ZBJ v R

1. [1]

   THE COURT: The applicant, ZBJ, seeks leave to appeal out of time under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Criminal Appeal Rules).

Background

1. [2]

   The background to this application can be summarised as follows. The applicant was charged with one count of maintaining, between 1 January 2007 and 17 May 2008, an unlawful sexual relationship with a child under the age of 16 years, contrary to s 66EA of the Crimes Act 1900 (NSW). He pleaded not guilty to this charge.

2. [3]

   A trial before Culver DCJ and a jury took place between 1 and 23 February 2022. The jury returned a verdict of guilty on 23 February 2022.

3. [4]

   Sentence proceedings were heard on 6 May and 22 July 2022.

4. [5]

   On 4 November 2022, Culver DCJ sentenced the applicant to imprisonment for 18 years, commencing on 23 February 2022 and expiring on 22 February 2040, with a non-parole period of 11 years expiring on 22 February 2033.

The appeal

1. [6]

   A notice of intention to appeal was filed on 25 November 2022 but that notice ceased to have effect after 25 November 2023 by virtue of r 3.1(3) of the Criminal Appeal Rules. [1]

2. [7]

   Thereafter what occurred is confused. It is not easy to ascertain when documents were filed from the material in the form presented to the Court by way of the Application Book (AB). What follows is derived from the court file and the documents filed according to the Court’s electronic filing and recording system, JusticeLink, as well as the Application Book and the parties’ submissions.

3. [8]

   On 4 December 2024, approximately one year and one week after the notice of intention to appeal ceased to have effect, the applicant filed:

   1. (1)

      a notice of appeal together with annexures A and B, all dated 3 December 2024. Annexure B was an “Application for Leave to File a Notice of Appeal after Expiry of the Filing Period” under r 3.5(5), as required by r 3.5(1)(b) of the Criminal Appeal Rules, since the notice of appeal was filed after the applicable periods for filing in r 3.5(2)(a) and (b) of the Criminal Appeal Rules had expired. In annexure B, the reason why the notice of appeal was filed out of time was said to be:

   2. (2)

      a 92 page document headed “Appellant Submissions” which included information required under par 18 of Practice Note SC CCA 1, identification of the grounds of appeal in relation to both the conviction and sentence appeals, written submissions on each ground and a list of attachments A to AE together with copies of those attachments; and

   3. (3)

      an affidavit of the applicant dated 31 October 2024 explaining some of the difficulties with legal representatives which the applicant said caused the delay in filing the notice of appeal.

4. [9]

   On 12 December 2024, the applicant’s notice of appeal and application for leave under r 3.5(5) were listed before the Registrar and orders were made for the filing of amended grounds of appeal, amended written submissions and affidavit evidence as to the new evidence and incompetence of counsel grounds and the proceedings were listed for further callover on 6 February 2025.

5. [10]

   What occurred on 12 December 2024 may have been what caused the applicant’s understanding which he explained to the Court during oral submissions as follows: [2]

6. [11]

   On 22 January 2025, the applicant filed a 75 page document headed “Appellant Submissions” which included the information required under par 18 of Practice Note SC CCA 1, identification of the grounds of appeal in relation to both the conviction and sentence appeals, written submissions on each ground and a list of attachments A to AC. This appeared to be similar too but not the same as the 92 page document with the same title filed on 4 December 2024.

7. [12]

   It can be noted at this point that the Crown’s written submissions included the contentions that the applicant’s notice of appeal was dated 17 January 2025 and was filed on 22 January 2025. [3] In light of what is set out above, it is not clear what is the basis for these contentions. Furthermore, the first document in the index to the AB is described as “Notice of Appeal” and the relevant date is said to be “17/01/25” but the actual document in the AB is a notice of appeal dated 3 December 2024 together with annexure B (but not annexure A) also dated 3 December 2024. [4] These pages are the same as the relevant corresponding pages of the notice of appeal (including both annexures A and B) which is stamped as having been filed on 4 December 2024 and annotated as having a next listing date of 12 December 2024.

8. [13]

   Between 6 February 2025 and 12 June 2025, there were numerous listings for callover before the Registrar at which orders for the preparation of the matter were made. The matter was originally listed for hearing on 16 May 2025 but eventually the matter was listed for hearing on 16 June 2025.

