SUPREME COURT OF VICTORIA COURT OF APPEAL

S EAPCR 2020 0100

SCOTT MERCER (a pseudonym)1 Applicant v

THE QUEEN Respondent

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JUDGES: MAXWELL P, BEACH and T FORREST JJA WHERE HELD: MELBOURNE DATE OF HEARING: 20 April 2021 DATE OF JUDGMENT: 14 May 2021 MEDIUM NEUTRAL CITATION: [2021] VSCA 132 JUDGMENT APPEALED FROM: [2019] VCC 1193 (Judge Marich)

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CRIMINAL LAW – – Application for extension of time within which to file application for leave to appeal against conviction – False – Attempt to pervert the course of justice – Incriminating conduct – Whether prosecutor relied on of conduct as evidence of incriminating conduct – No reference to conduct being evidence of incriminating conduct by prosecutor in final address or in presence of – Whether, in light of prosecutor’s failure to refer to incriminating conduct in final address, judge erred in giving agreed directions about incriminating conduct – Whether conduct capable of being incriminating conduct – Whether use of conduct as incriminating conduct involved ‘bootstraps’ reasoning – Proposed ground of appeal not reasonably arguable – Inadequate explanation for delay – Application for extension of time within which to file application for leave to appeal refused – Jury Directions Act 2015, ss 12, 14, 15, 18, 19, 21 and 22.

CRIMINAL LAW – – Application for extension of time within which to file application for leave to appeal against sentence – False imprisonment, attempt to pervert the course of justice and persistent breach of family violence intervention order – TES of 5 years and 3 months, with NPP of 3 years and 9 months – Sentence of 3 years and 6 months for attempt to pervert course of justice – Whether sentences manifestly excessive – Manifest excess not reasonably arguable – Inadequate explanation for delay – Application for extension of time within which to file application for leave to appeal refused.

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1 In compliance with s 166 of the Family Violence Protection Act 2008, a pseudonym has been used so as to prevent the identification of a person the subject of an order made under that Act.

COURT OF APPEAL

459 Lonsdale Street, Melbourne, VIC 3000

APPEARANCES: Counsel Solicitors

For the Applicant Mr J O’Connor Condello Lawyers

For the Respondent Mr J C J McWilliams Ms A Hogan, Solicitor for Public Prosecutions

COURT OF APPEAL

459 Lonsdale Street, Melbourne, VIC 3000

MAXWELL P BEACH JA T FORREST JA:

1 On 14 May 2019, the applicant pleaded guilty to one charge of persistently contravening a family violence intervention order.2 On 21 May 2019, following a , he was convicted of one charge of false imprisonment and one charge of attempting to pervert the course of justice.3 On 30 July 2019, he was sentenced as follows:

Charge on Offence Maximum Sentence Cumulation Indictment H13269464.1

2 False imprisonment 10 years 3 years and Base 6 months

5 Attempt to pervert the 25 years 3 years and 18 months course of justice 6 months

Charge on Offence Maximum Sentence Cumulation Indictment H13269464.2

1 Persistent contravention 5 years 12 months 3 months of a family violence intervention order

Total effective sentence 5 years and 3 months’ imprisonment Non- period 3 years and 9 months’ imprisonment

2 On 19 May 2020, the applicant filed applications for extensions of time for the filing of an application for leave to appeal against his conviction and an application for leave to appeal against his sentence. In each application, the applicant identified

a single proposed ground of appeal. In relation to conviction, the applicant’s proposed ground is:

1. A substantial occurred as a result of the learned sentencing judge:

(a) Determining that the phone calls the basis of charge 5 (attempt

2 Section 125A of the Family Violence Protection Act 2008. 3 Offences at common law.

Mercer v The Queen 1 THE COURT

to pervert the course of justice) were reasonably capable of being viewed by the jury as evidence of incriminating conduct; and

(b) Directing the jury that they could use those phone calls as evidence that the applicant believed he had committed charges 1 and 2 (false imprisonment).

In relation to sentence, the applicant’s proposed ground is that the sentence imposed on the charge of attempting to pervert the course of justice, the total effective sentence and the non-parole period are manifestly excessive.

