furthermore, the first document in the index to the AB is described as “Notice of Appeal” and the relevant date is said to be “17/01/25” but the actual document in the AB is a notice of appeal dated 3 December 2024 together with annexure B (but not annexure A) also dated 3 December 2024. [4] These pages are the same as the relevant corresponding pages of the notice of appeal (including both annexures A and B) which is stamped as having been filed on 4 December 2024 and annotated as having a next listing date of 12 December 2024.
Between 6 February 2025 and 12 June 2025, there were numerous listings for callover before the Registrar at which orders for the preparation of the matter were made. The matter was originally listed for hearing on 16 May 2025 but eventually the matter was listed for hearing on 16 June 2025.
On 19 February 2025, the applicant filed a release application under the Bail Act 2013 (NSW) together with proposed bail conditions and submissions. The applicant explained his understanding of what occurred as follows:
“Originally, my appeal hearing was scheduled for the 16th of May, but the Registrar gave me an option to replace it with bail hearing instead and postpone the appeal hearing. He gave me two weeks to consider this option. After two weeks, I accepted it. A week later, I was called and told that my bail hearing could not happen because my appeal had been filed out of date and thus there was no jurisdiction for the Court to hear my bail application. I was given references to 5 court cases … and two weeks to consider them. I could not obtain these cases in the two weeks: the jail just would not give them to me, though I am entitled to 5 cases per week for free, by their rules. So, I could not prepare my arguments in two weeks and my bail hearing was cancelled. …”.
“Conviction appeal
1. Defence counsel incompetence caused substantial miscarriage of justice
- New evidence prevents miscarriage of justice
3. The expert witness gave inadmissible evidence that mislead and confused the jury causing substantial miscarriage of justice
4A. The Crown prosecutor confused the jury and caused substantial miscarriage of justice by exaggerating the significance of Dr Pulman's evidence
4B. The Crown prosecutor failed to comply with rules of disclosure thus causing miscarriage of justice
4C. The Crown prosecutor caused substantial miscarriage of justice by making numerous improper submissions
4D. The Crown prosecutor caused miscarriage of justice by leading the jury to making improper inferences
4E. The Crown prosecutor caused serious forensic disadvantage by late serving of Dr Pulman's evidence
4F. The Crown prosecutor caused substantial miscarriage of justice by failing to present the whole of relevant evidence
4G. The Crown prosecutor caused substantial miscarriage of justice by persistently relying on evidence of low or absent probative value
4H. The Crown prosecutor's manner of cross-examination disadvantaged the applicant and caused substantial miscarriage of justice
4I. The Crown prosecutor caused substantial miscarriage of justice by making inflammatory comments
5. The jury was confused and mislead by inadmissible evidence presented to them as "context" and "tendency" evidence, and that caused miscarriage of justice
6. Unreasonable verdict: the evidence does not support the verdict
7. The jury did not have a chance to assess the reliability of JK evidence, and that caused substantial miscarriage of justice
8. Fundamental error: the trial judge refused to admit critical relevant evidence
9. A strong bias of the trial judge caused substantial miscarriage of justice
10. Five complaint witnesses gave inadmissible evidence that affected the jury and caused substantial miscarriage of justice
11A. Fundamental error: the Crown prosecutor made a false representation in his closing address in relation to observing the complainant from under the water
11B. Fundamental error: the trial judge made a number of false representations in her summing-up in relation to improper touching during massages
11C. Fundamental error: the Crown prosecutor made a false representation in his closing address in relation to the Hite report
11D. Fundamental error: the trial judge made a false representation in her summing-up in relation to the Hite report
11E. Fundamental error: the Crown prosecutor misstated the evidence multiple times in his closing address
- S 66[EA] of the Crimes Act is unconstitutional
Sentencing appeal
1. Counsel incompetence caused miscarriage of justice
2. The sentencing judge improperly based the sentence on the number and frequency of illegal acts
3. The defence were not given sufficient time to prepare, causing significant forensic disadvantage
4. The given sentence is manifestly excessive
5. The sentencing judge failed to take into account circumstances of this particular case
6. No objections were made to the VIS by the defence counsel
7. The Crown prosecutor breached his duty of fairness
8. The Crown prosecutor caused substantial miscarriage of justice by failing to present the whole evidence”.
By a notice of motion dated 23 April 2025 provided by email but not apparently filed, the applicant separately sought an extension of time in which to file his notice of appeal.