9. [14]

   On 19 February 2025, the applicant filed a release application under the Bail Act 2013 (NSW) together with proposed bail conditions and submissions. The applicant explained his understanding of what occurred as follows:

10. [15]

    On 3 April 2025, the applicant filed a handwritten document dated 1 April 2025 which set out the applicant’s “finalised grounds of appeal” “[a]s [the Registrar] requested”. The grounds of appeal were as follows:

11. [16]

    By a notice of motion dated 23 April 2025 provided by email but not apparently filed, the applicant separately sought an extension of time in which to file his notice of appeal.

12. [17]

    On 24 April 2025, the Registrar refused the application for an extension of time.

13. [18]

    On 1 May 2025, the applicant filed a handwritten document dated 27 April 2025. That document contained his “consolidated submissions in support of [his] motions to extend time to appeal and provide a valid copy of the trial transcript, and applications to review [the Registrar’s] decisions under rule 6.1 of the Supreme Court (Criminal Appeal) Rules 2021”, together with attachments A to E.

14. [19]

    On 23 May 2025, the application to review the Registrar’s decisions was considered by Harrison CJ at CL on the papers. His Honour was of the view that the issue of whether to grant the extension of time should be decided at the hearing of the appeal. Consequently, the Chief Judge concluded that there was no basis to make an order that differed from that of the Registrar. His Honour’s reasons were published: AK v R [2025] NSWCCA 74.

15. [20]

    On 2 June 2025, the applicant filed a handwritten document described as a replacement for the affidavit of 31 October 2024, which had been filed on 4 December 2024. This later document was sometimes referred to as the 30 May affidavit and was accompanied by attachments A to F.

16. [21]

    The hearing of the application for leave to appeal out of time, the release application under s 49 of the Bail Act and, if leave were granted, the appeal and the application for leave to appeal came before the Court as presently constituted on 16 June 2025.

Initial issues

1. [22]

   There were two initial issues arising out of the proposed appeal which caused us to deal with the application for leave to appeal out of time separately from, and before the hearing of, the appeal and application for leave to appeal if leave to commence out of time were granted. They were:

   1. (1)

      the fact that proposed ground of appeal 12 effectively raised the issue of whether s 66EA of the Crimes Act was invalid by virtue of Chapter III of the Commonwealth Constitution; and

   2. (2)

      the fact that the applicant wished to make a release application under s 49 of the Bail Act.

2. [23]

   Proposed ground of appeal 12 simply contends that s 66EA of the Crimes Act “is unconstitutional”. In his written submissions filed on 22 January 2025, the applicant submitted at par 198 that:

3. [24]

   While this ground as formulated and explained in submissions may lack force, it must be borne in mind that the applicant is not legally trained and is representing himself.

4. [25]

   Section 66EA relevantly provides:

5. [26]

   In its submissions, the Crown noted that constitutional challenges to the South Australian and Queensland provisions which are similar to, but not exactly the same as, s 66EA have been unsuccessful: Morton (a pseudonym) v The King [2025] SASCA 29 and R v CAZ [2012] 1 Qd R 440; [2011] QCA 231, respectively. Nonetheless, those cases do indicate the bases upon which it might be argued that s 66EA is invalid. For example, in CAZ, Fraser JA accepted at [42], citing Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 132 and Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 76 [63], that

6. [27]

   In addition, in CAZ, the Queensland provision was challenged on the basis that it in effect abrogated the requirement that the jury, unanimously or by statutory majority, agree on the same unlawful sexual acts and thus had the effect of requiring the District Court, in that case, to act in a manner that was incompatible with Chapter III of the Commonwealth Constitution. Fraser JA made express reference, at [52], to s 80 of the Commonwealth Constitution and noted, at [53], that the relevant Queensland provision did not purport to dispense with trial by jury. Indeed, it was said, the provision expressly contemplated trial by jury. His Honour continued:

7. [28]

   While it might well be the case that this Court would reach the conclusion that s 66EA of the Crimes Act was not unconstitutional for reasons similar to those of the Courts in Morton and CAZ, it does not appear to us that this Court should decide that ground 12 is so lacking in merit that the ground should be, in effect, dismissed without further argument. In other words, ground 12 should be accepted as sufficiently raising the issue of the constitutionality of s 66EA so that full argument on that ground should be permitted, perhaps with the assistance of an amicus curiae in relation to the arguments in favour of concluding that the provision is constitutionally invalid.

