SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: / Vojneski v The QueenCitation: / [2015] ACTCA 44
Hearing Date: / 15 July 2015; 14, 25 August 2015
Decision Date: / 31 August 2015
Before: / Penfold J
Decision: / Leave is granted to the applicant to appeal out of time against his conviction for murder, and for that purpose to amend the notice of appeal against sentence filed on 12 November 2014, including by adding proposed grounds of appeal (f) and (g) as set out at [37] below.
Category: / Interlocutory application
Catchwords: / CRIMINAL LAW – APPEAL AND NEW TRIAL – leave to appeal conviction out of time – explanation for delay – prejudice to Crown – merits of proposed appeal – whether reasonable probability of miscarriage of justice if leave refused.
EVIDENCE – Admissibility and Relevance – tendency evidence – capacity of evidence to prove tendency – probative value of tendency evidence to prove fact in issue – fact in issue was appellant’s presence at murder – failure to identify probative value of evidence in relation to accused’s presence – evidence otherwise highly prejudicial.
Legislation Cited: / Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5
Criminal Appeal Act 1912 (NSW), s6(1)
Evidence (Miscellaneous Proceedings) Act 1991 (ACT), s 43A
Evidence Act 1995 (NSW), ss101, 137
Income Tax Assessment Act 1936 (Cth)
Supreme Court Act 1933 (ACT), ss 37J, 37O, 37O(2)(a)(i), 37O(2)(a)(ii), 37O(2)(a)(iii), 37O(3)
Cases Cited: / CW v The Queen [2010] VSCA 288
Dupas v The Queen (2012) 40 VR 182
Filippou v The Queen [2015] HCA 29
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Merrilees v The Queen [2014] ACTCA 10
Mraz v R (No 1) (1955) 93 CLR 493
O’Keefe v R; R v O’Keefe [2009] NSWCCA 121
Parker v The Queen [2002] FCAFC 133
R v Cittadini (2008) 189ACrimR 492
R v Costa [2015] ACTSC 63
R v Ellis (2003) 58 NSWLR 700
R v Shamouil (2006) 66 NSWLR 228
R v Aleksander Vojneski [2014] ACTSC 66
Saoud v R (2014) 87 NSWLR 481
The Queen v Meyboom (2012) 256 FLR 450Velkoski v The Queen [2014] VSCA 121
Parties: / Aleksander Vojneski (Appellant)The Queen (Respondent)
Representation: / Counsel
Mr S Gill (Appellant)
Mr S Drumgold (Respondent)
Solicitors
Darryl Perkins Solicitors (Appellant)
ACT Director of Public Prosecutions (Respondent)
File Number: / ACTCA 20 of 2015
Decision under appeal: / Court: ACT Supreme Court
Before: Burns J
Date of Decision: 11 November 2014
Case Title: R v Vojneski
Citation: R v Vojneski (No 4) [2014] ACTSC 307
Introduction
1. On 3 September 2014, Aleksander Vojneski was found guilty by a jury of the murder of Paula Conlon on 27 March 2012.
2. On 11 November 2014, he was sentenced to life imprisonment.
3. No notice of appeal against the finding of guilt was filed, but Mr Vojneski filed a notice of appeal against his sentence on 12 November 2014.
The application
4. On 7 May 2015, Mr Vojneski, by new solicitors, filed an application for leave to appeal out of time against his conviction. That leave was granted by the Registrar on 2 June 2015. The Director of Public Prosecutions (DPP) has appealed against that grant of leave.
5. The appeal from the Registrar’s decision is an appeal de novo, and may be determined by a single judge of the Court of Appeal (Supreme Court Act 1933 (ACT), s 37J). Mr Vojneski has provided a draft amended notice of appeal, which shows the addition of two appeal grounds relating to the conviction appeal, both referring to the tendency evidence admitted in Mr Vojneski’s trial.
6. Affidavits were filed on behalf of Mr Vojneski about the reasons for delay in appealing the conviction.
7. On the application, the DPP filed a substantial affidavit affirmed by Emilija Beljic detailing, among other things, the circumstances said to show that a grant of leave to appeal would significantly prejudice the Crown.
Leave to appeal out of time from a conviction
General principles
8. The grant of leave to appeal out of time from a conviction was considered by Refshauge J in The Queen v Meyboom (2012) 256 FLR 450 (Meyboom) and again in Merrilees v The Queen [2014] ACTCA 10. His Honour relied on the approach of the Full Court of the Federal Court in Parker v The Queen [2002] FCAFC 133 (Parker), as follows:
6 In the civil jurisdiction, Wilcox J discussed at some length the matters which, in his opinion, were deserving of consideration when considering an application for leave to extend the time within which to file a notice of appeal: see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The matters which attracted his Honour's attention were set out at 348-349:
1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time;
2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
4. however, the mere absence of prejudice is not enough to justify the grant of an extension; and
5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
7 There is no reason why these matters or guidelines, even though they were composed with respect to an application in a civil matter, should not also apply (and several authorities have decided that they do apply) in the criminal jurisdiction, save that where the liberty of the individual is at stake, the Court may be a little more lenient to an applicant in the exercise of its discretion.
...