On 24 April 2025, the Registrar refused the application for an extension of time.
On 1 May 2025, the applicant filed a handwritten document dated 27 April 2025. That document contained his “consolidated submissions in support of [his] motions to extend time to appeal and provide a valid copy of the trial transcript, and applications to review [the Registrar’s] decisions under rule 6.1 of the Supreme Court (Criminal Appeal) Rules 2021”, together with attachments A to E.
On 23 May 2025, the application to review the Registrar’s decisions was considered by Harrison CJ at CL on the papers. His Honour was of the view that the issue of whether to grant the extension of time should be decided at the hearing of the appeal. Consequently, the Chief Judge concluded that there was no basis to make an order that differed from that of the Registrar. His Honour’s reasons were published: AK v R [2025] NSWCCA 74.
On 2 June 2025, the applicant filed a handwritten document described as a replacement for the affidavit of 31 October 2024, which had been filed on 4 December 2024. This later document was sometimes referred to as the 30 May affidavit and was accompanied by attachments A to F.
The hearing of the application for leave to appeal out of time, the release application under s 49 of the Bail Act and, if leave were granted, the appeal and the application for leave to appeal came before the Court as presently constituted on 16 June 2025.
There were two initial issues arising out of the proposed appeal which caused us to deal with the application for leave to appeal out of time separately from, and before the hearing of, the appeal and application for leave to appeal if leave to commence out of time were granted. They were:
the fact that proposed ground of appeal 12 effectively raised the issue of whether s 66EA of the Crimes Act was invalid by virtue of Chapter III of the Commonwealth Constitution; and
the fact that the applicant wished to make a release application under s 49 of the Bail Act.
“… s 66EA makes it unnecessary to prove beyond reasonable doubt all charged acts. Effectively, it is enough to prove only two of them to convict the accused of all of them. This means that it is not necessary to try the accused on every charged act. This deprives him of his right to a trial by jury guaranteed by the Constitution. …”.
While this ground as formulated and explained in submissions may lack force, it must be borne in mind that the applicant is not legally trained and is representing himself.
Section 66EA relevantly provides:
“66EA Persistent sexual abuse of a child
(1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.
Maximum penalty—Imprisonment for life.
(2) An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.
…
(4) In proceedings for an offence under this section, the prosecution—
(a) is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence, and
(b) is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.
(5) In order for the accused to be convicted of an offence under this section—
(a) the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, and
(b) the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, and
(c) the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.
(6) In proceedings for an offence under this section, the judge must inform the jury of the requirements of subsection (5).
…
(9) A person who has been convicted or acquitted of an unlawful sexual act in relation to a child cannot be convicted of an offence under this section in relation to the same child if the unlawful sexual act of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship.
(10) A person who has been convicted or acquitted of an offence under this section for having an unlawful sexual relationship with a child cannot be convicted of an unlawful sexual act in relation to the same child if the occasion on which the unlawful sexual act is alleged to have occurred is during the period over which the unlawful sexual relationship was alleged to have existed. This subsection does not prevent an alternative verdict under subsection (13).
(11) A person who has been convicted or acquitted of a predecessor offence in relation to a child cannot be convicted of an offence under this section of having an unlawful sexual relationship with the same child if the period of the alleged unlawful sexual relationship includes any part of the period during which the person was alleged to have committed the predecessor offence.
(12) For the purposes of subsections (9)–(11), a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside.
(13) If on the trial of a person charged with an offence under this section the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of the commission of the offence under this section, committed an unlawful sexual act, the jury may acquit the person of the offence charged and find the person guilty of that unlawful sexual act. The person is liable to punishment accordingly.
(14) Proceedings for an offence under this section may only be instituted by or with the approval of the Director of Public Prosecutions.
