JUDGMENT OF: Pearce J, Brett J and Cuthbertson J

Criminal law - Appeal and new trial - Procedure - Power to bring appeal - No appeal from sentence passed on appeal by Court of Criminal Appeal to a differently constituted Court of Criminal Appeal.

Stewart v The King [1921] HCA 17; (1921) 29 CLR 234

Grierson v The King [1938] HCA 45; (1938) 60 CLR 431

Elliott v The Queen [2007] HCA 51; 234 CLR 38

Burrell v The Queen [2008] HCA 34; 238 CLR 2018

Lacey v A-G (Qld) [2011] HCA 10; 242 CLR 573

DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 referred to.

Judgment Number: [2025] TASCCA 5

DIRECTOR OF PUBLIC PROSECUTIONS v NIKIYA LEE COLEMAN

1. Application to extend time for appeal refused for want of jurisdiction.

DIRECTOR OF PUBLIC PROSECUTIONS v NIKIYA LEE COLEMAN

1. On 30 August 2024 this Court, differently constituted, allowed an appeal against the respondent's convictions for murder and unlawfully setting fire to property. After quashing the convictions the Court re-sentenced the respondent for the remaining charges on the same indictment of which the respondent was also found guilty but which were not subject to the appeal. In imposing the sentence the Court allowed a discount on the basis that the respondent would co-operate by giving evidence for the prosecution in the trial of two other persons charged with the same crimes.
2. The appellant has filed a notice of appeal asserting that the promised co-operation was not given and, as a result, the sentence was manifestly inadequate and should be increased. The appellant applies for an extension of time to bring the appeal. An appeal on that ground involves questions of fact alone, or mixed questions of fact and law, and thus may be brought only with the leave of the Court: Criminal Code, s 401(1)(b).
3. The question first arises whether a Court of Criminal Appeal has jurisdiction to determine an appeal against a sentence ordered by a differently constituted Court of Criminal Appeal. In my view, for the following reasons, it does not.
4. The respondent, after a trial conducted by Jago J with a jury, was found guilty of burglary, aggravated burglary, aggravated armed robbery, murder and unlawfully setting fire to property. She was acquitted of a charge of stealing. The charges were separate counts on a single indictment in which the respondent was jointly charged with Mitchell Flanigan. Following the guilty verdicts the learned trial judge convicted the respondent on each of the charges and imposed a global term of imprisonment of 16 years with a non-parole period of 8 years.
5. It was the prosecution case at trial that on 23 January 2022 the respondent went with Mr Flanigan and two other men, Blaise Baddeley and Dane Pyke, to premises at Spreyton in Tasmania intending to break in and steal. The owner and occupier of that property, Dean Jupp, was present. Mr Jupp died as a result of multiple serious injuries which were inflicted upon him. The prosecution alleged that one or more of those four persons killed Mr Jupp and that, regardless of who inflicted the fatal blow or blows, each accused was criminally responsible by operation of the Criminal Code, s 3 or s 4. Mr Baddeley and Mr Pyke were separately indicted and were to be tried following the trial of the respondent and Mr Flanigan.
6. In the appeal against her convictions for murder and unlawfully setting fire to property the respondent contended that the verdicts on those two counts were "unsafe and unsatisfactory" and inconsistent with Mr Flanigan's acquittal on those charges. The respondent also appealed the sentence on the sole ground that it was "manifestly excessive". The Court of Criminal Appeal which heard and determined the respondent's appeal was constituted by Estcourt J, Martin AJ and Marshall AJ. Reasons were published to the parties on 30 August 2024. The Court allowed the appeal against conviction on the two counts which were the subject of the appeal. It ordered that those convictions be quashed and verdicts of acquittal entered.
7. As a result of the acquittals the sentence was set aside and the Court of Criminal Appeal re-sentenced the respondent. After canvassing factors relevant to sentence, Martin AJ, with the agreement of the other members of the Court, determined that the respondent should serve a term of imprisonment of three years and six months from 21 February 2022 and that she "not be released until she has served 1 year and 9 months of that sentence". By those words I assume that his Honour intended to convey that the respondent not be eligible to apply for parole until she had served one year and nine months of the term imposed.
8. One of the matters taken into account by the Court of Criminal Appeal in determining the sentence to be imposed was an indication which had earlier been given by the respondent that she would co-operate with the prosecution authorities and give evidence at the trial of Mr Pyke and Mr Baddeley. She was interviewed by the police after her arrest and made statements which were relevant to the roles respectively played by Mr Baddeley and Mr Pyke which assisted the prosecution case against those men. In the sentencing proceedings before the trial judge, the respondent's counsel referred to the respondent's hesitation in giving evidence for fear of reprisal but, after taking specific instructions, she made the following submission:

"My instructions are that Ms Coleman will give evidence, and cooperate at the trial, as well as the fact that there is the interview. I've explained to Ms Coleman that if she then does not go on and cooperate at the trial, that she is at risk of whatever portion your Honour discounts for cooperation to be placed on top of the sentence that she receives, through an appeal process. So she's aware of the consequences if she does not cooperate, but has indicated her willingness to cooperate at the future trial of Mr Pyke and Mr Baddeley?"

