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Court of Criminal Appeal 10 December 2013

Golossian v R

[2013] NSWCCA 311

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION APPLICATION FOR EXTENSION OF TIME UNSATISFACTORY EXPLANATION FOR DELAY APPEAL AGAINST CONVICTION WHETHER GUILTY VERDICT OPEN TO JURY

Citation: Golossian v R [2013] NSWCCA 311
Court: NSW Court of Criminal Appeal
Date: 10 December 2013
Judges: Leeming JA (principal judgment); Johnson J; RS Hulme AJ

Background

The applicant was convicted by a jury in December 2010 of 24 sexual offences following a 50-day trial in the District Court. He was sentenced to an aggregate term of 20 years with a non-parole period of 15 years. The offences involved two complainants and were alleged to have occurred between 2001 and 2008.

The trial arose from highly unusual facts. The applicant was known in the Greek community as a "holy man" with the power to break black magic (known as "mayia"). Both complainants alleged he sexually assaulted them during prayer sessions purportedly conducted to remove curses. Two co-accused, a husband and wife, were tried alongside the applicant on related charges.

The applicant did not file a Notice of Appeal within time. He eventually sought an extension of time, bringing four grounds of appeal: that the guilty verdicts were unreasonable or unsupported by the evidence (in relation to each complainant separately), that the trial judge wrongly refused to recall a complainant late in the trial, and that the summing-up was unfair and unbalanced.

  • Whether the applicant should be granted a substantial extension of time to appeal against his conviction, given the lengthy and largely unexplained delay
  • Whether the guilty verdicts were unreasonable or could not be supported by the evidence
  • Whether the trial judge erred in refusing to recall a complainant late in the trial to give evidence about answering machine messages
  • Whether the trial judge's summing-up was unfair or unbalanced
  • Whether leave should be granted on a fifth proposed ground raised for the first time on the second day of the hearing

Decision

Extension of time. Leeming JA (with whom Johnson J and RS Hulme AJ agreed) treated the proceeding throughout as an application for leave to extend time, not as a straightforward appeal. The delay was substantial, running from the expiry of the Notice of Intention to Appeal in early 2012 until the application was eventually brought. The explanation offered by the applicant's legal representatives, including delay in payment of fees, the need to travel to a correctional facility, and the volume of material, was found to be only a partial explanation. An additional complication was the bifurcation of the appellate process: a co-accused's appeal had already been heard and determined, creating a risk of inconsistent outcomes. That prejudice, however, was a consequence of the applicant's own delay rather than a factor in his favour.

Verdicts and summing-up. On the substantive grounds relating to the reasonableness of the verdicts and the balance of the summing-up, the Court found none of the proposed grounds had any substantial prospect of success. The trial judge's summing-up was examined in the context of a factually complex trial involving culturally specific beliefs and conduct that the jury was directed to approach without moral judgment. The Court found no basis for concluding the verdicts were unreasonable or that the summing-up was unfairly weighted against the applicant.

Recall of complainant. The trial judge's refusal to recall a complainant late in the trial to give evidence about answering machine messages was also considered. The Court found the applicant had not established error in that ruling. Relevant to this finding was that the evidence before the Court did not adequately explain why the ground had not been properly prepared or why the applicant's former senior counsel had not cross-examined on the topic in the ordinary course.

Fifth proposed ground. The Court refused leave to raise a new ground introduced on the second day of the hearing. The proposed ground raised questions of fact, had not been raised at trial, would have required an adjournment, and had not been foreshadowed in advance despite the applicant's submissions having been filed months earlier. The Court noted that applications to raise new grounds at the last moment are treated with particular caution where the matter itself is only an application for leave to appeal, not an appeal as of right.

Orders Made

  • Extension of time to appeal against conviction refused on all proposed grounds.

Key Takeaways

  • In refusing the extension of time, the Court of Criminal Appeal applied the established principle that an application for extension of time is not equivalent to a substantive appeal: the applicant bore the burden of demonstrating cause to extend time, and a lengthy, largely unexplained delay weighs heavily against a grant of leave.
  • Bifurcation of the criminal appellate process, where co-accused appeals are heard separately due to one party's delay, can constitute a form of prejudice relevant to an extension of time application, but the Court found it did not assist an applicant who had himself caused that bifurcation.
  • A proposed new ground of appeal introduced on the second day of a hearing faces a high bar, particularly where the applicant's own filed submissions suggested it could have been raised earlier and where the ground would have required an adjournment to properly resolve.
  • Where none of the proposed grounds of appeal has substantial prospects of success, that finding combines with unexplained delay to justify refusing a leave extension altogether.
  • The requirements of the Criminal Appeal Rules regarding the raising of new grounds are not mere technicalities: the Court reaffirmed that compliance is expected and departure requires proper justification.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)

Cases
- FP v R [2012] NSWCCA 182
- AP v R [2013] NSWCCA 292
- Abdul v R [2013] NSWCCA 247
- Alpha v R [2013] NSWCCA 292
- BCM v The Queen [2013] HCA 48
- Libke v The Queen [2007] HCA 30; 230 CLR 559
- M v The Queen (1994) 181 CLR 487
- Domican v The Queen (1992) 173 CLR 555
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Grey v The Queen [2001] HCA 65; 75 ALJR 1708
- Bailey v Director of Public Prosecutions [1988] HCA 19; 78 ALR 116
- R v Germakian [2007] NSWCCA 373; 70 NSWLR 467
- R v Inamata (2003) 137 A Crim R 510
- Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424
- Gilham v R [2012] NSWCCA 131
- Etchell v R [2010] NSWCCA 262
- Edwards v R [2009] NSWCCA 199
- Ngo v R [2013] NSWCCA 142
- R v Courtney-Smith (1990) 48 A Crim R 49
- R v Livingstone [2004] NSWCCA 407