Principles relating to extensions of time

3 The principles relating to applications for an extension of time within which to appeal against conviction and sentence are well known.4 As was said in Madafferi v The Queen:

The applicant carries the burden of persuading this Court that an extension of time should be granted. When considering the application, it must be acknowledged that time limits exist for sound reasons. Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition (consistently, of course, with the imperative of correcting substantial miscarriages of justice). The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal. Although the exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances of the case, the length of the delay — and the reasons for it — and the prospects of success should the extension be granted, are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise. Thus, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the court may incline towards granting an extension. Where the merits of the proposed appeal are very poor, however, even a satisfactory explanation for the delay might not justify an extension. The discretion must, as we have said, be exercised according to the individual facts of each case.5

4 As is disclosed by the authorities to which we have referred, the applications for an extension of time require consideration of the merits of the proposed appeals and the applicant’s reasons for not filing his applications for leave to appeal within

4 See Kentwell v The Queen (2014) 252 CLR 601, 613–4 [29]–[33]; Derwish v The Queen [2016] VSCA 72, [55]–[57]; Madafferi v The Queen [2017] VSCA 302, [11] (‘Madafferi’); Chen v The Queen [2017] VSCA 335, [22]–[23]. 5 Madafferi [2017] VSCA 302, [11].

Mercer v The Queen 2 THE COURT

the prescribed time. We will look first at the merits of the applicant’s proposed

appeals, before then turning to the applicant’s explanation for failing to seek leave to appeal within time.

The Crown case

5 The complainant and the applicant were in a de facto relationship. The Crown case was that they were both heavy users of illicit drugs. Not long into the relationship, the applicant’s behaviour towards the complainant became controlling

and emotionally abusive.

6 In the early hours of 26 November 2017, the applicant demanded that the complainant go with him to Crown Casino. The complainant told the applicant that she was exhausted and wanted to go to bed. Both she and the applicant had been using illicit drugs in the previous three days and had not slept. The applicant, however, insisted and they left for the casino at 6:00 am that morning, travelling in the applicant’s vehicle.

7 At trial, the applicant faced five charges: two charges of false imprisonment (charges 1 and 2); one charge of causing injury intentionally (charge 3), and an alternative charge of causing injury recklessly (charge 4); and one charge of attempting to pervert the course of justice (charge 5).

8 The false imprisonment charges related to different parts of the journey taken by the applicant and the complainant on the morning of 26 November 2017.

Charge 1 was alleged to have occurred after the applicant left the vehicle in the vicinity of G Woods Reserve on Governor Road, Mordialloc. The Crown case was that the applicant grabbed hold of the complainant and forced her back into his vehicle. Charge 2 was alleged to have occurred after the complainant left the vehicle for a second time in Governor Road, Braeside. The Crown alleged that the applicant again forced the complainant back into his vehicle and drove to an industrial area.

9 With respect to charge 3 (and the alternative charge 4), the Crown case was

Mercer v The Queen 3 THE COURT

that after the complainant returned to the vehicle for a second time, and the false

imprisonment the subject of charge 2 commenced, the applicant punched her in the nose and mouth area.

10 On 28 November 2017, the applicant was arrested and subsequently remanded in custody. On 6 December 2017, while in custody, he made multiple telephone calls to the complainant. During those calls, he told the complainant to tell police that she was not in her right state of mind and that she wished to drop the charges. He said he would pay for a lawyer to take a statutory declaration from her,

in which she was to state that she was not in her right mind when she made her statement and that she could not remember making the allegations against him. Additionally, he told the complainant not to talk on the phone about him assaulting

her, as the calls between them were being recorded. The Crown alleged that the applicant’s statements made in these calls constituted the offence of attempting to pervert the course of justice (charge 5).

The trial

11 Prior to trial, the prosecution filed a notice of incriminating conduct pursuant to s 19(1) of the Jury Directions Act 2015 (‘the Act’). The conduct that the prosecution proposed to rely upon as evidence of incriminating conduct was the applicant’s statements made in the telephone conversations with the complainant on 6 December 2017, to which we have already referred.

12 In argument prior to the empanelment of the jury, counsel for the applicant

told the judge that he did not think he could mount any challenge to the notice, and that the conduct was ‘admissible as incriminating conduct providing the jury is satisfied of the necessary aspects of it’.

13 Notwithstanding those concessions, and as a result of the prosecutor ‘flagging’ some reservations he had about the complainant’s willingness and capacity to give evidence favourable to the prosecution, the judge said that she

Mercer v The Queen 4 THE COURT

would postpone any ruling on whether the conduct identified in the notice could be

used as incriminating conduct until the close of the prosecution case.

14 At trial, the complainant gave evidence that was unfavourable to the prosecution case. Essentially, she recanted on statements previously made to police and gave evidence that the applicant had neither imprisoned nor assaulted her. On application by the prosecutor, the judge gave leave to cross-examine the complainant about prior inconsistent statements that she had made and in relation to her evidence on charges 1–4.

15 The Crown case on charge 1 relied upon the evidence of the complainant. With respect to charge 2, however, the prosecution called a number of witnesses who

observed the lead-up to the commencement of that charge (Steven Ford, Rebecca Codd, Maija Dimits, Sally Nitschke, Quinn Daley, Benjamin Watson and Amelia Kelly). In relation to charge 2, the prosecution also relied upon CCTV footage taken of the complainant at a service station shortly after the false imprisonment the subject of charge 2 concluded.

