MICHAEL JOSEPH LINDSAY v THE KING [2025] SASCA 105

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE SULAN; THE HONOURABLE JUSTICE BAMPTON) SCCRM-13-286; SCCRM-12-16 Applicant: MICHAEL JOSEPH LINDSAY Counsel: MR N VADASZ WITH MS H MARCH - Solicitor: VADASZ LAWYERS Respondent: THE KING Counsel: MR M FOUNDAS WITH MR S WHITTAKER - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 18/09/2025 File No/s: SCCRM-25-008862; SCCRM-25-027016; SCCRM-25-034853 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. LINDSAY v THE KING [2025] SASCA 105 Judgment of the Court of Appeal (ex tempore) (The Honourable Acting Chief Justice Livesey, the Honourable Justice David and the Honourable Auxiliary Justice Mullins) 18 September 2025 CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT In 2016, following a third trial by jury, the applicant was convicted of murder, contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA), and sentenced to life imprisonment with a non-parole period of 23 years. An appeal against conviction was dismissed by the Court of Criminal Appeal. In 2013, Sulan J had heard an application for an order that the applicant was mentally unfit to stand trial and held that the applicant was mentally fit to stand trial. The applicant now seeks permission to appeal against the ruling that he was not unfit to stand trial (the fitness ruling), permission to bring a “second or subsequent appeal” against his conviction for murder (the second or subsequent appeal), and permission to appeal against the non parole period of 23 years (the sentence appeal). The application to pursue the appeal against the fitness ruling is nearly 12 years out of time. The application to pursue the sentence appeal is nearly nine years out of time. Held (the Court), dismissing the application for an extension of time in which to seek permission to appeal against the ruling concerning the applicant’s fitness to stand trial, refusing permission to -- 1 of 12 -- pursue a second or subsequent appeal against conviction, and dismissing the application for an extension of time in which to seek permission to appeal against sentence: 1. There is no utility in an appeal against the fitness ruling. Following the third trial the question of the applicant’s fitness must be considered from the perspective of a miscarriage of justice, or substantial miscarriage of justice. 2. The expert opinion evidence is neither fresh nor compelling as s 159 of the Criminal Procedure Act 1921 (SA) requires. There is no merit in the application for permission to bring a second or subsequent appeal against conviction. There is no basis to consider whether there was a substantial miscarriage of justice. 3. There is no adequate explanation for the delay in pressing an appeal against the fitness ruling in 2013, nor against the sentence imposed in 2016. 4. Given the lack of merit in the proposed appeals, and the inadequate explanation for the long delays, the public interest in finality and against re opening long-running criminal litigation become important considerations. Criminal Law Consolidation Act 1935 (SA) ss 11, 269H, 269Y; Criminal Law Consolidation (Mental Impairment) Amendment Act 1935 (SA); Criminal Procedure Act 1921 (SA) ss 157, 159, referred to. Ames v The King (2023) 143 SASR 224; Brawn v The King (2025) 99 ALJR 872; Bugmy v The Queen (2013) 249 CLR 571; Eastman v The Queen (2000) 203 CLR 1; Gassy v The Queen [2023] SASCA 90; Grierson v The King (1938) 60 CLR 431; Kesavarajah v The Queen (1994) 181 CLR 230; Lindsay v The Queen (2015) 255 CLR 272; Lowe v The King [2025] SASCA 24; Muldrock v The Queen (2011) 244 CLR 120; Murphy (A Pseudonym) v The King [2023] SASCA 107; Norris v The King [2023] SASCA 24; R v Bromley [2018] SASCFC 41; R v Edwards (No 2) [1931] SASR 376; R v Keogh (No 2) (2014) 121 SASR 307; R v Lindsay (2013) 117 SASR 307; R v Lindsay (2014) 119 SASR 320; R v Lindsay (2016) 126 SASR 362; R v Pollitt (No 2) (2009) 104 SASR 99; R v Presser [1958] VR 45; Singh v The King [2025] SASCA 98; Van Beelen v The Queen (2017) 262 CLR 565, considered. -- 2 of 12 -- LINDSAY v THE KING [2025] SASCA 105 Criminal: Livesey ACJ, David JA and Mullins AJA THE COURT (ex tempore): Introduction 1 The applicant has applied for permission to appeal concerning three matters: 1. An application filed on 4 March 2025 pursuant to s 269Y of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) seeking permission to appeal against the ruling of Sulan J on 2 July 2013 that the applicant was not mentally unfit to stand trial (the fitness ruling); 2. An application filed on 27 August 2025 pursuant to s 159 of the Criminal Procedure Act 1921 (SA) (the CPA), seeking permission to bring a “second or subsequent appeal” against his conviction for murder, contrary to s 11 of the CLCA, following a trial before Bampton J and a jury on 30 March 2016 (the second or subsequent appeal); and 3. An application filed on 7 July 2025 pursuant to s 157 of the CPA, seeking permission to appeal against the non-parole period of 23 years imposed by Bampton J on 2 September 2016, backdated to commence from 19 May 2013 (the sentence appeal). 