17 What the Court will look for, above all else, in an application to extend the time within which to file a notice of appeal against a conviction which has led to a term of imprisonment, is satisfaction that there has not been, and will not be, a miscarriage of justice if leave is refused. This was emphasised by Nagle CJ at CL and Yeldham J in R v Lawrence [1980] 1 NSWLR 122 at 165-166 when they said:
"In these circumstances, we think the appropriate course is to refuse the applicants the extension of time which they seek, having regard to the delays and the failure to comply with orders of this Court to which we have earlier referred. But, before doing so, we have satisfied ourselves that no injustice has been caused to the applicants, and that no miscarriage of justice has occurred."
...
19 There will always be an onus on the applicant to explain the reasons for the delay - and the question of prejudice to the Crown cannot be overlooked. However, these and like matters cannot prevail if the Court is of the opinion that there is a reasonable probability that there might be a miscarriage of justice if leave is not granted.
Application in criminal matters
9. The principles found in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley) were set down in the context of an application for an extension of time within which an application could be made under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of a decision under the Income Tax Assessment Act 1936 (Cth). In Parker, the Full Court concluded at [7] that there was no reason why such principles should not also apply in the criminal jurisdiction:
save that where the liberty of the individual is at stake, the Court may be a little more lenient to an applicant in the exercise of its discretion.
Threshold test
10. The Full Court went on to add what appears to be a further qualification on the principles it had adopted from the civil jurisdiction, saying at [19] that the inadequacy of the explanation for the delay, any prejudice to the Crown, and any similar matters:
cannot prevail if the Court is of the opinion that there is a reasonable probability that there might be a miscarriage of justice if leave is not granted.
11. In Mraz v R (No 1) (1955) 93 CLR 493 (Mraz) (quoted at [34] below), the High Court said that on a criminal appeal as such, it is for the Crown to make it clear that there is no real possibility that justice has miscarried. The Full Court in Parker did not explicitly address the question of which party to an application for leave to appeal out of time carries the burden of satisfying the court about any miscarriage of justice, nor the nature of the burden carried. The Full Court’s formulation (“if the Court is of the opinion that there is a reasonable probability” of a miscarriage) might be read as suggesting that the applicant is required to establish that matter, but only on the balance of probabilities. As well, the reference to “a miscarriage of justice” seems to set a lower threshold than the “proviso” applicable to criminal appeals in the Supreme Court, to the effect that an appeal must be dismissed (at [35] and [36] below) if the court considers that there has been no substantial miscarriage of justice, a matter which as noted must be established by the Crown.
12. This reading, however, seems to conflict with another formulation, relied on by Refshauge J Meyboom, that requires consideration of the prospects of success on appeal. If an assessment of prospects includes an assessment of the likely application of the proviso, then the test seems to differ from that articulated in Parker.
13. In the absence of authority, I am inclined to the view that the test for the granting of leave may appropriately set a lower threshold (being a “simple” miscarriage of justice), leaving the question of whether there has been a substantial miscarriage of justice to be determined by the Court of Appeal, constituted by three judges and with the capacity to obtain a more detailed knowledge of the trial as a whole than can be obtained in the context of dealing with a leave application.
Nature of prejudice
14. There is a further complication in the adoption of the Hunter Valley principles by the Full Court in Parker. Principle 3 in the Full Court’s summary refers to “any prejudice to the respondent in defending the proceedings”, but in Hunter Valley, the court referred to “any prejudice to the respondent including any prejudice in defending the proceedings” (emphasis added).
15. Prejudice in defending the proceedings is likely to be relatively less significant in the context of conviction appeals, where the more significant prejudice is likely to be suffered not in responding to the appeal but in attempting to conduct any new trial that might be ordered on a successful appeal. Of course, there is an argument that this prejudice should not outweigh the applicant’s claim to have his or her appeal heard, given that a new trial would only be ordered if the appeal court concludes that there has been a substantial miscarriage of justice (Supreme Court Act s37O(3)).
16. Furthermore, the re-opening of criminal matters after the expiry of legislated appeal periods may have other “prejudicial” impacts, in particular the impact on victims and their family members as well as on witnesses more generally. Such people will suffer even if the appeal is ultimately unsuccessful and there is no new trial, and will suffer for a longer period and perhaps more intensely if a new trial is ordered. In some cases that suffering may consist only of a further period of feeling unsettled, but in other cases people may be seriously traumatised, including by the re-opening of a matter that they believed they could put behind them. These considerations, among others, underlie what the Crown identified as the “principle of finality”.
17. These are all matters that must be seriously considered. Whether “prejudice” arising from distress to those involved in the matter could outweigh the need to ensure that accused people receive fair trials is a more difficult question, especially given that such prejudice does not seem to be a consideration in the hearing of an appeal as such.
18. On the other hand, there may be a place for a consideration of prejudice in some cases, given that the probability of a miscarriage of justice is not a pre-requisite for a grant of leave but a barrier to a refusal of leave.
19. The court in Parker did not consider the question of prejudice to the Crown in any depth, focusing instead on the merits of the proposed appeal and concluding that there had been no miscarriage of justice in the applicant’s trial and that the applicant had been unable to demonstrate any prospects of success on the proposed appeal.
Summary
20. I conclude that the principles adopted by the Full Court, expanded in the light of the above comments, require the consideration of the following matters on an application for leave to appeal out of time:
(a) Whether there is an acceptable explanation for the delay in filing a notice of appeal and, where applicable, in filing the application for leave to appeal out of time, and whether the explanation is sufficient to justify by-passing the legislated time-limits, having regard among other things to the applicant’s actions otherwise than in relation to the attempt to file an appeal.