(15) In this section—
adult means a person who is of or above the age of 18 years.
child means a person who is under the age of 16 years.
predecessor offence means this section before its substitution by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018.
relevant amendments means the substitution of this section by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018.
unlawful sexual act means any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), any of the following offences—
(a) an offence under section 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66F or 80A,
(b) an offence under a provision of this Act set out in Column 1 of Schedule 1A,
(c) an offence of attempting to commit an offence referred to in paragraph (a) or (b),
(d) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)–(c),
(e) an offence under the law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraphs (a)–(d).”
“State legislation which denied to a State court in which federal jurisdiction was vested the power to order the prosecution to supply to the defendant particulars of an offence charged against State legislation which were necessary to fulfil the requirements of procedural fairness of a trial in that court would be constitutionally invalid. Such legislation would require the court to conduct a trial which was ‘repugnant to the judicial process in a fundamental degree.’ It would so distort the ‘institutional integrity’ of the court that it ‘no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies.’” (footnotes omitted)
‘”The appellant argued that a direction to the jury (in conformity with s 229B(3)) that all jurors must be satisfied beyond reasonable doubt of one or more unlawful sexual acts, but (in conformity with s 229B(4)(c)) not necessarily of the same acts, is inconsistent with the conventional directions that the prosecution must prove each element of the offence beyond reasonable doubt before it may convict and that the jury’s verdict in respect of each offence must be unanimous. There is no such conflict. The jurors could be unanimously satisfied that the defendant maintained an unlawful sexual relationship with the child involving more than one unlawful sexual act whilst at the same time disagreeing about which two or more of numerous alleged unlawful sexual acts were proved beyond reasonable doubt.”
While it might well be the case that this Court would reach the conclusion that s 66EA of the Crimes Act was not unconstitutional for reasons similar to those of the Courts in Morton and CA**Z, it does not appear to us that this Court should decide that ground 12 is so lacking in merit that the ground should be, in effect, dismissed without further argument. In other words, ground 12 should be accepted as sufficiently raising the issue of the constitutionality of s 66EA so that full argument on that ground should be permitted, perhaps with the assistance of an amicus curiae in relation to the arguments in favour of concluding that the provision is constitutionally invalid.
If, however, the constitutional validity of s 66EA is to be determined, s 78B of the Judiciary Act 1903 (Cth) becomes relevant. The most pertinent provisions of s 78B are as follows:
“(1) Where a cause pending … in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys‑General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys‑General, of the question of intervention in the proceedings or removal of the cause to the High Court.
(2) For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:
(a) may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;
(b) may direct a party to give notice in accordance with that subsection; and
(c) may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.
…
(5) Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.”
“Cause” is defined in s 2 of the Judiciary Act as including “criminal proceedings”. An appeal against conviction and an application for leave to appeal against either conviction or sentence or both are criminal proceedings.
The appeal or application for leave to appeal based on ground 12, once properly instituted, will be criminal proceedings that involve a matter arising under the Constitution or involving its interpretation, as explained above.
The question then arises whether there is “a cause pending” in this Court before leave to appeal out of time under r 3.5(5) of the Criminal Appeal Rules has been granted. Rule 3.5(5) states:
“If a notice of appeal is filed after the expiry of the applicable period for filing, the appeal or application for leave to appeal to which the notice relates may be made only with the leave of the Court.”
“10 Method and time for making appeal
(1) The following provisions apply to an appeal, or application for leave to appeal, under this Act against a person’s conviction or sentence—
…
(c) The appeal, or application for leave to appeal, is to be made in accordance with the rules of court …
…
(2) For the purposes of any other Act or statutory instrument (whether enacted or made before or after the commencement of this subsection)—
…
(b) an appeal against a conviction or sentence is taken to be pending in the court if notice of intention to appeal or apply for leave to appeal has been duly given to the court (unless the appeal or application has not been made within any time it is required to be made by the rules of court).”
