CITATION:	Lyons v BD [2018] NTSC 64

PARTIES:	LYONS, Richard Mark 

	v

	BD 

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction 

FILE NO:	LCA 4 of 2018 (21706859)

DELIVERED ON:	10 May 2018

DELIVERED AT:	ALICE SPRINGS 

HEARING DATES:	8, 10 May 2018

REASONS PUBLISHED:	11 September 2018 

JUDGMENT OF:	BLOKLAND J

CATCHWORDS:

CRIMINAL LAW – Appeal – Crown application for extension of time – whether Court should dispense with compliance with condition precedent to right of appeal – whether applicant did whatever reasonably practicable to comply – Notice of Appeal filed nine days out of time – prospects of success and substantial injustice relevant but not determinative – ground of appeal arguable – delay attributable to significant pressure on prosecutor but also simple systemic issues – prosecutor could have stated special case to Supreme Court – applicant did not do all reasonably practicable – application refused – Local Court (Criminal Procedure) Act (NT), s 165.
Criminal Code (NT), ss 31, 187, 187(e)
Local Court (Criminal Procedure) Act (NT), ss 162, 162(1A), 165, 171(2)

Alympic v Burgoyne [2003] NTSC 43; Brown v O’Neill [2017] NTSC 84; Federal Commissioner of Taxation v Arnhem Air Engineering Pty Ltd (1987) 90 FLR 140; Homes v Thorpe [1924] SASR 479; Isles v Lyons (2016) 36 NTLR 161; Jarvis v Jarvis [1947] SASR 12; Nottle v Trenerry (1993) 3 NTLR 68; Potter v Neave [1944] SASR 19; R v Mardday (1998) 7 NTLR 192; SB v Heath [2017] NTSC 13; Swann v Mosel [2014] NTSC 43; Wilfred v Rigby [2004] NTSC 31; Wilson v Malogorski [2011] NTSC 27, referred to.

REPRESENTATION:

Counsel:
	Applicant:	S Robson, S Tasneem
	Respondent:	J Lawrence SC

Solicitors:
	Applicant:	Office of the Director of Public Prosecutions 
	Respondent:	Ward Keller 

Judgment category classification:	B
Judgment ID Number:	BLO1808
Number of pages:	13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Lyons v BD [2018] NTSC 64
No. LCA 4 of 2018 (21706859)

	BETWEEN:

	RICHARD MARK LYONS 
	Applicant

	AND:

	BD
	Respondent

CORAM:	BLOKLAND J

REASONS FOR DISMISSING AN APPLICATION 
TO EXTEND TIME TO FILE AN APPEAL 

(Delivered 11 September 2018)