8. [29]

   If, however, the constitutional validity of s 66EA is to be determined, s 78B of the Judiciary Act 1903 (Cth) becomes relevant. The most pertinent provisions of s 78B are as follows:

9. [30]

   “Cause” is defined in s 2 of the Judiciary Act as including “criminal proceedings”. An appeal against conviction and an application for leave to appeal against either conviction or sentence or both are criminal proceedings.

10. [31]

    The appeal or application for leave to appeal based on ground 12, once properly instituted, will be criminal proceedings that involve a matter arising under the Constitution or involving its interpretation, as explained above.

11. [32]

    The question then arises whether there is “a cause pending” in this Court before leave to appeal out of time under r 3.5(5) of the Criminal Appeal Rules has been granted. Rule 3.5(5) states:

12. [33]

    From the terms of r 3.5(5), it follows that, if as in the present case the notice of appeal was filed after the expiry of the applicable period and leave of the Court has not been granted under that subrule, no appeal or application for leave to appeal has yet been “made”. In this sense, the appeal and application for leave to appeal which are the subject of the notice of appeal are not proceedings, or a cause, pending in the Court until leave under r 3.5(5) is granted. This is confirmed, at least for the purposes of New South Wales Acts and statutory instruments, by s 10 of the Criminal Appeal Act 1912 (NSW) which provides:

13. [34]

    By virtue of s 12 of the Interpretation Act 1987 (NSW), the words “any other Act” in the chapeau to s 10(2) of the Criminal Appeal Act are to be taken as a reference to any other Act in and of New South Wales. Nonetheless, this does not preclude the words “a cause pending … in a court of a State” in s 78B of the Judiciary Act being construed as not including an appeal or application for leave to appeal that has not yet been “made” because leave under r 3.5(5) has not been granted.

14. [35]

    If and when leave is granted under r 3.5(5), however, the fact that the applicant relies on ground 12 means that there will be pending proceedings which attract the operation of s 78B of the Judiciary Act.

15. [36]

    Consequently, if leave is granted under r 3.5(5), it will then be the duty of the Court not to proceed unless and until the requisite notices have been given in accordance with that section and a reasonable time has elapsed for consideration by the Attorneys-General. Thus, in light of ground 12 and the requirements of s 78B, the hearing of the appeal and application for leave to appeal could not be dealt with at the same time as the hearing of the application for leave under r 3.5(5).

16. [37]

    It did not appear to us that it was practical or appropriate to deal with the grounds of appeal that did not involve a matter arising under the Constitution or involving its interpretation separately from the constitutional ground. This was not least because s 78B itself provides that the Court’s duty is “not to proceed in the cause” unless and until the notices have been given and the Attorneys-General have had a reasonable time to consider the notices.

17. [38]

    The applicant also seeks to make a release application under s 49 of the Bail Act pending the determination of his appeal. Section 49 provides relevantly:

18. [39]

    Under s 4(1) of the Bail Act, a “person accused of an offence” is relevantly defined as including “a person who has been … convicted of an offence” or “a person in respect of whom proceedings on an appeal against conviction or sentence for the offence are pending”. Thus, the applicant is a person accused of an offence for the purposes of s 49(1) and entitled to make a release application.

19. [40]

    This Court’s power to hear and determine a bail application is limited by s 48(2) and (3) of the Bail Act which include:

20. [41]

    Part 6 of the Bail Act provides for power to hear bail applications. Division 2 of Pt 6, which includes s 61, establishes the power of courts generally to hear and determine applications for bail. Section 61 is in these terms:

21. [42]

    The other section in Pt 6 which concerns powers specific to the Court of Criminal Appeal is s 67 but none of the circumstances mentioned in that section is relevant in the present case.

22. [43]

    Consequently, the only power of this Court to hear the release application in the present case arises under s 61 and depends on there being “proceedings for the offence” that are "pending in the court". The meaning of these phrases is governed by s 5 and s 59 of the Bail Act. In addition, s 10(2) of the Criminal Appeal Act, which has been quoted above, is relevant to when proceedings are pending in this Court.