By virtue of s 12 of the Interpretation Act 1987 (NSW), the words “any other Act” in the chapeau to s 10(2) of the Criminal Appeal Act are to be taken as a reference to any other Act in and of New South Wales. Nonetheless, this does not preclude the words “a cause pending … in a court of a State” in s 78B of the Judiciary Act being construed as not including an appeal or application for leave to appeal that has not yet been “made” because leave under r 3.5(5) has not been granted*.*
If and when leave is granted under r 3.5(5), however, the fact that the applicant relies on ground 12 means that there will be pending proceedings which attract the operation of s 78B of the Judiciary Act.
Consequently, if leave is granted under r 3.5(5), it will then be the duty of the Court not to proceed unless and until the requisite notices have been given in accordance with that section and a reasonable time has elapsed for consideration by the Attorneys-General. Thus, in light of ground 12 and the requirements of s 78B, the hearing of the appeal and application for leave to appeal could not be dealt with at the same time as the hearing of the application for leave under r 3.5(5).
It did not appear to us that it was practical or appropriate to deal with the grounds of appeal that did not involve a matter arising under the Constitution or involving its interpretation separately from the constitutional ground. This was not least because s 78B itself provides that the Court’s duty is “not to proceed in the cause” unless and until the notices have been given and the Attorneys-General have had a reasonable time to consider the notices.
“(1) A person accused of an offence may apply to a court … for bail for the offence to be granted ….
(2) An application under this section is a release application.
(3) A court … may, after hearing the release application—
…
(b) grant bail (with or without the imposition of bail conditions), or
(c) refuse bail.
…”.
Under s 4(1) of the Bail Act, a “person accused of an offence” is relevantly defined as including “a person who has been … convicted of an offence” or “a person in respect of whom proceedings on an appeal against conviction or sentence for the offence are pending”. Thus, the applicant is a person accused of an offence for the purposes of s 49(1) and entitled to make a release application.
This Court’s power to hear and determine a bail application is limited by s 48(2) and (3) of the Bail Act which include:
“(2) A bail application can be made to, and heard by, a court … only if the court … has power to hear the application.
(3) A court … has power to hear a bail application in the circumstances specified in Part 6.”
“61 Power to hear bail application if proceedings are pending in court
A court may hear a bail application for an offence if proceedings for the offence are pending in the court.”
The other section in Pt 6 which concerns powers specific to the Court of Criminal Appeal is s 67 but none of the circumstances mentioned in that section is relevant in the present case.
Consequently, the only power of this Court to hear the release application in the present case arises under s 61 and depends on there being “proceedings for the offence” that are "pending in the court". The meaning of these phrases is governed by s 5 and s 59 of the Bail Act. In addition, s 10(2) of the Criminal Appeal Act, which has been quoted above, is relevant to when proceedings are pending in this Court.
In s 5(1), “proceedings for an offence” is defined to include “proceedings on an appeal against conviction or sentence”. Furthermore, s 5(3) provides that:
“(3) Proceedings for an offence are substantive unless the proceedings are—
(a) proceedings relating to bail, or
(b) proceedings on an appeal against any interlocutory judgment or order given in proceedings, or
(c) proceedings declared to be non-substantive by the regulations.”
“59 Meaning of pending proceedings
In this Part [6], a reference to proceedings for an offence pending in a court is a reference to substantive proceedings pending in the court.”
Under s 10(2) of the Criminal Appeal Act, “an appeal against a conviction or sentence is taken to be pending in the court if notice of intention to appeal or apply for leave to appeal has been duly given to the court (unless the appeal or application has not been made within any time it is required to be made by the rules of court).”
Since the notice of appeal was not filed within the applicable periods, as explained above, there is no appeal against conviction or sentence “pending” in this court, prior to leave being granted under r 3.5(5). It follows that this Court does not have power to hear and determine the applicant’s release application unless and until leave is granted under r 3.5(5). This reasoning is consistent with the approach taken by this Court in respect of applications for release on bail pending appeal where the notice of appeal was filed out of time both under the Criminal Appeal Rules and under the earlier Criminal Appeal Rules (1952 SI 2) (NSW): see for example Paul Crowhurst v R; Narelle Crowhurst v R [2025] NSWCCA 57 and Mashayekhi v R [2021] NSWCCA 55.