1. In his Honour's reasons for decision in the Court of Criminal Appeal, Martin AJ said:

"In addition, the appellant's frank co-operation with authorities stands in contrast to Mr Flanigan's attempts to downplay his role and knowledge, and the evidence to be given by the appellant will be of greater value to the authorities than that of Mr Flanigan. I would allow a reduction of 30% in recognition of the appellant's co-operation with the authorities in giving evidence against Mr Pyke and Mr Baddeley.

After allowing a reduction of 30%, I would impose a sentence of imprisonment for 3 years and 6 months commencing 21 February 2022 and order that the appellant not be released until she has served 1 year and 9 months of that sentence".

1. It follows that, without the 30 per cent reduction in sentence referred to by Martin AJ, the sentence imposed on the respondent by the Court of Criminal Appeal would have been a term of imprisonment of five years. The Court of Criminal Appeal allowed the respondent the earliest opportunity to apply for parole and gave no indication that a different course would have been taken had the sentencing discount not been allowed.
2. The appeal which the appellant seeks to advance is on the following ground:

"The single substitute sentence of imprisonment ... ordered by the Court of Criminal Appeal on 30 August 2024 was manifestly inadequate in all the circumstances of the case, including the recognition of the respondent's co-operation with the authorities in giving evidence on the trial of Dane Ronald Pyke and Blaise Christopher Baddeley on indictment 229 0f 2023 when she refused to co-operate."

1. What is asserted by the appellant in this appeal is that, although the respondent gave evidence at the trial of Mr Pyke and Mr Baddeley, it was not truthful evidence and did not amount to the co-operation she had promised. In her evidence she claimed that the statements she made in her police interview were not true, or that she had no memory of relevant facts. A challenge to a sentence of that nature is to be determined in accordance with the principles stated in this State in R v Stanley (1998) 7 Tas R 357, Director of Public Prosecutions v Dunne [2021] TASCCA 5 and Brennan v Tasmania [2022] TASCCA 7, and elsewhere in R v J [1992] SASC 3639; 59 SASR 145, R v James [2014] NSWCCA 311, R v X [2016] NSWCCA 265, R v Haklar-McCarthy; R v Summerill [2017] SASCFC 129, 129 SASR 1 and Director of Public Prosecutions v Connally [2010] VSCA 301. In substance, the error asserted in such appeals is that the challenged sentence was imposed upon the erroneous factual assumption that a respondent would cooperate by giving truthful evidence.
2. There is no common law right of appeal: Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573 at [8]. The existence of a right of appeal depends on statute and it is the terms of the statutory grant of a right of appeal which determines its nature: Elliott v The Queen [2007] HCA 51; 234 CLR 38. In Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 the High Court held at 435 that the New South Wales Court of Criminal Appeal, in the appellate system established in that State by the Criminal Appeal Act 1912 (NSW), had no further authority beyond that found in the statute. As to that appellate system, the High Court stated in Stewart v The King [1921] HCA 17; (1921) 29 CLR 234 at 240 that the Act did not create or constitute a new Court distinct from the Supreme Court, but merely directed that the Supreme Court shall act as the Court of Criminal Appeal. In Grierson it was decided that the Criminal Appeal Act did not confer jurisdiction to re-open an appeal which had been heard on the merits and finally determined. As was explained in Burrell v The Queen [2008] HCA 34; 238 CLR 2018, Grierson was followed by the High Court on a number of occasions including in Elliott. The question in Burrell also concerned the power of a superior court of record to re-open a proceeding and reconsider the orders that have been made. The majority stated at 225 [22], citing and quoting from DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 at 247, that "if the Court had power to reopen the appellant's appeals and reconsider the orders it had made, that power 'must be found in the text of the governing statutes and any express or implied powers found therein'".
3. This appeal may be distinguished from the series of High Court cases to which I have referred which deal with an application to re-open an appeal, and from cases considering whether a court of appeal has jurisdiction to entertain a second appeal, or an application for leave to appeal, from conviction in circumstances where leave to appeal had previously been refused after a hearing on the merits. See the recent analyses of the authorities undertaken by the Victorian Court of Appeal in Visser v R [2023] VSCA 10 and by the Court of Criminal Appeal in New South Wales in Gould v R [2023] NSWCCA 103. What is sought to be advanced in this case is an appeal, in the nature of a separate proceeding, against the sentence imposed by the Court of Criminal Appeal following determination of an appeal. It is not an application that the order of sentence made in the appeal be re-opened and changed or corrected. Assuming that the Court's order in the first appeal was perfected, Grierson and the cases which follow it, make clear that the exercise of judicial power in that appeal was spent. However, the principles stated by the High Court guide an assessment of the nature of and limits on the jurisdiction of the Court of Criminal Appeal. The result is that the question of whether an appeal may be brought to this Court against the sentence passed by the Court of Criminal Appeal in the respondent's first appeal is determined by the terms of the legislation from which the right to appeal is said to derive.
4. In this State the Court of Criminal Appeal is constituted by Chapter XLVI of the Code. The definition section is s 399. It provides that the "Court" means the Court of Criminal Appeal and the "court of trial" means "the court before which an accused person has been tried upon an indictment, or the court which passed sentence upon a plea of guilty". The term "sentence" is defined as including any order made "by the court of trial" for the keeping in custody of any person convicted, with reference to property or with reference to any moneys to be paid by a person convicted.
5. Section 400 of the Code is entitled "Court of Criminal Appeal" and provides:

(1) The Court of Criminal Appeal is duly constituted for the purpose of exercising any of its jurisdiction if it consists of 3 or more judges of the Supreme Court, but, in relation to any particular appeal, may be duly constituted by only 2 such judges if none of the parties to the appeal objects to the Court being so constituted for the purpose of hearing the appeal.

(2) The determination of any question before the Court shall be according to the opinion of the majority of the judges, or in case the judges are equally divided, according to the opinion of the Chief Justice, or in his absence, of the Senior Judge.

(3) The Court shall be a superior court of record, and shall, for the purposes of, and subject to the provisions of, this chapter, have full power to determine in accordance with this chapter any question necessary to be determined for the purpose of doing justice in any case before the Court.

(4) The Associate Judge of the Supreme Court is to be an Associate Judge of the Court.

(5) The Registrar, the Deputy Registrar, and the Assistant Deputy Registrar of the Supreme Court shall, respectively, be the Registrar, the Deputy Registrar, and the Assistant Deputy Registrar of the Court.

(6) Subject to the Rules of Court, the Deputy Registrar or the Assistant Deputy Registrar of the Court may exercise any of the functions conferred by this Act or otherwise on the Registrar, and any act or thing done by or before the Deputy Registrar or the Assistant Deputy Registrar of the Court has the same force and effect as if it were done by or before the Registrar.

1. I do not see that these provisions require a different approach than that which is to be applied in New South Wales under the Criminal Appeal Act (NSW). As in New South Wales, the Code directs that judges of the Supreme Court act as the Court of Criminal Appeal. It is a court of superior record.
2. The basis upon which the Court of Criminal Appeal re-sentenced the respondent is, with respect, not entirely clear. Martin AJ, at [79]-[80] of his Honour's reasons said:

"The appellant also appealed against the sentence of imprisonment for 16 years, with a non-parole period of 8 years, on the sole ground that it was manifestly excessive. Ultimately, in substance, counsel for the appellant conceded that if the conviction for murder was not set aside, she would have significant difficulty in persuading the Court that either the sentence or the non-parole period were manifestly excessive. That concession was rightly made.

In re-sentencing, in my view, it is appropriate to impose a single sentence for the crimes of burglary, aggravated burglary and aggravated armed robbery."

1. If, in the passage just quoted, it was the Court's intention to convey that the power to re-sentence the respondent derived from the ground of appeal that the sentence was manifestly excessive, I would respectfully disagree. The sentencing judge imposed, in accordance with the Sentencing Act 1997, s 11(1)(a), a single sentence for five offences. Once the convictions for murder and unlawfully setting fire to property were quashed it was unnecessary and inappropriate to consider the appeal against sentence. The single sentence which was imposed for offences which included those counts could no longer stand as a matter of law. Thus, the powers of the Court in the terms stated in s 402(4), (4A), (4B), (4C) and (4D) of the Code on hearing an appeal against sentence had no application. The power for the Court of Criminal Appeal to re-sentence the respondent derived from s 403(1) which provided:

"If it appears to the Court that an appellant, though not properly convicted on some count or part of the indictment has been properly convicted on some other count or part of the indictment, the Court may either affirm the sentence passed at the trial or pass such sentence, whether more or less severe, in substitution therefor, as it thinks proper, and as may be warranted in law by the conviction on the indictment or part thereof on which it considers the appellant has been properly convicted."

1. It was also open to the Court of Criminal Appeal to refer the case to the trial judge in accordance with s 403(3A) which provided:

"Where under the foregoing provisions of this section the Court has power to affirm, or to pass a sentence in substitution for, a sentence passed on a person at his trial it may, instead of exercising that power, refer the case to the trial judge, and, on the case being so referred to him, that judge may himself exercise that power as if he were the Court; and any power exercised by a judge under this section has the like effect as if it were exercised by the Court."

