WO v R [2011] NSWCCA 232

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: WO v R [2011] NSWCCA 232 Hearing dates: 7 October 2011 Decision date: 07 October 2011 Before: Allsop P at 1 Rothman J at 19 Barr AJ at 20 Decision: Refuse application to extend further the time to file a notice of appeal. Catchwords: PROCEDURE - criminal - extension of time - appeal against conviction - no reasonable prospects of success Legislation Cited: Arja v R [2010] NSWCCA 190 R v Gregory [2002] NSWCCA 199 R v Lawrence [1980] 1 NSWLR 122 Cases Cited: Arja v R [2010] NSWCCA 190 R v Gregory [2002] NSWCCA 199 R v Lawrence [1980] 1 NSWLR 122 Category: Procedural and other rulings Parties: WO (Applicant) Regina (Respondent) Representation: In person (Applicant) Ms S Bowers (Respondent) In person (Applicant) Director of Public Prosecutions (Respondent) File Number(s): 2006/108080 Publication restriction: Non-publication order made in relation to the name of the applicant Decision under appeal Jurisdiction: 9101 Date of Decision: 2008-05-16 00:00:00 Before: Boulton ADCJ File Number(s): 2006/10808

Judgment 1ALLSOP P : This is an application for an extension of time in which to file a notice of appeal against conviction and, if leave be granted, an appeal. We have heard the applicant fully, that is both upon the application to extend time and the appeal, should time be extended. 2The applicant was convicted on 24 May 2007 and sentenced on 16 May 2008 in respect of a number of charges the subject of the appeal. The charges related to sexual offences against his stepdaughter. 3An undated notice of intention to appeal against conviction and sentence was filed in the registry of the Court of Criminal Appeal on 28 May 2008. In December 2008 an extension of time for the notice of intention to appeal was granted, expiring on 9 January 2009. An application for a further extension of time was filed on or about 1 June 2011. 4The written material filed and handed up today gave no explanation of the delay from the expiry of the first extension of time until June this year. The applicant, however, gave oral evidence today that the delay was due to his inability, through those helping him, to find a particular witness who only responded to an advertisement placed in a newspaper by the applicant's wife in December 2010. The date of the statutory declaration of the particular witness is 25 January 2011. 5As was evident from the applicant's answers in cross-examination on this evidence, the witness apparently had resided at the same address for over 20 years, being a neighbour of the applicant for a period of time before the trial. The applicant also said that he has spent years in prison thinking how he could show that his conviction was wrongful, by, in particular, demonstrating that the complainant lied on oath at the trial. 6At the trial not only did the complainant give evidence but so did the applicant. His evidence was directed to his innocence and was in conflict directly with that of the complainant. The result of the trial can only reflect that the jury disbelieved the applicant. The applicant had also asserted at the trial that the police and another stepdaughter gave false evidence. 7The applicant has provided submissions and material which has been marked. Only some of the material is by way of submission, but the Court was of a view that the totality of the material should be placed on the record. 8The material, as the Crown submissions and summary of the trial demonstrate, and as a reading of it demonstrates, takes issue with a significant body of detail of evidence led at the trial, in particular with alleged inconsistencies and inaccuracies in the evidence led by the Crown and in particular that of the complainant. 9One particular aspect of the matter of these inconsistencies and inaccuracies concerns what I will call the "walking of the dogs". The applicant has focused significant effort on demonstrating an asserted error regarding count 2 by revealing that the complainant's evidence about greyhounds or dogs, in the plural, must be wrong. This was so because it was said by the applicant that he only had one adult greyhound to walk and that he did not walk it. 10An understanding of the significance of this can be gleaned from the submissions and the material before the Court. Briefly, however, one offence, count 2, was said to have taken place near an oval while the applicant and the complainant were walking the applicant's dogs. This was the evidence of the complainant. The asserted falsity is demonstrated, the applicant says, by the fact that he had one adult dog and that he never walked it. 11The person who has come forward and sworn a statutory declaration is response to the advertising says in that document that the applicant and his wife had one race dog and a pup, and that to the best of his knowledge the eldest daughter or the son would walk the dog. This person, the neighbour, cannot recall, as said in the statutory declaration, seeing the applicant walk the dog. 12As I have said, the other written material minutely dissects aspects of the evidence given in a series of assertions of its falsity insofar as it was either incriminating or inconsistent. 13It should be noted that the trial judge gave clear express directions as to the evidence of the complainant, including upon the inconsistencies that had been pointed out in it by counsel for the defence and also by the Crown. Having examined the directions in this respect, there does not appear to be any error, and none is otherwise asserted. 14The so-called fresh evidence is from a witness who was available at the time of the trial. Its content is not to any degree cogent as to exculpation. At the most it goes to a matter of detail that does not go to the substance of the allegations or the likely credit of the complainant. The evidence does not prove that the applicant could not have walked the dog with the complainant on that day. Whether there was one dog or were two dogs is a matter of detail separate from the substance of the allegations. 15In the light of the evidence as to where the witness lived, there is no satisfactory explanation, in my view, for the delay from the expiry of the first extension of time to June 2011. 16As to extension of time reference can be made to R v Gregory [2002] NSWCCA 199, R v Lawrence [1980] 1 NSWLR 122 and Arja v R [2010] NSWCCA 190. It suffices to say that if material had been brought forward that gave a reasonable prospect of success on appeal, the court would always be loath in the interests of justice to shut out an offender from pursuing an appeal, even though late. Of course, circumstances as to delay vary infinitely and each case must be assessed on its merits. 17Here, however, I am of the view that the material filed and upon which the applicant relies does not demonstrate any reasonable basis to think that the appeal would be other than hopeless. 18For these reasons, I would refuse the application to extend further the time to file a notice of appeal. 19ROTHMAN J : I agree with the President. 20BARR AJ : I also agree. 21ALLSOP P : The orders of the court are therefore that the application to extend further the time to file the notice of appeal be dismissed.