This was a further reason why we determined to deal with the question of leave under r 3.5(5) before dealing with the proposed appeal and application for leave to appeal and the release application.
The applicant identified the material on which he relied in relation to his application for leave to make the appeal and application for leave to appeal out of time under r 3.5(5) as follows:
the handwritten document dated 1 April 2025 and filed on 3 April 2025 which set out the applicant’s “finalised grounds of appeal”;
the handwritten document dated 27 April 2025 and filed on 1 May 2025 which contained the applicant’s “consolidated submissions in support of [his] motions to extend time to appeal” and included attachments A to E;
the handwritten document filed on 2 June 2025, described as a replacement for the affidavit of 31 October 2024, also referred to as the affidavit of 30 May 2025, and which was accompanied by attachments A to F.
The Crown relied principally on those parts of its written submissions, dated and filed on 2 June 2025, which related to the applicant’s application for leave to make the appeal and application for leave to appeal out of time.
The applicant submitted that there were essentially two grounds on which the application for leave under r 3.5(5) should be granted.
The first ground was to the effect that the applicant was given “wrong advice” by his legal advisers in November 2023 when he was informed that there were two options: (a) to file his notice of appeal, before the notice of intention to appeal ceased to have effect, which included “what you want to say yourself mashed together with what the barristers have completed to date” and then seek to amend the notice of appeal later; or (b) “seek leave from the court and file [the notice of appeal and grounds] out of time” when counsel was in a position to do so. The applicant was informed that option (b) was the “preferable course of action”. The applicant also said that “[a]n option to apply for an extension of the deadline was not even mentioned.”
The second ground was that, for reasons beyond the applicant’s control, he had to retain a number of barristers and none of them delivered what he considered were “acceptable results” and this caused significant delay.
In summary it was said that there was no time lost due to his negligence, inaction or wrongful actions. Rather, the applicant submitted he was let down by legal practitioners as outlined in the document filed on 2 June 2025 and in the attachments A to F to that document.
In these circumstances the applicant submitted that it would be fair to extend the time to appeal until “the end of February 2025” considering that he took over the case at the end of August 2024 and he had to file the appeal from gaol.
The Crown submitted that the applicant’s evidence established that a significant part of the delay in relation to the applicant’s appeal was effectively due to him disagreeing with the legal advice that he received. Nonetheless, it was accepted by the Crown that if any ground had sufficient merit, an extension of time would be appropriate to allow the Court to consider that ground.
Under r 3.5(5) of the Criminal Appeal Rules, the Court has a wide discretion to grant leave to make an appeal or an application for leave to appeal out of time. Whether leave should be granted depends fundamentally on what the interests of justice require in all the circumstances of the particular case: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [30] (French CJ, Hayne, Bell and Keane JJ); Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 (McHugh J). As McHugh J explained in Gallo, the grant of an extension of time should not be seen as automatic and the object of the power to extend in effect the “applicable period” conferred by r 3.5(5) of the Criminal Appeal Rules is to be understood as being to ensure that the applicable periods fixed by r 3.5(2)(a) and (b) do not become an instrument of injustice. These authorities also establish that, while it is impossible to foresee all of the circumstances which may bear upon the determination of whether an extension of time should be granted, relevant considerations as to what the interests of justice require include:
whether there is a satisfactory explanation for the delay;
the prospects of success of the appeal if an extension is granted;
whether there is any prejudice to the other party caused by the failure to comply with the relevant time limit; and
whether there is any adverse effect on the victim, or on the community generally, occasioned by effectively re-opening a concluded criminal proceeding.
The relevant period of delay in the present case was the one year and eight days between the notice of intention to appeal ceasing to have effect on 25 November 2023 and the filing of the notice of appeal and other documentation on 4 December 2024. What relevantly occurred can be summarised as follows.
After the applicant was sentenced, his then solicitors were aware that he wished to appeal against both conviction and sentence but did not order the summing up until March 2023 and thus preparation of the conviction appeal was significantly delayed.
