Regina v Django O'Hara [2005] NSWCCA 97

New South Wales Court of Criminal Appeal

CITATION: Regina v Django O'Hara [2005] NSWCCA 97

HEARING DATE(S): 18 March 2005

JUDGMENT DATE: 18 March 2005

JUDGMENT OF: Barr J at 1, 27; Bell J at 25; Hall J at 26

DECISION: Application for an extension of time within which to bring an application for leave to appeal refused.

PARTIES: Regina, Django O'Hara

FILE NUMBER(S): CCA 60201/02

M Thangaraj COUNSEL: D Woodburne

Michael Croke & Co SOLICITORS: SE O'Connor

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70067/95

LOWER COURT JUDICIAL OFFICER: Sully J

IN THE COURT OF CRIMINAL APPEAL 2002/2441

BARR J BELL J HALL J

18 MARCH 2005 REGINA v DJANGO O'HARA Judgment 1 BARR J: On 5 March 1995 the applicant, Django O'Hara, shot and killed a security guard during an attempted robbery at a house at Roseville. He pleaded guilty of murder and was sentenced on 11 December 1996 to penal servitude for twelve years and ten months, comprising a minimum term of eight years and ten months and an additional term of four years. Since he had already spent about one year and two months in custody exclusively for the offence for which he was sentenced, the applicant's sentence effectively comprised a minimum term of ten years and an additional term of four years. The sentencing judge, Sully J, fixed the minimum term to expire on 30 March 2006 and the applicant thereby acquired an eligibility for release to parole on that day. 2 As the Criminal Appeal Rules then stood, the applicant had twenty-eight days from the date of imposition of sentence within which to seek leave to appeal against the sentence. On 12 April 2002 he filed a notice applying for leave to appeal against the sentence and a notice applying for an extension of time within which to seek that leave. The grounds of the application for leave to appeal were apparently written by the applicant himself and are not easily understood, but they included an assertion that the sentence was severe. The accompanying notice of application for an extension of time was in the form prescribed by the Rules, which provided for reasons to be given why the notice seeking leave to appeal had not been given within twenty-eight days of the sentence. No reasons were given. 3 There are sound economic reasons why this Court routinely considers simultaneously applications for leave to appeal against sentences and, if the Court grants leave, the appeals themselves. That approach also commonly extends to the simultaneous consideration of applications for extensions of time within which to seek leave to appeal against sentences or to appeal against convictions. Parties often reasonably assume, where delay is not gross and proper reasons are offered to explain it, that the need for an extension of time will probably not be a matter of much consequence in the determination of the appeal. 4 It is otherwise, however, where there has been gross delay. The parties to such cases ought not readily to assume that the Court will regard as formal or of no great moment applications for extensions of time. The matter was put thus by Nagle CJ at CL and Yeldham J in R v Lawrence [1980] 1 NSWLR 122 at 148. I have omitted the footnotes. I do not understand the position to have changed since their Honours' remarks. On many occasions, it has been observed by the Courts of Criminal Appeal that intending appellants should not assume that delays in filing notices of appeal or applications for leave to appeal, and especially considerable delays, will automatically be excused: see, for example, R v Sutherland; R v Tyrell and R v Waterhouse. This Court takes the opportunity to emphasize again that it should not be assumed that a failure to give notice of appeal, or notice of intention to appeal, or to furnish proper grounds of appeal within time will be excused. Certainly, where any considerable delay has occurred, exceptional circumstances will be required before the appeal is permitted to proceed. This was the view expressed by Street CJ in R v Sutherland, and we think it is a proper view.