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Court of Criminal Appeal 5 April 2012

Jang v Regina

[2012] NSWCCA 55

Homicide
CRIMINAL LAW APPLICATION REFUSED

Citation: Jang v Regina [2012] NSWCCA 55
Court: Court of Criminal Appeal, NSW
Date: 5 April 2012
Judge(s): Beazley JA (at [1]), Harrison J (at [20]), McCallum J (at [21])

Background

The applicant pleaded guilty in October 1999 to two counts of murder arising from the deaths of his wife and her adult daughter. Bell J sentenced him in December 1999 to concurrent terms of 24 years imprisonment, each with a non-parole period of 18 years. The applicant had been represented by counsel at both the plea and the sentence hearing.

In October 2011, nearly 12 years after sentence was imposed, the applicant filed an application for leave to appeal against the severity of his sentence. The applicable time limit required a notice of intention to apply for leave to be filed within 28 days of sentencing.

The applicant, who appeared for himself with the assistance of an interpreter, argued that investigating police had fabricated or exaggerated evidence, that witness statements were false, and that the sentence was therefore excessive. The Crown opposed any extension of time, contending there was no adequate explanation for the delay and that the proposed grounds lacked merit.

  • Whether the Court should exercise its discretion under s 10(1)(b) of the Criminal Appeal Act 1912 to extend the time for filing a notice of intention to apply for leave to appeal, where the application was approximately 12 years out of time.
  • Whether the proposed grounds of appeal against sentence had any prospect of success.

Decision

Beazley JA (with Harrison and McCallum JJ agreeing) identified the applicable legal principle: where there has been a significant delay, exceptional circumstances must be established before an extension of time will be granted. This principle reflects the public interest in finality of litigation and the avoidance of delay, which applies equally to sentencing appeals.

The applicant offered two explanations for the delay: that he only had access to his criminal records approximately two years before filing (around 2009), and that his complete lack of English contributed to the lengthy delay. Beazley JA found neither explanation adequate. There was no account of why it took 10 years for the applicant to review his records, and no explanation for the further two-year gap between reviewing those records and filing the application.

On the substance of the proposed appeal grounds, Beazley JA examined each of the five complaints in turn. The applicant's suggestion that the coronial report contradicted the key eyewitness account was rejected. The autopsy findings, which recorded multiple stab wounds to the neck, chest, abdomen, and back of both victims, were found to be consistent with the eyewitness evidence rather than the applicant's own account. The remaining complaints either had no factual foundation in the records (the sentencing judge had expressly noted the applicant's surrender to police) or were repetitive of other grounds already addressed.

Beazley JA concluded there was absolutely no prospect the applicant would succeed on any appeal against sentence. On both the delay and the merits, the application was refused.

Orders Made

  • Leave to extend time in which to file a notice of intention to appeal: refused.
  • Notice of intention to appeal: dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a significant delay in filing a notice of intention to appeal requires the applicant to demonstrate exceptional circumstances before an extension of time will be granted.
  • Public interest in the finality of criminal proceedings applies to sentencing appeals, not merely to civil litigation or conviction appeals.
  • An unexplained 10-year delay in reviewing one's own criminal records, followed by a further two-year gap before filing, did not constitute an adequate explanation for a 12-year delay.
  • Where proposed appeal grounds lack any realistic prospect of success, that finding independently supports a refusal to extend time, in addition to any finding about the adequacy of the delay explanation.
  • Autopsy evidence recording multiple serious wounds across several body regions was treated as corroborating eyewitness testimony, and as inconsistent with an applicant's account that attributed most injuries to the victims' own conduct.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 10(1)(a) and (b)
- Criminal Appeal Rules (NSW), cls 3A(1)(b) and 3B(1)(a)

Cases
- R v Lawrence (1980) 1 NSWLR 122
- Edwards v R [2009] NSWCCA 199