Junior counsel originally retained in relation to the appeal could not continue because of problems and his involvement came to an end in March or April 2023.
Replacement junior counsel did little to advance the appeal prior to his departure from the case and his departure was notified to the applicant’s solicitors on about 14 November 2023.
By about 17 November 2023, senior counsel retained in relation to the appeal had found another suitable junior counsel to assist but also advised that it would be impossible to meet the tight deadline, which we understand referred to the notice of intention to appeal ceasing to have effect on 25 November 2023, because of the voluminous material required to be considered.
“We do not recommend filing ‘submissions’ that are an unpolished amalgam of your insights into appealable errors mixed with the incomplete work of [senior and junior counsel]. This is a highly technical legal exercise, and [senior counsel] is vastly experienced in this.
What this means is that the process of filing the appeal is going to take longer. Based on the instructions you have given us, the preferable course of action is to give [senior counsel] and his new junior sufficient time to review all the materials you want considered for inclusion in the appeal. Whilst this will result in seeking to file the appeal out of time, this course, given the other option, is inevitable because of the amount of new material you have provided us.”
It appears that the applicant decided to proceed on the basis of counsel’s preferable course of action.
On 2 April 2024, counsel provided a memorandum of advice in relation to the appeal. A number of the applicant’s concerns and potential grounds of appeal were addressed. Without attempting to summarise the contents of that memorandum in detail, it is sufficient to note that counsel were of the opinion that further documentation and investigation would be required if certain grounds of appeal were to be reasonably arguable. In addition, for reasons set out in the memorandum, counsel said that they were of the view “that it could be reasonably argued that the Crown’s conduct [in cross examining the applicant and in the closing address] led to a miscarriage of justice.” Accordingly, counsel were not of the view that there would be no reasonably arguable grounds of appeal in relation to conviction available to the applicant.
On 18 May 2024, senior and junior counsel wrote a supplementary letter in which they concluded that there were two grounds of appeal against conviction and potentially one further ground that they would propose to rely on in any appeal. They referred to the notice of intention to appeal having ceased to have effect on 25 November 2023 and advised that the notice of appeal and written submissions in support should be filed as soon as possible.
On 25 June 2024, the applicant’s solicitors wrote to him enclosing the letter of 18 May 2024 and other material. In that letter, the solicitors noted the applicant’s concerns about various matters and stated that unless they received certain responses by 5 July 2024, they would be withdrawing from the matter. The applicant apparently refused to accept the approach referred to in that letter.
On 17 July 2024, the applicant complained to the Legal Services Commissioner and others concerning the solicitors’ and counsel’s handing of his matter.
On 29 August 2024, the applicant’s solicitors, who by that stage had ceased to act for him, provided the applicant’s complete file electronically to new solicitors, although those solicitors do not appear to have been instructed to act for the applicant in relation to his appeal against conviction and sentence. We infer that the electronic file was provided to the applicant in gaol some time after 29 August 2024 and he was given a computer which allowed him to access the electronic file while in custody.
During the three months between the beginning of September 2024 and 4 December 2024 while in gaol, the applicant prepared a notice of appeal and other documents and arranged for them to be filed on 4 December 2024. While this delay may have been the result of the applicant not being willing to accept the advice of his legal representatives, he was not obliged to accept that advice. Taking three months to prepare and arrange for the filing of his documentation while in custody is not a circumstance which bespeaks a significant lack of diligence on the part of the applicant. The grounds of appeal identified in that documentation appear to include a number of grounds not considered, or considered in detail, by counsel in their memorandum of 2 April 2024 and their letter of 18 May 2024 as well as grounds which they considered reasonably arguable. The three months was not an inordinately long time to take in all the circumstances.