16 After the close of the prosecution case, the issue of incriminating conduct was revisited. In the course of argument, counsel for the applicant told the judge that the words relied upon by the prosecution in the phone calls on 6 December 2017 could be used as incriminating conduct in respect of charges 1–4, ‘if the jury were to accept that they’re not an encouragement to tell the truth’. That matter having been agreed, the judge was not required to rule on the incriminating conduct issue. Counsel for the applicant, however, submitted that, in addition to the direction required to be

given under s 21 of the Act, the judge should give the jury the direction referred to in s 22 of the Act.

17 The applicant did not give, or call, any evidence at trial. At the conclusion of the prosecution case, he made a no case submission. After hearing argument, the judge ruled that the applicant had no case to answer on charges 3 and 4.

18 After the judge ruled on the no case submission, there was further discussion

Mercer v The Queen 5 THE COURT

about the issue of incriminating conduct. Counsel for the applicant again accepted

that the telephone calls could be used as evidence of incriminating conduct, but said that some of what the complainant said in those conversations was relevant ‘in the sense that … some of the answers that he gives … stems from what she says’.

19 Later that day, the prosecutor addressed the jury. During the course of his address, he made no mention of incriminating conduct or the use that the jury might make of anything said by the applicant in the telephone conversations in relation to charges 1 and 2. At the conclusion of the prosecutor’s address, counsel for the

applicant addressed the jury. Like the prosecutor, counsel for the applicant said nothing about the issue of incriminating conduct.

20 At the conclusion of the applicant’s counsel’s address, the judge commenced her charge. Nothing was said between the judge and counsel about the prosecutor‘s failure to refer to the issue of incriminating conduct or the use the jury might make of the telephone conversations when considering charges 1 and 2. In the course of her charge, however, the judge directed the jury about incriminating conduct (as she

had said she would) in accordance with ss 21 and 22 of the Act. No issue was taken at trial by either counsel in relation to her Honour so doing, or to this part of her Honour’s charge.

Conviction

21 In order to understand the applicant’s proposed ground of appeal against

conviction, it is necessary to refer to the relevant provisions of the Act concerning

incriminating conduct.

Relevant provisions of the Act

22 The relevant provisions of the Act are contained in div 1 of pt 4 of the Act (ss 18 to 24). The expression ‘incriminating conduct’ is defined in s 18 to mean:

conduct that amounts to an implied admission by the accused —

(a) of having committed an offence charged or an element of an offence

Mercer v The Queen 6 THE COURT

charged; or

(b) which negates a defence to an offence charged;6

23 Section 18 also defines ‘conduct’ to mean:

the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;

24 Section 19 of the Act requires the prosecution to give a notice of evidence of conduct that it proposes to rely on as evidence of incriminating conduct, at least 28 days before the day on which the trial of the accused is listed to commence.

Section 20 of the Act prohibits the prosecution from relying on evidence of conduct as evidence of incriminating conduct unless a notice has been given under s 19 and ‘the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct’.

25 Section 21 of the Act contains the direction the judge is required to give when the prosecution relies on evidence of conduct as evidence of incriminating conduct.

Section 21(1) provides:

(1) If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury that —

(a) the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that —

(i) the conduct occurred; and

(ii) the only reasonable explanation of the conduct is that the accused held that belief; and

(b) even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.

6 Section 18 also provides that the expression ‘offence charged’ includes any alternative offence.

Mercer v The Queen 7 THE COURT

26 Section 22 of the Act permits defence counsel to request an additional

direction on incriminating conduct if the trial judge proposes to give a direction under s 21. In terms, the additional direction provided for in s 22 is that:

(a) there are all sorts of reasons why a person might behave in a way that makes the person look guilty; and

(b) the accused may have engaged in the conduct even though the accused is not guilty of the offence charged; and

(c) even if the jury thinks that the conduct makes the accused look guilty, that does not necessarily mean that the accused is guilty.

27 Section 23 of the Act relates to the situation where evidence is given of conduct but the prosecution does not rely on the evidence as evidence of incriminating conduct. The direction that may be requested under that section is designed to avoid the risk of improper use of evidence of the particular conduct.

The applicant’s argument

28 Under his proposed ground of appeal against conviction, the applicant

submitted that the judge should not have given any direction on incriminating conduct. The applicant advanced two arguments in support of this submission: (1) No incriminating conduct direction was permitted to be given because, in his final address, the prosecutor did not rely upon the relevant phone calls as incriminating conduct. (2) In any event, using the phone calls as evidence of incriminating conduct would have involved the jury in engaging in impermissible ‘bootstraps’ reasoning.