23. [44]

    In s 5(1), “proceedings for an offence” is defined to include “proceedings on an appeal against conviction or sentence”. Furthermore, s 5(3) provides that:

24. [45]

    Section 59 of the Bail Act provides as follows:

25. [46]

    Under s 10(2) of the Criminal Appeal Act, “an appeal against a conviction or sentence is taken to be pending in the court if notice of intention to appeal or apply for leave to appeal has been duly given to the court (unless the appeal or application has not been made within any time it is required to be made by the rules of court).”

26. [47]

    Since the notice of appeal was not filed within the applicable periods, as explained above, there is no appeal against conviction or sentence “pending” in this court, prior to leave being granted under r 3.5(5). It follows that this Court does not have power to hear and determine the applicant’s release application unless and until leave is granted under r 3.5(5). This reasoning is consistent with the approach taken by this Court in respect of applications for release on bail pending appeal where the notice of appeal was filed out of time both under the Criminal Appeal Rules and under the earlier Criminal Appeal Rules (1952 SI 2) (NSW): see for example Paul Crowhurst v R; Narelle Crowhurst v R [2025] NSWCCA 57 and Mashayekhi v R [2021] NSWCCA 55.

27. [48]

    This was a further reason why we determined to deal with the question of leave under r 3.5(5) before dealing with the proposed appeal and application for leave to appeal and the release application.

Leave under r 3.5(5) of the Criminal Appeal Rules to make the appeal and application for leave to appeal out of time

1. [49]

   The applicant identified the material on which he relied in relation to his application for leave to make the appeal and application for leave to appeal out of time under r 3.5(5) as follows:

   1. (1)

      the handwritten document dated 1 April 2025 and filed on 3 April 2025 which set out the applicant’s “finalised grounds of appeal”;

   2. (2)

      the handwritten document dated 27 April 2025 and filed on 1 May 2025 which contained the applicant’s “consolidated submissions in support of [his] motions to extend time to appeal” and included attachments A to E;

   3. (3)

      the handwritten document filed on 2 June 2025, described as a replacement for the affidavit of 31 October 2024, also referred to as the affidavit of 30 May 2025, and which was accompanied by attachments A to F.

2. [50]

   The Crown relied principally on those parts of its written submissions, dated and filed on 2 June 2025, which related to the applicant’s application for leave to make the appeal and application for leave to appeal out of time.

3. [51]

   The applicant submitted that there were essentially two grounds on which the application for leave under r 3.5(5) should be granted.

4. [52]

   The first ground was to the effect that the applicant was given “wrong advice” by his legal advisers in November 2023 when he was informed that there were two options: (a) to file his notice of appeal, before the notice of intention to appeal ceased to have effect, which included “what you want to say yourself mashed together with what the barristers have completed to date” and then seek to amend the notice of appeal later; or (b) “seek leave from the court and file [the notice of appeal and grounds] out of time” when counsel was in a position to do so. The applicant was informed that option (b) was the “preferable course of action”. The applicant also said that “[a]n option to apply for an extension of the deadline was not even mentioned.”

5. [53]

   The second ground was that, for reasons beyond the applicant’s control, he had to retain a number of barristers and none of them delivered what he considered were “acceptable results” and this caused significant delay.

6. [54]

   In summary it was said that there was no time lost due to his negligence, inaction or wrongful actions. Rather, the applicant submitted he was let down by legal practitioners as outlined in the document filed on 2 June 2025 and in the attachments A to F to that document.

7. [55]

   In these circumstances the applicant submitted that it would be fair to extend the time to appeal until “the end of February 2025” considering that he took over the case at the end of August 2024 and he had to file the appeal from gaol.

8. [56]

   The Crown submitted that the applicant’s evidence established that a significant part of the delay in relation to the applicant’s appeal was effectively due to him disagreeing with the legal advice that he received. Nonetheless, it was accepted by the Crown that if any ground had sufficient merit, an extension of time would be appropriate to allow the Court to consider that ground.

