SUPREME COURT OF VICTORIA COURT OF APPEAL S EAPCR 2020 0100 SCOTT MERCER (a pseudonym)1 Applicant v THE QUEEN Respondent --- 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) --- CRIMINAL LAW – Conviction – Application for extension of time within which to file application for leave to appeal against conviction – False imprisonment – Attempt to pervert the course of justice – Incriminating conduct – Whether prosecutor relied on evidence 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 jury – 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 – Sentence – 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. --- 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 trial, 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-parole 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 miscarriage of justice 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’).