The lack of reliance argument

29 Section 21 of the Act requires the judge to give the direction referred to in that section ‘if the prosecution relies on evidence of conduct as evidence of incriminating conduct’.7 Counsel for the applicant accepted that the discussions which took place

7 Emphasis added.

Mercer v The Queen 8 THE COURT

between the judge and counsel, in the absence of the jury, proceeded on the common

understanding that the prosecutor would be relying on the phone calls as evidence of incriminating conduct. Indeed, towards the end of the trial, defence counsel expressly conceded that the calls were capable of being used for that purpose. Moreover, defence counsel asked the judge to give the additional direction under s 22 of the Act.

30 What was said to be critical, however, was that the prosecutor did not at any time rely on the calls for that purpose in the presence of the jury. Specifically, the

prosecutor’s final address contained no reference to incriminating conduct, or to the phone calls as constituting incriminating conduct.

31 The parties’ written cases proceeded on the basis that the applicant was correct in asserting that the prosecutor did not refer to incriminating conduct in his address. In oral argument, however, counsel for the respondent identified a passage in the prosecutor’s address which, he submitted, revealed the possibility of a transcription error involving the failure to transcribe what the prosecutor might have

said about incriminating conduct.

32 The passage was at the end of the prosecutor’s address in relation to charges 1 and 2, and following a recitation by the prosecutor of a number of things that the complainant was alleged to have said following the events that gave rise to charges 1 and 2. As recorded in the transcript, the prosecutor said:

All right, well her Honour will tell you how you can use that evidence and I’m not go[ing] into it. It’s obviously not — it’s evidence of what the accused said and her Honour will tell you how you can use that evidence, but they’re the witnesses essentially, that you heard and the witnesses that the prosecution relies on in relation to charges 1 and 2.

33 Counsel for the respondent pointed to the prosecutor’s use of the phrase ‘what the accused said’ in this passage as suggesting that the prosecutor may have

said something about the phone calls in the course of his submission in relation to charges 1 and 2. Defence counsel had earlier pointed out to the judge that it was only what his client had said during the calls, and not what the complainant had

Mercer v The Queen 9 THE COURT

said, which could constitute incriminating conduct.

34 As a result of counsel’s submissions, we called for and watched a video recording of the relevant part of the prosecutor’s address. It is sufficient to say that the transcript accurately records what the prosecutor said. The prosecutor made no reference to incriminating conduct in his final address. One might speculate that the prosecutor merely misspoke when he said ‘the accused’. Alternatively, it is possible that the prosecutor intended to say something about the phone calls as incriminating conduct but failed to do so when he actually addressed the jury.8

35 The prosecutor not having ‘relied’ upon incriminating conduct in the course of his final address, the applicant submitted that s 21 of the Act was not engaged. In

support of this submission, the applicant referred to this Court’s decision in Lowe v The Queen.9

36 Lowe was a case concerning whether a direction was required to be given under s 25 of the Jury Directions Act 2013 (the predecessor of s 21 of the Act). In that

case, the Crown had served a notice of incriminating conduct but ultimately eschewed any reliance on it and made no submission to the jury about incriminating conduct. The Court in Lowe said:

Where the Crown does not rely upon the evidence of post-offence conduct as evidence of incriminating conduct, the trial judge has no obligation to give a direction pursuant to s 25. That conclusion rests upon a construction of s 25 which gives the words used their ordinary meaning. On a literal construction of the provision, the mandatory direction must be given when the Crown is relying upon ‘the evidence of conduct as evidence of incriminating conduct’ as defined. That is to say, if the evidence is being relied upon for the purpose specified in s 25, the obligation to give the direction is enlivened. That construction of s 25 is consistent with the statutory regime in pt 6 and in particular ss 23, 24 and 27.10

37 The submission for the applicant was that, since the prosecution had not

8 In the course of oral argument it was speculated that the prosecutor might have turned two pages of a prepared final address. That hypothesis was not inconsistent with the video recording of the prosecutor’s address. 9 (2015) 48 VR 351 (‘Lowe’). 10 Ibid 390–1 [145] (Redlich JA and Robson AJA).

Mercer v The Queen 10 THE COURT

relied on his post-offence conduct as evidence of incriminating conduct, the trial

judge in the present case was prohibited from giving an incriminating conduct direction.

38 There are two answers to that submission. First, Lowe was a very different case from the present case. Whereas in Lowe the prosecution expressly disavowed reliance upon its notice of incriminating conduct, there was no such disavowal in the present case. As we have said, the judge and both counsel proceeded throughout on the basis that the prosecutor intended to rely upon the notice of incriminating

conduct that had been served.

39 It is striking that, notwithstanding the prosecutor’s unexplained failure to

mention the issue of incriminating conduct in his final address, the judge gave the agreed directions on incriminating conduct and did so without objection or comment from either counsel. Specifically, defence counsel did not withdraw his request for the judge to give the additional direction under s 22.