9. [57]

   Under r 3.5(5) of the Criminal Appeal Rules, the Court has a wide discretion to grant leave to make an appeal or an application for leave to appeal out of time. Whether leave should be granted depends fundamentally on what the interests of justice require in all the circumstances of the particular case: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [30] (French CJ, Hayne, Bell and Keane JJ); Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 (McHugh J). As McHugh J explained in Gallo, the grant of an extension of time should not be seen as automatic and the object of the power to extend in effect the “applicable period” conferred by r 3.5(5) of the Criminal Appeal Rules is to be understood as being to ensure that the applicable periods fixed by r 3.5(2)(a) and (b) do not become an instrument of injustice. These authorities also establish that, while it is impossible to foresee all of the circumstances which may bear upon the determination of whether an extension of time should be granted, relevant considerations as to what the interests of justice require include:

   1. (1)

      whether there is a satisfactory explanation for the delay;

   2. (2)

      the prospects of success of the appeal if an extension is granted;

   3. (3)

      whether there is any prejudice to the other party caused by the failure to comply with the relevant time limit; and

   4. (4)

      whether there is any adverse effect on the victim, or on the community generally, occasioned by effectively re-opening a concluded criminal proceeding.

10. [58]

    The relevant period of delay in the present case was the one year and eight days between the notice of intention to appeal ceasing to have effect on 25 November 2023 and the filing of the notice of appeal and other documentation on 4 December 2024. What relevantly occurred can be summarised as follows.

11. [59]

    After the applicant was sentenced, his then solicitors were aware that he wished to appeal against both conviction and sentence but did not order the summing up until March 2023 and thus preparation of the conviction appeal was significantly delayed.

12. [60]

    Junior counsel originally retained in relation to the appeal could not continue because of problems and his involvement came to an end in March or April 2023.

13. [61]

    Replacement junior counsel did little to advance the appeal prior to his departure from the case and his departure was notified to the applicant’s solicitors on about 14 November 2023.

14. [62]

    By about 17 November 2023, senior counsel retained in relation to the appeal had found another suitable junior counsel to assist but also advised that it would be impossible to meet the tight deadline, which we understand referred to the notice of intention to appeal ceasing to have effect on 25 November 2023, because of the voluminous material required to be considered.

15. [63]

    On 17 November 2023, the applicant’s solicitors advised in a letter to the applicant that they could either: (a) file what the applicant “wanted to say [him]self mashed together with what the barristers have completed to date , and then seek permission to amend later”; or (b) “seek leave from the court and file out of time when [senior counsel] is in a position to do so”. It was noted that senior counsel thought that option (b) was the preferable course of action. The solicitors’ letter continued:

16. [64]

    It appears that the applicant decided to proceed on the basis of counsel’s preferable course of action.

17. [65]

    On 2 April 2024, counsel provided a memorandum of advice in relation to the appeal. A number of the applicant’s concerns and potential grounds of appeal were addressed. Without attempting to summarise the contents of that memorandum in detail, it is sufficient to note that counsel were of the opinion that further documentation and investigation would be required if certain grounds of appeal were to be reasonably arguable. In addition, for reasons set out in the memorandum, counsel said that they were of the view “that it could be reasonably argued that the Crown’s conduct [in cross examining the applicant and in the closing address] led to a miscarriage of justice.” Accordingly, counsel were not of the view that there would be no reasonably arguable grounds of appeal in relation to conviction available to the applicant.

18. [66]

    On 18 May 2024, senior and junior counsel wrote a supplementary letter in which they concluded that there were two grounds of appeal against conviction and potentially one further ground that they would propose to rely on in any appeal. They referred to the notice of intention to appeal having ceased to have effect on 25 November 2023 and advised that the notice of appeal and written submissions in support should be filed as soon as possible.

19. [67]

    On 25 June 2024, the applicant’s solicitors wrote to him enclosing the letter of 18 May 2024 and other material. In that letter, the solicitors noted the applicant’s concerns about various matters and stated that unless they received certain responses by 5 July 2024, they would be withdrawing from the matter. The applicant apparently refused to accept the approach referred to in that letter.

20. [68]

    On 17 July 2024, the applicant complained to the Legal Services Commissioner and others concerning the solicitors’ and counsel’s handing of his matter.