2 The application to pursue the appeal against the fitness ruling is nearly 12 years out of time, and the application to pursue the sentence appeal is nearly nine years out of time. The material filed in support of the applications for an extension is unsatisfactory and no real attempt has been made to explain the delay until the applicant’s present solicitors were retained during 2022. 3 For the following reasons, the applications for an extension of time and for permission to appeal should be refused. Brief background 4 The applicant’s murder of Mr Andrew Negre has been recounted in a number of decisions. Briefly, the applicant had been drinking at his home before he went to the Cove Tavern to buy more alcohol. He met Mr Negre and invited him home. They and others continued to drink. At some time after 3.45 am Mr Negre made a sexual overture which he described as a joke. A short time later the applicant invited Mr Negre to sleep in a spare bedroom. Mr Negre again made a sexual overture which prompted a vicious attack. This culminated in the applicant stabbing Mr Negre 15 or more times to the chest, killing him. -- 3 of 12 -- [2025] SASCA 105 The Court 2 5 Whilst another man, Mr Luke Hutchings, used a knife to cut Mr Negre’s throat, death was caused by the applicant’s stabbing. Mr Negre’s body was put into a bin and taken to a nearby reserve. 6 Between 12 and 21 June 2013, Sulan J heard an application pursuant to s 269H of the CLCA for an order that the applicant was mentally unfit to stand trial. The evidence established that the applicant had sustained two head injuries as a child and was left with marked cognitive impairment and was of lower-than- average intellectual capacity. Expert evidence suggesting that the applicant was not fit to stand trial was undermined by evidence which demonstrated that there was good reason to doubt the histories on which the experts had relied. This evidence concerned recordings of telephone conversations as well as interactions with the applicant over long periods.1 The psychologist, Mr Balfour, ultimately said that though the applicant was not unfit to stand trial, he would require breaks approximately every hour to facilitate consultation with his solicitors.2 7 There was no appeal against the fitness ruling made by Sulan J. 8 On 22 July 2013, a trial before a jury and Sulan J commenced and resulted in a verdict of guilty. Although the applicant did not give evidence, it was suggested that witnesses were mistaken about the applicant’s involvement in the killing. 9 On 3 October 2013, the applicant was sentenced by Sulan J to life imprisonment and a 23 year non-parole period was fixed. 10 The appeals against conviction and sentence were considered by the Court of Criminal Appeal on 20 November 2013. There was no issue raised about the fitness ruling by Sulan J. The principal question on appeal concerned the partial defence of provocation. The appeal against sentence concerned an argument about manifest excess having regard to the applicant’s age, Aboriginality and intellectual disability. Both appeals were dismissed in 2014.3 11 The High Court granted special leave to appeal and allowed the appeal against conviction on the issue of provocation in 2015.4 The conviction was set aside and a new trial ordered. 12 There was a second jury trial before Nicholson J in November 2015. The jury was discharged before the conclusion of that trial. 13 There was a third jury trial before Bampton J during March 2016. The applicant was again convicted of murder. On 2 September 2016, Bampton J sentenced the applicant to life imprisonment and fixed a non-parole period of 23 years. 1 R v Lindsay (2013) 117 SASR 307 (Sulan J). 2 R v Lindsay (2013) 117 SASR 307, [27]-[28] (Sulan J). 3 R v Lindsay (2014) 119 SASR 320. 4 Lindsay v The Queen (2015) 255 CLR 272. -- 4 of 12 -- [2025] SASCA 105 The Court 3 14 The applicant appealed his conviction, but not his sentence, to the Court of Criminal Appeal. No issue was raised about the applicant’s fitness to stand trial. That appeal was dismissed on 8 December 2016.5 An application for special leave to appeal to High Court was dismissed on 16 June 2017. 15 The affidavit evidence in support of the applications for an extension of time is, as mentioned, unsatisfactory. The evidence from Ms Shaw KC in her affidavit affirmed on 4 March 2025 explained that she was retained to argue the first appeal against conviction as well as the successful appeal in the High Court. She has no recollection of forming any views regarding the applicant’s fitness to stand trial. 16 The affidavit of Ms Lisa Olsson affirmed on 5 April 2025 addressed what has happened since the applicant’s present solicitors were retained during 2022. 