40 Secondly, and more fundamentally, neither s 21 nor any other section in the Act prohibits a judge from giving the direction referred to in s 21 in the absence of ‘reliance’ — express or otherwise. Section 21 compels a judge to give a direction if the prosecution relies on evidence as evidence of incriminating conduct, but does not preclude such a direction being given in the absence of express reliance — and certainly does not preclude such a direction being given if the parties agree.

41 The only relevant prohibition in the Act is in s 15, which provides that the trial

judge ‘must not give the jury a direction that has not been requested under s 12’. Plainly, that section had no application. On the contrary, the judge was subject to the affirmative obligation under s 14(1) of the Act to give the s 22 direction which the defence had requested ‘unless there [were] good reasons for not doing so’.

42 Before her Honour gave her charge, there was no dispute between the parties that the judge should give the mandatory s 21 direction and the requested s 22 direction. The difficulty arose when the prosecutor failed to make any submissions

Mercer v The Queen 11 THE COURT

about incriminating conduct in his final address. At that point, if defence counsel

considered that the foreshadowed directions under ss 21 and 22 should now not be given, he needed to raise the matter with the judge. We have little doubt that, if the matter had been raised with the judge, her Honour would have permitted the prosecutor to make the submissions he had obviously overlooked making in the course of his final address.

43 Given the discussion which had taken place, in which defence counsel had sought the direction under s 22, it seems highly improbable that defence counsel did

not notice the prosecutor’s omission. It seems much more likely, in our view, that — for good forensic reasons, and in the knowledge that the prosecutor would be allowed to address further on the topic — defence counsel chose not to raise the

matter with the judge. Defence counsel may have thought (rationally) that it was better to have the jury told about incriminating conduct once only (by the judge), rather than twice (by the prosecutor as part of a persuasive argument, and then by the judge).

44 In any event, it is difficult to see how it could be suggested that there was any miscarriage of justice (let alone a substantial miscarriage of justice) in the judge giving a direction under s 21, in circumstances where the prosecutor had made no reference to the issue in his final address. As we have said, it seems inevitable that if the failure by the prosecutor to address on the issue of incriminating conduct had been raised by defence counsel at the end of the prosecutor’s address, the judge would have given the prosecutor leave to address the jury further on that issue and

would have given the direction she ultimately gave. There could have been no miscarriage in the jury hearing once what they might legitimately have heard twice. There is no substance in the applicant’s first argument.

The ‘bootstraps’ argument

45 Counsel for the applicant submitted that the words spoken by the applicant during the phone calls were not capable of advancing the prosecution case in respect

Mercer v The Queen 12 THE COURT

of charges 1 and 2. He contended that the words themselves were ‘neutral’ as to the

applicant’s guilt or otherwise of the offending. Counsel submitted that any use of what the applicant said during the phone calls as an implied admission of guilt involved bootstraps reasoning of the kind described by Neave JA in R v Sirillas.11 In Sirillas, her Honour (with whom Vincent JA and King AJA agreed) said:

Bootstraps reasoning occurs when the jury must assume that the accused has committed the offence with which he or she has been charged, for the purpose of deciding whether the statement they have made is a lie.12

46 To similar effect, the applicant relied upon this Court’s decision in R v Laz.13

In Laz, the Court said in relation to lies that were used to demonstrate a consciousness of guilt:

But, however widely one may use lies established by the evidence at trial, one could not assert properly to the jury, nor could the judge leave it open to them to infer, that lies established by their ultimate conclusions in the case were to be used as a consciousness of guilt of [the relevant charges] for the purpose of reaching the very same conclusion as to ultimate guilt.14

47 The phone calls relied upon by the prosecution as incriminating conduct are

lengthy. For present purposes, it is sufficient to set out the following extract:

APPLICANT: But look where I am again, like - - -

COMPLAINANT: Yeah, and look where I am again.

APPLICANT: - - - and I put myself - - -

COMPLAINANT: You think that was me that put me where I am?

APPLICANT: - - - I put myself — I put myself here, yeah? But fuck, look, we should have just stopped fuckin’ - - -

COMPLAINANT: I never been more scared of you than I was that day.

APPLICANT: Yeah, well - - -

COMPLAINANT: I couldn’t - - -

APPLICANT: - - - I was scared of me. Okay.

11 [2006] VSCA 234 (‘Sirillas’). 12 Ibid [19]. 13 [1998] 1 VR 453 (‘Laz’). 14 Ibid [466]. See further, DPP v Scriven (Ruling No 4) [2015] VSC 220, [38]–[40].

Mercer v The Queen 13 THE COURT

COMPLAINANT: Yeah, I know. Why do you think I got out?

APPLICANT: Well - - -

COMPLAINANT: But, well, that’s not the point, it’s that — actually was - -

48 There was no issue at trial, and no issue in this Court, that during the course of the relevant phone conversations, the applicant told the complainant that:

 she should tell the police that she was not in her right state of mind when she made the allegations and that she wished to drop the charges;

 he would pay for a lawyer to make a statutory declaration for her, in which she would state that she was not in her right mind when she made her statement and that she could not remember making the allegations she had made against him; and

 she should not talk on the phone about him assaulting her, as the calls between them were being recorded.

49 The issue in this Court (ultimately not contested at trial) was whether it was

open to the jury to conclude that in making these statements, the applicant was trying to persuade the complainant to lie rather than to tell the truth. In our view, it was well open to the jury to conclude beyond reasonable doubt that the applicant was attempting to persuade the complainant to lie. The passage we have extracted above is but one example of an exchange which supported that conclusion.

50 The applicant’s argument about ‘bootstraps reasoning’ falls down at this

point. Contrary to his submissions, the words he used were not neutral as to his guilt or otherwise of the offending. Nothing that he said to the complainant suggested that her allegations were in fact false or that the alleged events had not taken place. On the contrary, it was open to the jury to view his statements to her as

demonstrating his belief that he was guilty of the false with which he was charged.

51 It follows that no bootstraps reasoning was involved. The applicant’s trial

Mercer v The Queen 14 THE COURT

counsel was right to concede — and the judge was right to accept — that what the

applicant said during the conversations of 6 December 2017 was capable of constituting incriminating conduct.

52 For these reasons, the applicant’s proposed ground of appeal against conviction must be rejected.

Sentence

Reasons for sentence

53 The judge summarised the three offences for which the applicant fell to be sentenced as follows:

(1) The false imprisonment (charge 2 on the trial indictment) commenced when the applicant dragged the complainant back to his vehicle. It lasted approximately half an hour, and continued until the complainant escaped and ran from the vehicle into a petrol station where she locked herself in a small office and called 000.15

(2) The persistent contravention of a family violence intervention order (charge 1 on the indictment) was constituted by the applicant telephoning the complainant from prison 17 times to her landline. The applicant used a fellow inmate’s phone list to contact the complainant. In the course of one of the 17 conversations, the applicant admitted knowledge of the intervention order having been taken out and that he was breaching it.16

(3) The charge of attempting to pervert the course of justice (charge 5 on the trial indictment) was constituted by the making of the phone calls on 6 December 2017, to which we have already referred. The calls were intended to persuade the complainant to ‘drop the charges’.17

15 DPP v Mercer (a pseudonym) [2019] VCC 1193, [5]–[6] (‘Reasons’). 16 Ibid [9]. 17 Ibid [16]. Extracts of those phone calls are set out at Reasons [11]–[13].

Mercer v The Queen 15 THE COURT

54 The judge took into account, in mitigation of penalty, the applicant’s plea of

guilty to the charge of persistent contravention of a family violence intervention order. Her Honour observed, however, that the plea of guilty was ‘in the face of an overwhelming case, in which every breach of the order had been captured by [a] recording’.18 The judge accepted that the plea of guilty reflected the applicant’s remorse, but said that she would make no allowance for remorse for the commission of the offence to which the applicant pleaded not guilty.19

55 The judge summarised the applicant’s personal circumstances. These

included that the applicant was 34 years old at the time of offending; was educated to a Year 7 level; had been sexually abused by a male family member at the age of 13; had been employed in the construction and building industry sporadically since

he was 17; had substance abuse issues, including regularly abusing methylamphetamine since the age of 25; had been of good behaviour while on remand, with urine screens showing him to be clear of drugs; and had been diagnosed as suffering from a ‘residual’ or ‘mild’ post-traumatic stress disorder,

which had its antecedents in the sexual abuse he experienced, and was exacerbated by later traumas and difficulties ‘including several concussive episodes, conflict in the criminal milieu and several terms of imprisonment’.20

56 As to the applicant’s prior criminal history, the judge observed that in October 2014, he pleaded guilty in the County Court to five charges of common law assault, one charge of intentionally causing injury, one charge of threatening to inflict serious injury and one charge of false imprisonment. These charges related to an incident

involving a former domestic partner.21 The judge observed that the applicant’s present offending occurred just short of four months after he was released from custody for the offences for which he pleaded guilty in October 2014.22 The judge

18 Ibid [17]. 19 Ibid [18]. 20 Ibid [19]–[34]. 21 Ibid [35]. 22 Ibid [36].

Mercer v The Queen 16 THE COURT

then set out a summary of the applicant’s criminal history as it was prior to 2014.

