Judgment: 2019-05-31 · Court archive

Court of Appeal refuses late appeal application by man convicted of sexual offences

The court found no appeal ground with a realistic prospect of success and declined to extend the filing deadline, citing the delay and the complainant’s circumstances.

The Court of Appeal · [240/2017]

Who, what, where, when and why

Who
  • Faisal Ellahi (Appellant)
  • The complainant
What

The court found no appeal ground with a realistic prospect of success and declined to extend the filing deadline, citing the delay and the complainant’s circumstances.

Where

Places mentioned in the report

  • Prison
When

Judgment:

Other dates in the report
  • 18 December 2015; 14 March 2016; 27 June 2013; 3 November 2017

    Ellahi was convicted after a trial on 18 December 2015 and sentenced on 14 March 2016 to 13 years in prison, backdated to 27 June 2013. No appeal notice was filed within the prescribed time. An application to enlarge the deadline was lodged on 3 November 2017.

Why

Reasons reported in the judgment

In a judgment delivered on 31 May 2019, the court said it was not persuaded that any proposed appeal ground had a real prospect of success. It concluded that the justice of the case would not be served by allowing the late appeal.

The Court of Appeal has refused Faisal Ellahi’s application to extend the time for appealing his conviction and sentence for rape and sexual assault.

In a judgment delivered on 31 May 2019, the court said it was not persuaded that any proposed appeal ground had a real prospect of success. It concluded that the justice of the case would not be served by allowing the late appeal.

Ellahi was convicted after a trial on 18 December 2015 and sentenced on 14 March 2016 to 13 years in prison, backdated to 27 June 2013. No appeal notice was filed within the prescribed time. An application to enlarge the deadline was lodged on 3 November 2017.

In an affidavit, Ellahi said he had been overwhelmed by the verdict and sentence, had concerns about the trial judge’s conduct and was disappointed with his trial legal team’s advice. He said he later resolved to pursue an appeal with new solicitors. The court found the information before it supported the conclusion that he had been anxious to appeal, but said the case had not progressed with expedition.

The court considered the public interest in finality and the complainant’s interests. The Director of Public Prosecutions relied on reports describing the complainant as a woman with Down Syndrome and a mild intellectual disability, and detailing seizure-like episodes and the impact of the incident and trial on her quality of life. The Director also submitted that the defence account of a willing sexual encounter was difficult to reconcile with the complainant’s presentation.

The court had earlier given Ellahi a further opportunity to provide material showing an arguable appeal ground. It reviewed the trial judge’s interventions during Ellahi’s cross-examination after trial counsel criticised the judge’s attitude and tone. The court said the transcript did not establish improper conduct or a sustained pattern of interventions that would cause concern. It also said the prosecution evidence was compelling and the defence case strained credibility, while acknowledging the defence had no burden to prove anything.

Considering the length of the delay, the absence of a substantial appeal ground with a realistic prospect of success, and the complainant’s circumstances, the Court of Appeal refused the application. The judgment concerns only the request to extend the time for appeal; it does not decide an appeal against the conviction or sentence.

Read the original court judgment

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