Introduction 
[1]	At the conclusion of a hearing in the Local Court sitting at Tennant Creek on 14 February 2018, the respondent was found not guilty of two counts of aggravated assault. Both charges allege circumstances of aggravation, namely that the person assaulted is under 16 years and that the assaults are of an indecent nature. 
[2]	The applicant filed a Notice of Appeal on 23 March 2018. The single ground of the proposed appeal is that the learned Local Court judge erred in the interpretation of “assault” as defined within s 187 of the Criminal Code by importing a subjective element into the arguably objective test of “conduct reasonably needed for the common intercourse of life”, set out in s 187(e) of the Criminal Code. The application was filed nine days out of time. Under s 171(2) of the Local Court (Criminal Procedure) Act (“the Act”) an appeal in the ordinary course is to be instituted within 28 days of the order appealed from. 
[3]	The application for an extension of time was heard on 8 and 10 May in Alice Springs. At the conclusion of submissions the application to extend time was dismissed. These are the reasons for dismissing the application. 
The relevant principles
[4]	Section 171(2) of the Act provides time may be extended in the case of remoteness from the court of appeal not exceeding three months. However, the applicant relies on s 165 of the Act. Section 165 permits the Court to dispense with compliance with any condition precedent to the right to appeal if, in its opinion, the applicant has done whatever is reasonably practicable to comply with the Act. 
[5]	It is well established the requirement to institute an appeal within the 28 day period specified is a condition precedent to the institution of an appeal. 
[6]	It is incumbent upon the party who desires the benefit of s 165 to show by evidence or admitted facts that they or their agent have done “whatever is reasonably practicable”. This is to be assessed by the circumstances of the intending appellant and their accessibility to the means for completing and lodging the appeal. 
[7]	The discretion conferred by s 165 to excuse compliance with conditions precedent to appeal is unfettered. 
[8]	In terms of what is meant by “reasonably practicable”, the following exposition by Mayo J in Potter v Neave is cited as authority in many relevant cases in this jurisdiction:
Whether everything reasonably practicable has been essayed, must be tested by the circumstances of the intending appellant and his accessibility to means for completing and lodging the initial documents. “Practicable” may possibly be paraphrased in the context of s 165, as “capable of being done or accomplished with the available resources whatever they may be”. I apprehend, it is unnecessary to show that compliance with the procedure laid down was quite impossible, but, be that so or not, it must at least be demonstrated as unreasonable to expect in the particular circumstances that exact compliance should be insisted on. 
[9]	In Federal Commissioner of Taxation v Arnhem Aircraft Engineering Pty Ltd, after reviewing relevant authorities, Asche J held “substantial reasons must be shown to establish that the appellant has done whatever [is] reasonably practicable, and the onus is on the appellant to show this”. 
[10]	Cases illustrating the application of the principle include Brown v O’Neill, where the Court ruled that an applicant who filed a Notice of Appeal two days out of time should not be granted an extension of time. There the applicant was found to have consciously abandoned her right to appeal within the time limit and only later decided to lodge an appeal after its expiry. Although the applicant’s challenging personal circumstances were largely accepted, her evidence to the effect that she continued to pursue her appeal throughout the period was not. The Court found the applicant had made a deliberate and informed decision to abandon the appeal after receiving legal advice that the appeal had no merit. In SB v Heath it was said that where a lay appellant is in custody and instructs their solicitor to lodge an appeal on their behalf within the period, and the failure to do so is the fault of the solicitor, this is sufficient to prove that an appellant has done whatever was reasonably practicable to comply with the Act. Further, it has been held that once this is proved, the Court has a discretion to excuse non-compliance and as a general rule, the discretion will usually be exercised favourably if the delay is not too long, and if the grounds of appeal are reasonably arguable. 
[11]	Other cases illustrating examples of circumstances that have led to the discretion being exercised favourably include Jarvis v Jarvis concerning service of the Notice rather than its filing. In Jarvis the respondent was in England. Ten days after the order against which the appellant wished to appeal was made, the appellant posted by airmail the Notice of Appeal for service on the respondent in England. In the ordinary course, the Notice should have reached England five days later, but it was not in fact received until one month later. It was held that compliance with the condition precedent should be dispensed with. In Homes v Thorpe, notice had been given in time to the clerk of the Court and thereafter continuous efforts had been made to serve the notice within time without success. Commenting on Homes v Thorpe in Federal Commissioner of Taxation v Arnhem Aircraft Engineering Pty Ltd, Asche J remarked that may be a borderline case because the appellant left himself only three days to effect service. The cases illustrate that delay in filing or service of a Notice of Appeal requires evidence that an appellant exercised all reasonable caution and expedition which would be expected of a reasonable person desiring to appeal and who knows or should know of the limitations of time relating to appeals. 