This history included for armed robbery, theft, criminal damage, recklessly causing injury, contravening a family violence intervention order and affray.23

57 The judge said that she considered the false imprisonment charge to reflect the applicant’s underlying rage, his violence towards his partner, and his need to control her.24 The judge found this offending was ‘at the lower end of criminality for this offence generally’,25 but said that she nonetheless had regard to the fact that the

complainant was the applicant’s domestic partner and that ‘she was treated in an inhumane and demoralising way in placing her in [the] car, in aggravation of [the] offending’.26 Her Honour again observed that the applicant had been released from

prison ‘just shy of four months prior to this offending for committing the very same offence of false imprisonment to [an earlier] domestic partner’; and that the applicant had three prior convictions for breaching a family violence intervention order.27

58 The judge described the applicant’s conduct in attempting to pervert the course of justice as ‘reprehensible’.28 She said it was motivated by the applicant’s self-interest and need for control. Whilst it was unaccompanied by threats or violence, the judge said it was ‘protracted and repeated, and it preyed upon [the complainant’s] vulnerabilities’.29 The judge also noted that it was committed in breach of an intervention order, which had been unsuccessful in preventing the applicant from continuing to control the complainant.30

23 Ibid [37]. 24 Ibid [39]. 25 Ibid [40]. 26 Ibid. 27 Ibid. 28 Ibid [41]. 29 Ibid. 30 Ibid.

Mercer v The Queen 17 THE COURT

59 Next, the judge referred to general deterrence as being a significant purpose

of sentencing, both in relation to offences of family violence and to offences which relate to the administration of justice.31 Her Honour then said that it was plain that specific deterrence was needed, given the applicant’s prior criminal history.32

60 The judge referred to totality, saying that there needed to be significant concurrency between the sentences imposed upon the false imprisonment and persistent breach charges, but a higher measure of cumulation for the attempt to pervert the course of justice.33

61 Finally, the judge discussed the applicant’s prospects of rehabilitation, concluding that despite the applicant’s criminal history, and a marked similarity

between the false imprisonment charge in 2014 and the one that was before her and the fact that the applicant had been released from custody only a matter of months prior to his current offending, the applicant had ‘some prospects for successful rehabilitation’, provided that he could resist the temptation to consume illicit drugs.34

Parties’ contentions

62 In support of his contention that the sentence imposed upon him was manifestly excessive, the applicant relied upon three matters:

(1) The attempt to pervert the course of justice was unaccompanied by threats, violence or any inducement to the complainant to change her evidence.

(2) Sentences of the order of 3 years and 6 months for attempting to pervert the course of justice are at the upper end of sentencing practice for this offence. As a general proposition, such sentences are reserved for cases involving threats, the intimidation of witnesses, the offering of significant sums of cash

31 Ibid [42]. 32 Ibid [43]. 33 Ibid [44]. 34 Ibid [45].

Mercer v The Queen 18 THE COURT

to induce another person to make a false confession, or where the offending

takes place in a context of threats and intimidation and involves detailed planning and subterfuge.35

(3) The sentencing judge found that the applicant had ‘some prospects for successful rehabilitation’.

63 The respondent submitted that neither the sentence for attempting to pervert the course of justice, nor the total effective sentence, nor the non-parole period could be said to be ‘wholly outside the range of sentencing options available’.36 The

sentence for attempting to pervert the course of justice was ‘a small fraction of the maximum penalty provided’. While the sentence could be said to be at the upper end of the available range, that is not a basis for appellate intervention. When all of

the facts and circumstances were taken into account, the individual sentences, the total effective sentence and the non-parole period could not be said to be manifestly excessive.

Consideration

64 In our view, the answer to the applicant’s contention regarding the ‘attempt to pervert’ sentence is to be found in the judge’s sentencing reasons. As noted earlier, her Honour said:

You attempted to persuade a victim to withdraw her allegation to police. This is reprehensible – it was motivated by your self-interest and need for control. While it was unaccompanied by threats or violence, it was protracted and repeated and it preyed upon [the complainant’s] vulnerabilities. And of course it was also committed in breach of your intervention order, which was also unsuccessful in preventing you from continuing to control [her].

65 In our view, the applicant’s persistent and cynical assertion of control over the complainant, and his exploitation of her known vulnerabilities, made this case just as serious as if there had been explicit threats or actual violence. The transcripts of the

35 Tognolini v The Queen (2011) 32 VR 104; R v Galea [2001] VSCA 115; DPP v Oksuz (2015) 47 VR 731. 36 See Clarkson v The Queen (2011) 32 VR 361, 384 [89].

Mercer v The Queen 19 THE COURT

calls make plain his exertion of coercive psychological pressure on her, encouraging

her to think that they can ‘work things out’ between them and asking questions like ‘Do you want me to get out or not?’ The fact that the conduct about which he was asking her to lie involved his own criminal violence against her was a further aggravating feature. In our view, the applicant’s moral culpability for this offence was high.