“… It will not always be possible or practicable, however, to go further in order to test how strong the remaining arguable grounds are, especially where, as in the present case, there are some 16 draft grounds. Further, the nature and extent of the review required by M v The Queen and Pell v The Queen (Pell) in order to determine whether a conviction by a jury was unreasonable does not readily lend itself to such an assessment even on a “reasonably impressionistic level”. And, of course, the task of assessing the merits of such grounds in the context of an extension application will be all the more problematic where an underlying trial has run over many weeks, …” (Footnotes omitted)
In the present case, we have already indicated that ground 12, the constitutional ground, should not be put to one side as “not even arguable”. In addition, a number of grounds which were considered by counsel who previously advised the applicant to be reasonably arguable are included in the grounds upon which the applicant now seeks to rely. We agree that they are reasonably arguable.
Furthermore, there is an unreasonable verdict ground and a manifest excess ground as well as other grounds raising more specific complaints in relation to conviction and sentence. Reviewing such grounds at a "reasonably impressionistic level" and “in a fairly rough and ready way” to the extent that that is possible, we were not satisfied that they were so unarguable that the applicant should be denied the opportunity to argue those grounds if leave is granted in respect of other grounds that we are satisfied are reasonably arguable.
In all the circumstances, there are grounds with sufficient prospects of success that it would be unjust if the applicant were denied the opportunity to have his appeal and application for leave to appeal heard.
There was not said to be any relevant prejudice to the Crown if the applicant were granted leave to make his appeal and application for leave to appeal out of time. Nor was there said to be any adverse effect on the victim, or on the community generally, which would be occasioned by leave being granted. The absence of such factors that weigh in favour of refusing leave was, as we understood it, one of the reasons why the Crown’s position was that if any ground had sufficient merit, an extension of time would be appropriate to allow the Court to consider that ground. We did not discern any significant such prejudice or adverse effect if leave were to be granted.
For these reasons, we have concluded that, in the particular circumstances of this case, the interests of justice require that the applicant have leave, under r 3.5(5) of the Criminal Appeal Rules, to make his appeal and application for leave to appeal out of time.
In addition to granting leave under r 3.5(5), it will be appropriate to list the matter before the Registrar to obtain a date for hearing of the applicant’s appeal and application for leave to appeal and his release application.
Accordingly, the orders of the Court are:
Pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), the applicant has leave to make his appeal and his application for leave to appeal in this matter out of time.
The applicant’s appeal, application for leave to appeal and his release application are listed before the Registrar on 24 July 2025 at 9:00am.
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Rule 3.1(3) provides that a notice of intention to appeal “has effect for a period of 12 months after the day it is filed”. Accordingly, the 12 month period commenced in this case on 26 November 2022, the day after the notice of intention to appeal was filed.
Tcpt 16 June 2025, p 6(1)-(6).
Crown’s written submissions filed on 2 June 2025, pars 6, 9(b) and 192.
AB pp 3 and 5.
Pseudonym amended.
Pseudonym amended.
ZBJ
R [2025] NSWCCA 105
(2006) 228 CLR 45
(1996) 189 CLR 51
(2014) 252 CLR 601
(1990) 64 ALJR 458
On 17 November 2023, the applicant’s solicitors advised in a letter to the applicant that they could either: (a) file what the applicant “wanted to say [him]self mashed together with what the barristers have completed to date , and then seek permission to amend later”; or (b) “seek leave from the court and file out of time when [senior counsel] is in a position to do so”. It was noted that senior counsel thought that option (b) was the preferable course of action. The solicitors’ letter continued:
In our view, the applicant has provided an explanation for the delay in filing the notice of appeal and other documentation which is sufficient to justify the conclusion that leave to make the appeal and application for leave to appeal out of time should not be refused on the basis that there is no satisfactory explanation for the delay.
In considering the prospects of success, the Court is required to review the merits of the proposed grounds of appeal but need only do so, where possible, on a "reasonably impressionistic level" or “in a fairly rough and ready way”. This is not only relevant to determining whether insisting on compliance with the applicable periods would work an injustice. It is also done, at least in part, to ensure that, reviewed in that way, proposed grounds of appeal that are not even arguable may be put to one side: Gould v R [2023] NSWCCA 103; 308 A Crim R 14 at [75]-[76] (Bell CJ with Rothman and Garling JJ agreeing). The further comments of the Chief Justice in Gould at [76] in this regard are also applicable in the present case. In that paragraph, his Honour continued: