CATCHWORDS

CRIMINAL LAW - Appeal from ACT Supreme Court as to conviction after plea of guilty - application for leave to extend time to file appeal - special reasons - absence of interpreter at conviction - asserted defence of provocation - delay of 5 years - whether sufficient grounds to grant leave.

Federal Court Rules, O52 r15

Gallo v Dawson (1990) 93 ALR 479

Jess v Scott (1986) 12 FCR 187

Jones v The Queen, (unreported) Federal Court, 17 August 1984

LAZAR KALABA v THE QUEEN

No ACT G14 of 1996

FINN J

CANBERRA

13 SEPTEMBER 1996

IN THE FEDERAL COURT OF AUSTRALIA)

                                  )

AUSTRALIAN CAPITAL TERRITORY      )

                                  )    No. ACT G 14 of 1996   DISTRICT REGISTRY                )

                                  )

GENERAL DIVISION                  )

                   BETWEEN:  LAZAR KALABA

                                      Appellant

                       AND:  THE QUEEN

                                       Respondent

COURT:    FINN J.

PLACE:    CANBERRA

DATE:     13 SEPTEMBER 1996

               EX TEMPORE REASONS FOR JUDGMENT

     This is an application for leave to file and serve a notice of appeal under O52 r15(2) of the Federal Court Rules.  The applicant, Mr Kalaba, was charged with two counts of arson in mid-1991.  The first of these related to a fire he lit in the lift of the Law Society Building, the second to his incineration of a car in the carpark adjacent to the Office of the Department of the Prime Minister and Cabinet. 

     On 23 August he appeared before Miles CJ of the ACT Supreme Court and entered pleas of guilty in respect of both counts.  On 27 August 1991 his Honour sentenced Mr Kalaba to an effective term of 5 years imprisonment.  Reasons were given

at the time.  I note in passing that that sentence has now been served in full and the applicant has been released from custody.  I would also note both that he was legally represented at the hearings before Miles CJ and that when he raised the issue of an appeal against the sentence he was advised against so doing by his then solicitor.

     The grounds of the present application are contained in one of the affidavits Mr Kalaba has filed in the proceedings.  It is not altogether clear what is the substance of the appeal, ie whether it is an appeal against sentence only - for which there could be no purpose at all now - or is an appeal against conviction.  The application itself refers merely to an:

     "appeal from the judgment of Chief Justice Miles given on 27th August 1991 at the Supreme Court Canberra, ACT."

     In his affidavit of 5 June, which contains the latest iteration of the matters referred to in O52 r15(6), Mr Kalaba identifies the questions involved in the appeal as:

     "both matters of law fact [sic], and I am claiming a miscarriage of Justice and an unsafe and unsatisfactory verdict."

     I have allowed the application to proceed before me on the basis that the appeal is, as well, an appeal against conviction.  Mr Kalaba in his submissions has asked me so to treat it.

     The substantive grounds he would seem to wish to raise against his conviction are as follows:

     "I offered no Defence to the charges bought against me by the crown.  I was provoked into the crimes of which I was found guilty.  The provocation was so great that it would cause any reasonable man to commit the same offences as me."

     The particular matters upon which Mr Kalaba intends to rely in support of this are (i) what he describes as the harassment by police of him and his family leading to his conviction for assault and malicious damage in the Magistrates Court at Wagga Wagga;  and (ii) the alleged falsification of documentation by the Department of Foreign Affairs concerning his incarceration in a concentration camp during World War II with the apparent consequence that he has been improperly denied compensation and a war pension.  There is a related claim he has been cheated of $6 million in reparation money allegedly paid by the Yugoslav Government to the Commonwealth Government.

     A separate ground of challenge to the conviction is based upon what he alleged to be his poor facility in English and his corresponding right under international law to an interpreter:

     "My English is very poor and I have had no assistance in this appeal and I was relying on Legal Aid both for assistance to lodge the appeal to your court by the specified date.

     (d)  According to article 14 subsection 3(a) of the International covenant, for civil and political rights which state:- all are guaranteed the right to be informed promptly and in detailing a language which he understands, of the nature and cause of the charge against him...

     Therefore should a non-English speaking citizen be arrested, an interpreter should be provided to hear the charge and answer any question subsequently put to him.  this was not done, therefore the arrest and questioning that took place on 28th May 1991 was in direct contravention of this article and possibly even illegal.

     (e)  As described above, The same situation occurred while my trial was being conducted, a situation which I would view as even more a serious breach of the above regulations, and a further embarrassment to the Australian Justice system.

     See also article 14 Subsection 3F of the International covenant for Civil and Political rights, Which Stated: - To have free assistance of an interpreter if he cannot understand, or speak the language used in court.

     How could my trial be fair and in accordance with this article when I did not have an interpreter and not one question was of me as to:

          *    Why I committed the offence.