1. The right of appeal against sentence is provided for by the Code, s 401, in the following terms:

"(1) A person convicted before a court of trial may appeal to the Court -

(c) against the sentence passed on his conviction, unless the sentence is one fixed by law.

(3) For the purposes of subsection (2)(c), sentence, in relation to -

(a) a person convicted on indictment, includes an order under the Sentencing Act 1997 ; or

(b) a person convicted under the provisions of section 331C, includes an order under the Sentencing Act 1997."

1. The reference in s 401(2) to the Attorney General includes an officer appointed to prosecute in any criminal proceedings. Other than in subs (3), the terms of s 401 do not further explain the reference in subs (2)(c) to "the sentence". The appellant submits that the meaning is thus not confined to a sentence imposed by a court of trial. However that submission cannot be accepted. When s 401(2)(c) is read in the context of the appellate system created by Chapter XLVI, with particular regard to s 401(1)(c) and the definition of sentence in s 399, it could only mean the sentence passed on conviction before a court of trial. The reference to "the sentence" in sub-section (2)(c) is a reference back to the sentence in sub-section (1)(c). The definition in s 399 is an inclusive, rather than an exclusive, definition, but nevertheless focusses attention on the sentence imposed by a court of trial. Much the same can be said of the reference to "sentence" in s 402(3), which does not advance the appellant's submission.
2. The principal submission of counsel for the appellant on the jurisdictional question relies on the reference in s 402(4) to the power to, on an appeal against sentence, "pass another sentence in substitution therefor". For reasons already stated the reliance on s 402(4) is misplaced, but s 403(1) also refers to passing a sentence "in substitution for" the sentence passed at the trial. It was submitted that the result is that the sentence imposed by the Court of Criminal Appeal replaces, or is to be substituted for, the sentence imposed by Jago J, but in such a way that the right to appeal exists as it would have in respect to the sentence first imposed by the judge at trial. In support of that construction of the legislation the appellant also relies on the terms of s 400(3) which refer to the Court having "full power to determine any question necessary to be determined for the purpose of doing justice in any case." However, s 400(3) does not support the appellant's submission. It is to be read in full. It provides:

"(3) The Court shall be a superior court of record, and shall, for the purposes of, and subject to the provisions of, this chapter, have full power to determine in accordance with this chapter any question necessary to be determined for the purpose of doing justice in any case before the Court."

1. The power granted by that sub-section to do justice in any case is expressed to be "subject to the provisions of chapter" and the power is to be exercised "in accordance with this chapter". The provision does not, as was suggested by the appellant, create some broader implied or inherent power to do justice. The statutory power remains confined by the terms of Chapter XLVI. The submission that use of the words "in substitution for" the sentence passed by the court of trial means that the right of appeal exists as if the sentence passed by the Court of Appeal were the sentence passed by the trial judge must be rejected. The sentence which the appellant seeks to challenge in this appeal was passed by the Court of Criminal Appeal, not the court of trial, although it was passed in substitution for the sentence passed by the court of trial. If the appellant's submission was correct the result would be that a person, whether the person convicted or the Attorney-General, who asserted error in a sentence imposed by the Court of Criminal Appeal in substitution for a sentence imposed by a court of trial in any of the circumstances contemplated by Chapter XLVI of the Code, would retain the right to appeal to the Court of Criminal Appeal, the same intermediate court of appeal which imposed the sentence. That scenario is contrary to the intention and purpose of the legislation. It would lead to the absurd possibility of perpetual appeals and destroy the principle of finality.
2. Without deciding the question, the situation might have been different if the Court of Criminal Appeal had referred the re-sentence in accordance with s 403(3A) and the sentence under challenge had been imposed by the trial judge. That question requires a further analysis of the terms of s 403(3A) which is not required in this case because a different course was taken. Unlike some other jurisdictions, in this State there is no legislative provision which specifically permits the reconsideration of a sentence where it has been established that the offender has failed to comply with an undertaking of cooperation.
3. For those reasons I would conclude that this Court is without jurisdiction to determine this appeal. The grant of an extension of time would be futile. In my view the proper order is, because the Court is without jurisdiction to determine the appeal or an application for leave to appeal, that the application to extend the time within which notice of appeal, or notice of an application for leave to appeal, may be given, should be refused.

DIRECTOR OF PUBLIC PROSECUTIONS v NIKIYA LEE COLEMAN

1. I have read the Reasons for Judgment of Pearce J, with which I agree. I also agree with the order proposed by his Honour.

DIRECTOR OF PUBLIC PROSECUTIONS v NIKIYA LEE COLEMAN

1. I agree with the reasons of Pearce J. I also agree with his Honour's orders.