66 It must also be emphasised that the applicant pleaded not guilty to this charge. Given its seriousness, and having regard to the applicant’s significant prior

criminal history (involving, as it did, very similar offending for which he was sentenced to a term of imprisonment in 2014), it is not reasonably arguable that the sentence imposed on the charge of attempting to pervert the course of justice was

outside the permissible range. We would also observe that only 18 months of this sentence, imposed for discrete offending, was ordered to be cumulated upon the sentence imposed on the false imprisonment charge.

67 Moreover, the judge was correct to observe that both general deterrence and

specific deterrence were significant considerations in sentencing the applicant for his present offending. Again, when one has regard to the circumstances of each of the offences and the matters personal to the applicant, it is not reasonably arguable that either the total effective sentence or the non-parole period were outside the range of sentencing options available to the judge.

68 For these reasons, the applicant’s proposed ground of appeal against sentence cannot succeed.

The applications for extensions of time

69 The applicant’s proposed grounds of appeal having been rejected, it would be futile to grant him either of the extensions of time which he seeks. That is sufficient to dispose of those applications. However, we wish to say something further about the applicant’s explanation for not commencing his proceedings in this Court within

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the time limit provided, and the material he relied upon in support of his extension

of time applications.

70 The applications for extensions of time were supported by an affidavit sworn by the applicant’s solicitor (‘the solicitor’). That affidavit may be summarised as follows:

 Approximately two to three weeks after the sentencing hearing, the applicant was required to undergo heart bypass surgery. He remained in hospital for two weeks and was

transferred to Port Phillip Prison for recovery for approximately four weeks.

 In mid-October 2019, the solicitor was contacted by the applicant’s brother regarding a potential appeal. A video conference was arranged with the applicant. In late October, the solicitor sent a client authority, disclosure statement and costs agreement together with a request for trust monies to the

applicant.

 In early November, the solicitor received a signed client authority. Steps were taken to obtain a copy of the applicant’s file from his previous solicitor. The solicitor received a copy of a merits advice previously prepared by counsel.

 At this stage, the solicitor’s office had not received funding for the appeal, and a hold was placed on the file until such time

that funds were received.

 In late January 2020, the solicitor was advised by the applicant’s mother that she would fund part of the appeal, and some funds were received. The solicitor’s colleague sent further correspondence to the applicant’s previous solicitor regarding obtaining the applicant’s file. They did not receive

Mercer v The Queen 21 THE COURT

a response, and made further attempts throughout February. In

late February, the file was finally received.

 Enquiries were then made with counsel to obtain a further merits advice. In mid-March, counsel confirmed that a further merits advice could be provided, and that additional transcript was required. A request was submitted to VGRS, and transcript was provided by VGRS in early April. In mid—late April, counsel requested further transcript, and further enquiries were

made with VGRS.

 In late April, counsel advised that there was an arguable ground of appeal against conviction and sentence, and prepared

a draft written case which was received by the solicitor on 3 May.

 On 18 May, the solicitor’s office received further funds from the applicant.

 The following day, the applicant filed his applications for

extensions of time for the filing of an application for leave to appeal against conviction and an application for leave to appeal

against sentence.

71 Sections 275 and 279 of the Act 2009 provide that the time for filing both a notice of application for leave to appeal against conviction and a notice of application for leave to appeal against sentence is 28 days after the day on which the person was sentenced.37 Thus, the applicant was required to commence

whatever proceeding he wished to commence in this Court on or before 27 August 2019.

72 The solicitor’s affidavit adequately explains the applicant’s delay from the time he was sentenced until the end of the recovery period associated with the applicant’s heart surgery. In ordinary circumstances, this Court would have had

37 Subject to any extension granted under s 313 of the Criminal Procedure Act 2009.

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little difficulty granting the applicant an extension that covered this period and a

further 28 days — that is, up to the end of October 2019. The delay after that time (in excess of a further six months) is, however, inordinate and not well explained. Specifically, the delay between early November 2019 and late January 2020 is unacceptable.

73 An applicant for an extension of time, where time has already expired, cannot simply allow months to pass in the expectation that those months will be overlooked by this Court because earlier delay has been adequately explained. The longer the

period of time that elapses following the expiration of a time limit, the more this Court expects a party seeking an extension to expedite matters so as to reduce the prospect of further delay.

74 The lack of an adequate explanation for months of inordinate delay in this case is unsatisfactory. It provides a further basis upon which this Court should refuse the extension of time applications.

Conclusion

75 The application for an extension of time for the filing of an application for leave to appeal against conviction, and the application for an extension of time for the filing of an application for leave to appeal against sentence, will be refused.

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