[12]	There appears to be a different emphasis in the authorities on the weight to be given to the merits or prospects of success of the ultimate question raised by the substance of the appeal when considering an application to dispense with the time requirements. As above in Isles v Lyons, the Court concluded the discretion is usually exercised when the delay is not too long and the grounds of appeal are reasonably arguable. Similarly in Swann v Mosel it was held that in some cases consideration of the prospects of appeal and the consequences of a successful appeal is required. In Alympic v Burgoyne, Martin CJ (BF) at first blush appeared to rule out the prospects of success as a relevant consideration. However, his Honour was making the point that s 165 is “not a general enabling provision for extension of time on grounds which raise for consideration the wider concepts of justice or injustice should the applicant not have the opportunity to pursue the appeal. The enabling power is limited by its express words”. 
[13]	In my view the prospect of substantial injustice in a particular case may well be a relevant factor tipping the balance towards allowing the extension, however the terms of s 165 must still be complied with. The prospects of success or otherwise may be important in some cases. It will not, however, always be the determinative factor. 
[14]	The same fundamental test under s 165 applies to all applicants, whether they be an unrepresented appellant not accustomed to court procedures or a litigant in the position of the applicant here, being the informant represented by the Office of the Director of Public Prosecutions. However, because of the nature of the factors likely to be considered in applications of this kind, an unrepresented person who is unacquainted with the procedures may well be in a stronger position to establish that they have done whatever is reasonably practicable to comply with the Act, given their particular circumstances. In a sense it is a more difficult task for the respondent here who is well acquainted with the Act and its time limitations. 
[15]	That is not to say it would not be possible for the Crown as an appellant to succeed in an extension application; however, the evidence would need to establish a concrete reason as to why there was non-compliance. It is envisaged the circumstances would be quite unusual to successfully ground such an application. Relevant also in the context of a Crown application against acquittal is Asche J’s observation in Federal Commissioner of Taxation v Arnhem Air Engineering Pty Ltd that:
[T]ime limits, subject to just exceptions, should generally be enforced; particularly in criminal or quasi-criminal matters; so that a respondent should know with certainty, and no doubt with relief, that after the expiration of a time certain he will be no further troubled. 
Consideration of the applicant’s evidence 
[16]	The prosecutor who appeared as counsel in the Local Court filed an affidavit in support of the application. As she was required by senior counsel for the respondent for cross-examination, she gave evidence in these proceedings. I accept her evidence which was given with obvious sincerity and honesty. The prosecutor genuinely formed the opinion the judge had made an error of law with respect to the interpretation of “assault” as defined by s 187 of the Criminal Code, by including a subjective element when considering the exclusion from the definition of “force”. I will not set out the full range of possible opinions here, but relevant to the s 187(e) construction argument, it appears that on one view of the evidence; the alleged acts comprised a form of communication that may have involved a pinching action by the respondent. There was evidence the respondent has significant disabilities that may have been relevant to that particular view of the facts. The prosecutor made notes of the oral decision delivered on 14 February 2018 that made brief references to these matters; however, she wanted to check the transcript of reasons before an appeal was filed, indeed before counsel for the respondent was notified that the respondent was contemplating an appeal. The prosecutor found the discussion of mens rea in the oral reasons somewhat confusing. She wanted to consult with a senior colleague about whether an appeal should be investigated. 
[17]	The prosecutor did not order the transcript immediately as she was travelling back to Alice Springs from Tennant Creek on 14 February 2018. She ordered the transcript the following day, on 15 February 2018. The transcript was not delivered until 5:00pm on 2 March 2018. On that day the prosecutor travelled to Darwin and was occupied as counsel in a trial until her return to Alice Springs on 10 March 2018. She then immediately commenced preparations for another trial commencing 12 March 2018. She believed the first reasonable opportunity she had to review the appeal was on 22 March 2018. On that date she was given approval to initiate the appeal which was filed the following day. She had had discussions with a senior crown prosecutor leading up to that date but was not given approval until 22 March 2018. Part of her reasoning not to institute the appeal before obtaining final approval was to ensure the respondent would not be placed under unnecessary anxiety. 
[18]	The prosecutor clarified further in her evidence that although the Office of the Director of Public Prosecutions had received the transcript on 2 March 2018, she had not looked at it because it was not brought to her attention that it had arrived. Further, the trial that was to commence on 12 March 2018 did not in the end proceed; however, she was then required to conduct other matters scheduled at short notice. 