21. [69]

    On 29 August 2024, the applicant’s solicitors, who by that stage had ceased to act for him, provided the applicant’s complete file electronically to new solicitors, although those solicitors do not appear to have been instructed to act for the applicant in relation to his appeal against conviction and sentence. We infer that the electronic file was provided to the applicant in gaol some time after 29 August 2024 and he was given a computer which allowed him to access the electronic file while in custody.

22. [70]

    During the three months between the beginning of September 2024 and 4 December 2024 while in gaol, the applicant prepared a notice of appeal and other documents and arranged for them to be filed on 4 December 2024. While this delay may have been the result of the applicant not being willing to accept the advice of his legal representatives, he was not obliged to accept that advice. Taking three months to prepare and arrange for the filing of his documentation while in custody is not a circumstance which bespeaks a significant lack of diligence on the part of the applicant. The grounds of appeal identified in that documentation appear to include a number of grounds not considered, or considered in detail, by counsel in their memorandum of 2 April 2024 and their letter of 18 May 2024 as well as grounds which they considered reasonably arguable. The three months was not an inordinately long time to take in all the circumstances.

23. [71]

    In our view, the applicant has provided an explanation for the delay in filing the notice of appeal and other documentation which is sufficient to justify the conclusion that leave to make the appeal and application for leave to appeal out of time should not be refused on the basis that there is no satisfactory explanation for the delay.

24. [72]

    In considering the prospects of success, the Court is required to review the merits of the proposed grounds of appeal but need only do so, where possible, on a "reasonably impressionistic level" or “in a fairly rough and ready way”. This is not only relevant to determining whether insisting on compliance with the applicable periods would work an injustice. It is also done, at least in part, to ensure that, reviewed in that way, proposed grounds of appeal that are not even arguable may be put to one side: Gould v R [2023] NSWCCA 103; 308 A Crim R 14 at [75]-[76] (Bell CJ with Rothman and Garling JJ agreeing). The further comments of the Chief Justice in Gould at [76] in this regard are also applicable in the present case. In that paragraph, his Honour continued:

25. [73]

    In the present case, we have already indicated that ground 12, the constitutional ground, should not be put to one side as “not even arguable”. In addition, a number of grounds which were considered by counsel who previously advised the applicant to be reasonably arguable are included in the grounds upon which the applicant now seeks to rely. We agree that they are reasonably arguable.

26. [74]

    Furthermore, there is an unreasonable verdict ground and a manifest excess ground as well as other grounds raising more specific complaints in relation to conviction and sentence. Reviewing such grounds at a "reasonably impressionistic level" and “in a fairly rough and ready way” to the extent that that is possible, we were not satisfied that they were so unarguable that the applicant should be denied the opportunity to argue those grounds if leave is granted in respect of other grounds that we are satisfied are reasonably arguable.

27. [75]

    In all the circumstances, there are grounds with sufficient prospects of success that it would be unjust if the applicant were denied the opportunity to have his appeal and application for leave to appeal heard.

28. [76]

    There was not said to be any relevant prejudice to the Crown if the applicant were granted leave to make his appeal and application for leave to appeal out of time. Nor was there said to be any adverse effect on the victim, or on the community generally, which would be occasioned by leave being granted. The absence of such factors that weigh in favour of refusing leave was, as we understood it, one of the reasons why the Crown’s position was that if any ground had sufficient merit, an extension of time would be appropriate to allow the Court to consider that ground. We did not discern any significant such prejudice or adverse effect if leave were to be granted.

29. [77]

    For these reasons, we have concluded that, in the particular circumstances of this case, the interests of justice require that the applicant have leave, under r 3.5(5) of the Criminal Appeal Rules, to make his appeal and application for leave to appeal out of time.

Orders

1. [78]

   In addition to granting leave under r 3.5(5), it will be appropriate to list the matter before the Registrar to obtain a date for hearing of the applicant’s appeal and application for leave to appeal and his release application.

2. [79]

   Accordingly, the orders of the Court are:

   1. (1)

      Pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), the applicant has leave to make his appeal and his application for leave to appeal in this matter out of time.

   2. (2)

      The applicant’s appeal, application for leave to appeal and his release application are listed before the Registrar on 24 July 2025 at 9:00am.