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Court of Criminal Appeal 18 October 2013

Winter v R

[2013] NSWCCA 231

Sexual offencesPublic order & justice offences
CRIMINAL LAW APPEAL APPLICATION FOR EXTENSION OF TIME WHERE DELAY OF MORE THAN SIX YEARS APPEAL INCOMPETENCE OF COUNSEL

Citation: Winter v R [2013] NSWCCA 231
Court: NSW Court of Criminal Appeal
Date: 18 October 2013
Judge(s): Hoeben CJ at CL, Bellew J, Barr AJ

Background

The applicant was convicted in the District Court in April 2006 on 27 counts of sexual offences against three complainants, following a jury trial before Judge Berman. He was sentenced to an overall term of 16 years imprisonment with a non-parole period of 12 years.

The applicant filed a notice of intention to appeal shortly after sentencing in August 2006 but did not file a formal notice of appeal until April 2013, almost seven years after his conviction. The delay was compounded by a protracted and largely unexplained process of seeking legal advice, changing representation, and periods of inactivity by his solicitor.

The applicant sought extensions of time to appeal against both conviction and sentence. His conviction grounds included allegations of incompetence by trial counsel and apprehended and actual bias by the trial judge. His sentence appeal contended that the overall sentence was manifestly excessive.

  • Whether an extension of time of almost seven years should be granted to appeal against conviction, given the significant and inadequately explained delay
  • Whether trial counsel's conduct amounted to legal incompetence sufficient to warrant a conviction appeal
  • Whether the trial judge demonstrated apprehended or actual bias
  • Whether the sentences imposed were manifestly excessive, including in circumstances where some offences had been repealed by the time of sentencing

Decision

Extension of time. The Court applied the principle of finality with considerable force. Bellew J found that the solicitor's affidavit failed to provide an adequate explanation for large portions of the delay. Periods of 16 months and 17 months passed with little or no substantive action, and early advice from counsel had specifically indicated there was no merit in a conviction appeal. The Court noted that a change in the law, even one that might lead to a conviction being quashed, is not of itself sufficient to justify departing from the principle of finality.

Incompetence of counsel. The Court heard evidence from the applicant's trial counsel, Mr Watts, whom Hoeben CJ at CL described as an impressive witness whose evidence was both truthful and reliable. The Court found no basis for the incompetence grounds. Counsel's decisions at trial were within the range of legitimate forensic choices, and the applicant failed to establish that any conduct fell below the standard required.

Bias grounds. The Court found the bias grounds entirely without merit and criticised the decision to raise and argue them. Bellew J stated that such serious grounds should only be pursued where there is a genuine factual or legal basis, which was absent here.

Manifest excess in sentence. The Court considered the sentences in light of the nature, number, and circumstances of the offences, including that coercion was achieved through manipulation rather than physical force. The sentencing judge had explicitly acknowledged the non-physical nature of the offending. The Court found no manifest excess and noted the limited utility of comparative sentencing exercises, consistent with guidance from both the Court of Criminal Appeal and the High Court.

Orders Made

  • Extension of time in which to file the notice of appeal against conviction: refused
  • Extension of time in which to file the notice of application for leave to appeal against sentence: refused

Key Takeaways

  • A delay of almost seven years in filing a criminal appeal will ordinarily be fatal to an extension of time application, particularly where the applicant's own legal representatives failed to take substantive steps for extended periods and early advice indicated no merit in the proposed grounds.
  • The principle of finality in criminal proceedings is firmly established: a change in the law, even one capable of affecting the outcome of a conviction, does not automatically constitute exceptional circumstances justifying a grant of extended time.
  • Allegations of trial counsel incompetence require a solid factual foundation; the Court of Criminal Appeal rejected the grounds here after accepting the evidence of trial counsel as credible and reliable.
  • Apprehended and actual bias are serious grounds that carry significant consequences if raised without foundation; the Court expressly criticised the decision to pursue these grounds in circumstances where no proper basis existed.
  • Comparative sentencing exercises carry limited weight in assessing manifest excess, a position the Court of Criminal Appeal reaffirmed by reference to both its own authority and the High Court's guidance in Hili v R; Jones v R (2010) 242 CLR 520.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes Amendment (Sexual Offences) Act 2003 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Director of Public Prosecutions Act 1986 (NSW)
- Evidence Act 1995 (NSW)

Cases
- RLS v R [2012] NSWCCA 236
- Montero v R [2013] NSWCCA 214
- R v Gregory [2002] NSWCCA 199
- Etchell v R [2010] NSWCCA 262; (2010) 205 A Crim R 138
- Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
- Han v R [2009] NSWCCA 300
- FB v R [2011] NSWCCA 217
- PFC v R [2011] NSWCCA 275
- Orkopoulos v R [2009] NSWCCA 213
- R v Beserick (1993) 66 A Crim R 419
- R v Birks (1990) 19 NSWLR 677
- R v Chittadini [2008] NSWCCA 256; 198 A Crim R 492
- Ignjatic v R (1993) 68 A Crim R 333
- R v Dinsdale (2000) 202 CLR 321
- R v Glennon (1992) 173 CLR 592