Further consideration of the issues
[19]	It is acknowledged here the prosecutor was in a difficult, indeed pressured, professional situation. The evidence given does reveal the additional difficulties of regional legal work. Not only was she travelling to various courts appearing in difficult cases, but the complainant in the trial that was due to commence on 12 March 2018 in Alice Springs was extremely vulnerable to the point of being suicidal, requiring the prosecutor’s full attention. Ultimately a nolle prosequi was filed; however, the process leading to that decision required the in-depth engagement of the prosecutor. 
[20]	Although I accept the significant pressures operating on the prosecutor at the relevant times, not all of the delay can be explained by those difficulties. Some of the delay may be explained by a simple breakdown in communication, or lack of communication about the transcript arriving on the office shared drive and therefore being ready for review. At that point, if the prosecutor was otherwise engaged, assistance could or should have been given to review the case. Considering the evidence as a whole, I am not satisfied the delay was solely as a result of the prosecutor’s workload and pressures, but also involved simple systemic issues. The matters raised in evidence although difficult, are not of the kind that would enliven the discretion to dispense with the pre conditions in circumstances where the time limitations are well known to the informant and his representatives. 
[21]	It was laudable that the prosecutor did not seek to initiate the appeal without review of the transcript and consultation with a senior prosecutor to avoid causing the respondent unnecessary anxiety. The reason for the appeal was not only to correct the decision if there had been an error of law, but also to ensure the decision had no precedent value if it stood uncorrected. Counsel for the applicant acknowledged the decision could at most have persuasive value at the Local Court level, however its influence was necessarily limited. In these circumstances where the question to be determined was purely a question of law, any apprehensions concerning unnecessary anxiety to a respondent or limiting the precedent value of the decision could have been dealt with by stating a special case for the opinion of this Court pursuant to s 162 of the Act. That procedure was not considered but would have been appropriate in the circumstances. While s 162(1A) provides a limitation period of one month, no question of anxiety to a respondent arises as the immediate decision is not susceptible to reversal; however, if necessary the law may be corrected. 
[22]	There was, in my view, an arguable case on appeal; however, it is not clear-cut. First, without going to the issue of intent, because of the respondent’s profound disabilities, there was arguably a necessity to examine what would, in those unusual circumstances, constitute “conduct reasonably needed for the common intercourse of life” beyond what may ordinarily be the case. Second, the judge found there was doubt as to the exact part of the body of the complainant to which the force was applied. The judge also found the evidence did not support beyond reasonable doubt the interference was indecent. Regardless of what act or acts the Court found proven, doubt was expressed as to the proof of intent given the respondent’s usual mode of communication. The judge then referred to not being satisfied that the force used was not used for, and not reasonably needed for, the common intercourse of life, or that the necessary mental element or mens rea was established. This would tend to indicate there was an alternative basis for the decision without recourse to the impugned aspect of the decision relevant to s 187(e) of the Criminal Code. 
[23]	A further matter to be considered is that the charges laid on information do not separately charge the circumstances of aggravation. The charges appear to roll up the circumstances of aggravation into the substantive charge. While ultimately nothing turns on the wording of the charges for the purposes of this application, it may be noticed that the preferred way to charge is to separately list or charge the alleged circumstances of aggravation, otherwise it may be perceived that the circumstances of aggravation are elements of the substantive charge, as opposed to separate circumstances of aggravation. It is unknown whether the form of the charges has led to a merging of the reasoning relevant to intention as between the alleged application of force and the circumstances of aggravation, particularly the circumstance of indecency. It may be noticed intention and foresight under s 31 of the Criminal Code do not apply to circumstances of aggravation. 
[24]	For these reasons, the application was dismissed. 
[25]	By previous arrangement with counsel these reasons will be forwarded by email without further listing the matter. 
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