          *    What provoked me to commit the offence.

          *    Why I retaliated in the way that I did.

          *    Generally I was not asked any question which could have been asked in my defence and therefore I lost any chances of defending myself and possibly abtaining an acquital."

     As O52 r15(2) indicates, the grant of leave to file and serve a notice of appeal out of time requires the making out of "special reasons".

     As the Full Court of this Court said in Jess v Scott (1986) 12 FCR 187 at 195:

     "It should not be overlooked that r15(2) enables leave to be given 'at any time';  the 'special reasons' relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period.  It would require something very persuasive indeed to justify a grant of leave after, for example, a year;  equally, it may be said, somethng much less significant might justify leave where a party is a few days late.  'Special reasons' must be understood in a sense capable of accommodating both types of situation.  It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served."

A like view on the burden created by the passing of time is expressed in the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479.

     For present purposes the approach I intend to take is that adopted by the Full Court of this Court in Jones v The Queen, (unreported) Federal Court, 17 August 1984, and to ask:

     "First, are the reasons the applicant has advanced for his delay sufficient to excuse or, at least, to explain his delay so as to justify allowing him to institute an appeal out of time?  Secondly, has the applicant demonstrated that his appeal may have sufficient prospect of success to make it just that he should now be allowed to proceed with it?  (See Sukarno v Minister for Immigration and Ethnic Affairs, unreported decision of the Full Court 29 June 1984 at p.2.)."

     Before turning to these matters directly I would note that counsel for the respondent by way of preliminary point submitted that Mr Kalaba's ground of appeal in fact raised a case which sought to have the plea of guilty set aside and, so conceived, the present application should be regarded as incompetent.  The appropriate method, it was said, to set aside the plea was by way of proceedings in the Supreme Court of the ACT to that effect.

     It is the case that an appeal can be brought against conviction notwithstanding a guilty plea:  see Halsbury's Laws of Australia, Criminal Law 130-13975 and see the cases referred to in fn 5;  see also Archbold, Criminal Pleading Evidence and Practice s366, 40th Ed, Sweet and Maxwell.  I am not prepared for present purposes to hold that an appeal in this matter would be incompetent on jurisdictional grounds.

     Turning now to the two questions I have posed.  The only explanation given by Mr Kalaba for the delay is that, and I here quote from his affidavit of 5 June 1996:

     "(c)When I was sentence on the 27th August 1991 on the same day and about two hours after my sentencing I asked Mr Pilkington my solicitor to lodge an All Grounds Appeal on my behalf.  Mr Pilkington refused to do this until I had paid him $1000 which I did not have at that time.  I submit to the Legal Aid Commission of NSW an application for Legal Aid together with a complete form of appeal to the Federal court of Australia.  I have still not heard from legal aid."

He has suggested that the Legal Aid Commission may have had difficulty contacting him because of the circumstances of his frequent movement between prisons or places of detention.  Mr Kalaba made no further legal application until late 1995 - this time to the ACT Legal Aid Review Committee.  It was refused.

     If it were necessary so to do I would be prepared to hold that, as no satisfactory explanation at all of so long a delay has been given, this of itself would be sufficient to defeat this application.

     I am, however, of the view that the second question I have posed should also be answered in the negative.  At the time of the hearings before Miles CJ, Mr Kalaba had legal representation as I have already noted.  It did not then seem to his advisers necessary that he have the interpreter facility made available to him.  I am not convinced that there is evidence before me to suggest that on full investigation, the absence of interpreting services may have worked such unfairness to Mr Kalaba as could lead to the setting aside of his conviction.

     The matters of provocation raised are, in my view, equally ones which could not justify the setting aside of the convictions.  Indeed I think it is appropriate to note that in his sentencing comments Miles CJ after referring to his compensation claim and the Wagga Wagga convictions commented of Mr Kalaba that:

     "He regards himself as having exhausted all legal channels in relation to his compensation claim, and now resorts to extra-legal methods of promoting his cause.  In this particular respect, he is no different from any other, who uses such extra-legal means to promote a cause, whether it be personal, political, financial or otherwise.  To resort to crime in order to promote personal causes is not normally regarded as a mitigating factor."

     Little purpose would be served in my view in granting the extension simply for the purpose of allowing these defences to be agitated before an appellate court.  They would not be likely to have any effect on the conviction.  In consequence I do not consider that Mr Kalaba has shown such sufficient prospect of success as to make it just that he should now be allowed to proceed with an appeal.

     Accordingly, I dismiss this application.

                                  I certify that this and the preceding 7 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

                                  Associate

                                  Dated:   14 October 1996

Lazar Kalaba appeared in person.

Counsel for the respondent:  K Archer

Solicitor for respondent:    ACT Department of Public Prosecutions

Date of hearing:             13 September 1996

Date of judgment:            13 September 1996