Citation: Nektario Zafiratos v R [2016] NSWCCA 152
Court: Court of Criminal Appeal, NSW
Date: 3 August 2016
Judges: Hoeben CJ at CL, RA Hulme J, N Adams J
Background
The applicant pleaded guilty on 8 August 2013 in the District Court to 18 counts of fraud contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). He subsequently sought to reverse 11 of those pleas, arguing that he had not been taking his prescribed lithium medication at the time and that his legal representatives had led him to believe a conditional plea offer existed: that the Director of Public Prosecutions would drop a sexual assault allegation if he pleaded guilty to the fraud charges.
District Court Judge Tupman DCJ heard that application over five days before refusing it on 26 February 2015. Her Honour found that, whatever impression the applicant's former barrister may have formed about a conditional offer, it played no part in the applicant's actual decision to plead guilty.
The applicant filed an initial notice of application for leave to appeal that decision but abandoned it in October 2015. By July 2016, with lengthy sentencing proceedings almost complete in the District Court, he filed a second notice of application for leave to appeal, now more than a year out of time. The Court of Criminal Appeal convened on 22 July 2016 to determine solely whether an extension of time should be granted.
Legal Issues
- Whether the applicant should be granted an extension of time to seek leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW) against an interlocutory order refusing him leave to withdraw guilty pleas
- Whether there was a satisfactory explanation for the delay of more than a year, including the earlier abandonment of an identical application
- Whether refusing an extension of time would result in a miscarriage of justice, having regard to the proposed ground of appeal
Decision
Under Clause 5B of the Criminal Appeal Rules, an applicant seeking leave to appeal an interlocutory order must file within 14 days of the order. The application here was over a year late, and where a prior application has already been abandoned, the Court confirmed that it will not extend time unless refusing to do so would cause a miscarriage of justice, applying Morgan v R (No 2) [2013] NSWCCA 80.
N Adams J (with whom both Hoeben CJ at CL and Hulme J agreed) found no satisfactory explanation for the delay. The applicant's contention that new material had emerged from the disputed facts hearing during sentencing did not adequately explain why he had abandoned his first application and waited so long before refiling. The procedural history demonstrated that the delays were attributable to the applicant's own forensic choices at each stage of the proceedings.
On the merits question, the Court examined the sole ground of appeal advanced: that Tupman DCJ should have found that an improper conditional plea offer was made and that this drove the applicant's guilty pleas. Tupman DCJ had expressly found it unnecessary to resolve whether any such offer was made, because the evidence established that the alleged offer played no role in the applicant's decision to plead guilty. Because that finding disposed of the application before her Honour, the proposed ground of appeal could not demonstrate any miscarriage of justice from a refusal to extend time.
The Court also noted that matters personal to the applicant, including his history of prior abuse and conditions of incarceration, remained available to be raised in the sentencing proceedings and could be the subject of a subsequent appeal against conviction or sentence through the ordinary appeal process.
Orders Made
- The application for an extension of time to seek leave to appeal against the order of Tupman DCJ of 26 February 2015 was refused.
Key Takeaways
- Where an applicant has already abandoned a leave-to-appeal application, the Court of Criminal Appeal will not extend time to bring a fresh application unless refusing to do so would cause a miscarriage of justice, consistent with Morgan v R (No 2).
- A proposed ground of appeal that attacks a finding the trial judge expressly declined to make, and which was unnecessary to the outcome below, is unlikely to establish the miscarriage of justice required to justify a late extension of time.
- Delay attributed to an applicant's own successive procedural choices carries significant weight against granting an extension, particularly where those choices included voluntarily abandoning an earlier equivalent application.
- Under s 5F(3) of the Criminal Appeal Act 1912, appeals against interlocutory orders such as refusals to permit withdrawal of guilty pleas require leave, and the 14-day timeframe in Clause 5B of the Criminal Appeal Rules is treated seriously by the Court of Criminal Appeal.
- Refusing an extension of time on an interlocutory appeal does not extinguish all avenues: the Court noted that a conviction and sentence, once finalised, can themselves be the subject of a separate appeal.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 117, 192E(1)(b)
- Criminal Appeal Act 1912 (NSW), s 5F(3)
- Criminal Appeal Rules, Cl 5B
Cases
- Morgan v R (No 2) [2013] NSWCCA 80
- R v KCH (2001) 124 A Crim R 233