17 The affidavits of Mr Peter Twiggs affirmed on 25 June and 17 September 2025 addressed his representation of the applicant from a time just before the fitness hearing before Sulan J. Mr Twiggs provided his affidavits from memory and without access to any records. He deposed that he has a memory that the medical witnesses “went back” on their statements and the final result was that the applicant was fit to stand trial. At that stage, Mr Boucaut KC and Ms Harvey acted for the applicant and represented him at the first trial. Ms Shaw KC and Mr B Doyle (now B Doyle J) then represented the applicant before the Court of Criminal Appeal and later the High Court. Ms Shaw KC and Mr G Lang represented the applicant at the second and third trials. Mr M Griffin QC with Mr S Henchliffe represented the applicant at the second appeal. Mr Henchliffe KC and Mr K Handshin (now Judge Handshin KC) represented the applicant at the second application for special leave to appeal. 18 Mr Twiggs deposed to a conference with Mr Henchliffe KC and the applicant at the Port Augusta prison in which the applicant was advised that there was “nothing else to do [or] be done”. Mr Twiggs deposed that during this time Mr Lindsay constantly rang his office regarding dealings with the Public Trustee who managed the applicant’s finances after the receipt of compensation for the applicant’s head injuries. Mr Twiggs said that no silk suggested an appeal against the fitness ruling. 19 In the affidavit of Mr Henchliffe KC made on 9 July 2025, he deposed that he was never asked to consider the question of fitness to stand trial or the fitness ruling. Mr Henchliffe KC deposed that he gave advice that there were no reasonable grounds to appeal against the length of the non-parole period set by Justice Bampton. His last involvement was sending a written opinion to Mr Twiggs on 10 April 2018 regarding the possibility of bringing a second appeal against conviction based on fresh evidence. The detail of that opinion is not provided. 5 R v Lindsay (2016) 126 SASR 362. -- 5 of 12 -- [2025] SASCA 105 The Court 4 20 There is no evidence from the applicant or any barrister or solicitor suggesting that the applicant encountered any difficulty participating in or understanding the 2016 trial. The proposed appeal against the fitness ruling under s 269Y of the CLCA 21 An appeal is purportedly brought pursuant to s 269Y of the CLCA: 269Y—Appeals (1) An appeal lies to the appropriate appellate court against a declaration that a defendant is liable to supervision under Division 3A or Division 4 Subdivision 2 in the same way as an appeal against a conviction. (2) An appeal lies to the appropriate appellate court against a supervision order in the same way as an appeal against sentence. (3) An appeal lies with the permission of the court of trial or the appropriate appellate court against a key decision by the court of trial. (4) A key decision is— (a) a decision that the defendant was, or was not, mentally competent to commit the offence charged against the defendant; or (b) a decision that the defendant is, or is not, mentally unfit to stand trial; or (c) a decision that the objective elements of an offence are established against the defendant. (5) On an appeal, the appellate court may exercise one or more of the following powers: (a) confirm, set aside, vary or reverse a decision of the court of trial; (b) direct a retrial of the case or an issue arising in the case; (c) make any finding or exercise any power that could have been made or exercised by the court of trial; (d) make ancillary orders and directions. 22 The application for permission to appeal against the fitness ruling is primarily concerned with whether the wrong legal test was applied by Sulan J. It is suggested that it was inappropriate to refer to the common law test in R v Presser,6 because the test in s 269H of the CLCA is different. It is also suggested that Sulan J failed to appreciate the probable complexity of the trial, amongst other matters. 23 After referring to the history of the law relating to fitness to stand trial,7 in his submissions the applicant addressed the history of the South Australian provision introduced during 1995.8 The applicant contended that there are differences 6 R v Presser [1958] VR 45 (Smith J). 7 Eastman v The Queen (2000) 203 CLR 1, [64] (Gaudron J), [399] (Callinan J). 8 Criminal Law Consolidation (Mental Impairment) Amendment Act 1995 (SA). -- 6 of 12 -- [2025] SASCA 105 The Court 5 between s 269H and the common law, principally relating to use of the words “rationally” and “rational”. Section 269H of the CLCA provides: 269H—Mental unfitness to stand trial A person is mentally unfit to stand trial on a charge of an offence if the person’s mental processes are so disordered or impaired that the person is— (a) unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or (b) unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or (c) unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings. 24 The applicant referred to a number of academic and international authorities concerning “rationality”.9 The applicant referred to a passage from the Victorian Law Reform Commission’s Consultation paper:10 The South Australian test for unfitness to stand trial incorporates the requirement of rationality in each criterion for fitness to stand trial. Section 269H of the Criminal Law Consolidation Act 1935 (SA) provides that an accused person is not fit to stand trial if they are unable to • understand, or to respond rationally to, the charge • exercise (or to give rational instructions about the exercise of) procedural rights, or • understand the nature of the proceedings, or to follow the evidence. 25 In addition, the applicant referred to the following passage from the Victorian Law Reform Commission’s Report - Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997:11 … [T]he current test is problematic when applied to an accused who has a mental illness and may have disordered or impaired mental processes as a result of delusions. For example, an accused who is delusional may be able to understand the trial process and 9 Australian Law Reform Commission, ‘Equality, Capacity and Disability in Commonwealth Laws’, (Report No 24, 2014) 73 [3.45]; Dusky v United States, 362 US 402 (1960); R v Friend [1997] 2 All ER 1011, 1018; Tasmanian Law Reform Institute, ‘Review of the Defence of Insanity in s 16 of the Criminal Code and Fitness to Plead’, (Report No 28, 2019), 32, 45; Victorian Law Reform Commission, ‘Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997’, (Report, June 2014), [3.42]; New South Wales Law Reform Commission, ‘People with cognitive and mental health impairments in the criminal justice system, Criminal responsibility and consequences’, (Report, 2013), [2.35]; Victorian Law Reform Commission, ‘Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997’, (Consultation paper, 2013), 63. 10 Victorian Law Reform Commission, ‘Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997’, (Consultation paper, 2013), [4.47]. 11 Victorian Law Reform Commission, ‘Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997’, (Report, June 2014), [3.41]-[3.42]. -- 7 of 12 -- [2025] SASCA 105 The Court 6 instruct their legal practitioner, but their capacity to make decisions may be impaired by delusional beliefs. They may believe that the trial is part of ‘benevolent divine plan and has no punitive purpose or effect’. In Australia, the current test may already require that the relevant criteria are exercised rationally, but this has not been expressly stated. In contrast, the test in the United States requires that the accused have the ability to instruct a lawyer with a reasonable degree of rational understanding. In Scotland, effective participation captures the notion of full or rational appreciation of the proceedings. The South Australian test for unfitness to stand trial explicitly incorporates the requirement of rationality. … (Citations omitted.) 26 When Sulan J addressed s 269H of the CLCA, he had regard to the common law, including the principles discussed in R v Presser by Smith J,12 and referred to the following passage from the decision of the High Court in Kesavarajah v The Queen:13 In Reg. v. Presser, Smith J. elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice. Those standards, which are based on the well-known explanation given by Alderson B. to the jury in R. v. Pritchard, require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise his right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge. (Citations omitted.) 27 We do not consider that the fitness ruling involved any error of law. Relatively recently, this Court said in Norris v The King:14 That section enshrines the common law test of fitness to stand trial as outlined by Smith J in R v Presser and subsequently approved by the High Court in Kesavarajah v The Queen and Ngatayi v The Queen. The purpose of the common law test was to ensure that a trial would not be rendered unfair by reason of a defendant’s inability to participate in the trial in an appropriate manner. (Citations omitted.) 28 In any event, there is no utility in granting permission to appeal under s 269Y(3) of the CLCA. Appeals under that provision are usually addressed before any substantive hearing of the charge. In circumstances where there have been three trials, and two appeals to the Court of Criminal Appeal where the question of fitness has not been raised, it is now too late to entertain for the first time an appeal pursuant to s 269Y of the CLCA. 12 R v Presser [1958] VR 45 (Smith J). 13 Kesavarajah v The Queen (1994) 181 CLR 230, 245 (Mason CJ, Toohey and Gaudron JJ), cited in R v Lindsay (2013) 117 SASR 307, [103] (Sulan J). 14 Norris v The King [2023] SASCA 24, [15] (Livesey P, Doyle and David JJA) and the cases there cited. -- 8 of 12 -- [2025] SASCA 105 The Court 7 29 Rather, and at least in theory, if the applicant had arguably been unfit to stand trial at his third and final trial, the question would have been whether there was a miscarriage of justice.15 However, because the second conviction appeal did not address that issue, it must be addressed under the provisions relating to second or subsequent appeals and whether there is scope to contend for a substantial miscarriage of justice.16 The proposed second or subsequent appeal under s 159 of the CPA 30 Apart from s 159 of the CPA, there is no jurisdiction to hear a second or subsequent appeal once an appeal has been dismissed on its merits.17 Section 159 provides: 269Y—Second or subsequent appeals (1) The Court of Appeal may hear a second or subsequent appeal against conviction by a person convicted on information if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal. (2) A convicted person may only appeal under this section with the permission of the Court of Appeal. (3) The Court of Appeal may allow an appeal under this section if it thinks that there was a substantial miscarriage of justice. (4) If an appeal against conviction is allowed under this section, the Court may quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial. (5) If the Court of Appeal orders a new trial under subsection (4), the Court— (a) may make such other orders as the Court thinks fit for the safe custody of the person who is to be retried or for admitting the person to bail; but (b) may not make any order directing the court that is to retry the person on the charge to convict or sentence the person. (6) For the purposes of subsection (1), evidence relating to an offence is— (a) fresh if— (i) it was not adduced at the trial of the offence; and 15 Which would be determined under s 158(1)(c) of the CPA according to the principles set out in Brawn v The King (2025) 99 ALJR 872, [9]-[11] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ) or, if the proviso was relied on, under the rubric of fundamental error or irregularity and substantial miscarriage of justice in s 158(2) of the CPA, Singh v The King [2025] SASCA 98 (Livesey P, S Doyle and Bleby JJA). 16 Under s 159 of the CPA in accordance with the principles discussed in Ames v The King (2023) 143 SASR 224, [46]-[50] (Livesey P, Bleby and David JJA). 17 R v Edwards (No 2) [1931] SASR 376, 378-380; Grierson v The King (1938) 60 CLR 431, 434 (Rich J); R v Pollitt (No 2) (2009) 104 SASR 99. -- 9 of 12 -- [2025] SASCA 105 The Court 8 (ii) it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and (b) compelling if— (i) it is reliable; and (ii) it is substantial; and (iii) it is highly probative in the context of the issues in dispute at the trial of the offence. (7) Evidence is not precluded from being admissible on an appeal referred to in subsection (1) just because it would not have been admissible in the earlier trial of the offence resulting in the relevant conviction. 31 It is a matter for this Court whether it hears the application for permission under s 159(2) together with, or separately from, the second or subsequent appeal.18 In this case, it is convenient to address only the question of permission. That is because the applicant has failed to adduce “fresh and compelling evidence”, as defined, being two of the three essential pre-requisites for a second or subsequent appeal. 32 The evidence relied on by the applicant concerns written opinions obtained from the psychologist, Mr Balfour, the psychiatrist, Dr Raeside, and the neuropsychologist, Mr Reid, during 2025 about the applicant’s need for breaks during the course of the third trial before Bampton J in 2016. 33 This evidence is not “fresh”. This evidence could, with reasonable diligence, have been adduced during the 2016 trial (s 159(6)(a) of the CPA). 34 In addition, the expert opinion evidence from Mr Balfour, Dr Raeside and Mr Reid is not “compelling” (s 159(6)(b) of the CPA). It was broadly to the effect that the applicant was likely significantly disadvantaged in his ability to follow the gist of the proceedings or the course of the evidence in 2016. To a significant extent, the expert opinion evidence depended on what was thought in 2013. It may be doubted whether the opinions expressed by Mr Balfour and others in 2013 necessarily applied to events in 2016. The issue of fitness to stand trial must usually be addressed at a time proximate to the trial. 35 However, even if the 2013 opinions remained relevant, the record of sitting times in 2016 demonstrated that on only seven or eight of 25 or 26 sessions did the court sit for longer than one hour. Most of the sessions were much shorter than one hour. 36 In addition, these opinions were expressed without any proper foundation. They were given without the opportunity to meet with the applicant and obtain a 18 Ames v The King (2023) 143 SASR 224, [46]-[50] (Livesey P, Bleby and David JJA). See also R v Keogh (No 2) (2014) 121 SASR 307; R v Bromley [2018] SASCFC 41. -- 10 of 12 -- [2025] SASCA 105 The Court 9 relevant history concerning the 2016 trial.19 As Mr Reid said, he could only raise “possibilities”. There was no evidence from the applicant or his solicitors or counsel to suggest that there were any difficulties encountered during the third trial before Bampton J. There is no record of counsel objecting to the course of the trial or seeking more frequent breaks from Bampton J. The suggestion that there were difficulties during the course of the third trial is really just speculation. 37 Whether the issue is considered from the perspective of the opinions obtained from Mr Balfour, Dr Raeside and Mr Reid, or by reference to the actual sitting times during 2016, the evidence is neither fresh nor compelling.20 It is doubtful whether it is in the interests of justice that this evidence should be considered on an appeal, which would be the applicant’s third appeal (s 159(1) of the CPA). 38 In these circumstances, there is no merit in the application for permission and there is no basis to consider whether there was a substantial miscarriage of justice. The application for permission to appeal sentence under s 157 of the CPA 39 The application for permission to appeal against sentence was initially concerned with three suggested errors. These were that Bampton J failed to apply the sentencing principles in R v Bugmy,21 failed to apply sentencing principles in Muldrock v The Queen,22 and, to the extent that these principles were applied, there was a failure to give adequate reasons explaining how they were applied. During the hearing, Mr Vadasz was given leave to argue manifest excess as well. 40 The sentencing remarks in this case demonstrate that there is no merit in the first three contentions. 41 The sentencing judge gave extensive consideration to the applicant’s personal circumstances, including his acquired brain injury and cognitive disabilities, together with his social difficulties within his family. She recognised that there was “no question” the applicant had “suffered social disadvantage in childhood and adolescence which has been compounded by your acquired brain injury”.23 As the sentencing judge explained:24 The material relied upon by you as establishing deprivation and the debilitating effects of your intellectual disability does not in the circumstances of your offending provide a basis to consider mitigation of sentence. It was also submitted that by reference to the decisions of this Court and the High Court that the fact of your intellectual disability or cognitive disability should be taken into account in determining the weight to be given to general deterrence. Having regard to all that has been submitted, I am satisfied this is not a matter where responsibility for the 19 Cf Murphy (A Pseudonym) v The King [2023] SASCA 107, [85]-[95] (Livesey P, Lovell JA and Buss AJA). 20 Van Beelen v The Queen (2017) 262 CLR 565, [28] (Bell, Gageler, Keane, Nettle and Edelman JJ). 21 Bugmy v The Queen (2013) 249 CLR 571. 22 Muldrock v The Queen (2011) 244 CLR 120. 23 AB, p 325. 24 AB, p 326. -- 11 of 12 -- [2025] SASCA 105 The Court 10 offence should be regarded as being reduced by reason of your cognitive disability, nor is this a matter at the lower end of the range of objective seriousness. You have shown no remorse for the senseless, unprovoked killing of a man in your home. In sentencing you I have had regard to all that has been submitted regarding your Aboriginality, your social disadvantage, the debilitating and limiting effects of your intellectual disability and interventions referred to by Mr Broomhall [a psychologist] that are required to assist your rehabilitation. 42 The sentencing judge took what might be described as the “Bugmy factors” into account, together with the applicant’s intellectual or cognitive disabilities, and explained how they affected her determination regarding the appropriate non-parole period. 43 As for the question of manifest excess, we are not satisfied that the issue is reasonably arguable given the circumstances of the offender and the offending. The offending, whilst not pre-meditated, was brutal and violent. The personal circumstances of the offender were not all mitigatory and the protection of the safety of the community was an important consideration. The applications for an extension of time 44 When considering an extension of time, the Court will usually consider the length of the delay, the reasons for the delay, the impact on the public interest of re-opening the court’s decision and the merits of the proposed grounds.25 45 There is no adequate explanation for the delay in pressing an appeal against the fitness ruling in 2013, nor against the sentence imposed in 2016. 46 Given the lack of merit in the proposed appeals, and the inadequate explanation for the long delays, the public interest in finality and against re-opening this long-running criminal litigation become important considerations.26 Conclusion 47 The application for an extension of time in which to seek permission to appeal the ruling about the applicant’s fitness to stand trial under s 269Y of the CLCA should be dismissed. 48 The application for permission to pursue a second or subsequent appeal against conviction under s 159 of the CPA should be dismissed. The application for an extension of time in which to seek permission to appeal against sentence under s 157 of the CPA should be dismissed. 25 Gassy v The Queen [2023] SASCA 90, [97]-[100] (Livesey P, David JA and Stein AJA). 26 Lowe v The King [2025] SASCA 24, [76] (Livesey P, David JA and B Doyle AJA). -- 12 of 12 --