Criminal law and procedure - Application for leave to withdraw notice of discontinuance of appeal against conviction - Applicant pleaded guilty to four charges involving possession and importation of narcotic goods - Applicant appealed against two of his convictions - Applicant lodged notice of discontinuance of appeal after receiving legal advice that his appeal lacked merit - No jurisdiction to grant leave to withdraw notice of discontinuance unless notice was a nullity - Whether notice of discontinuance was a nullity - Test to be applied - Notice of discontinuance is not a nullity when lodged on basis of legal advice as to prospects of success of appeal which is now considered to be wrong - Turns on own facts

Criminal Procedure Rules 2000 (WA), r 66

Application for leave to withdraw notice of discontinuance dismissed

Respondent : Commonwealth Director of Public Prosecutions

Bridges v The Queen (1998) 20 WAR 59

Hastie v The Queen [1981] WAR 365

R v Hipworth [1987] 1 Qd R 360

R v Johnson (1992) 57 A Crim R 290

R v Medway [1976] QB 779

Turan v The Queen (1990) 2 WAR 140

Evans v The Queen [2003] WASCA 194

He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523

Johnson v The Queen [2002] WASCA 102; (2002) 26 WAR 336

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264

Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502

R v El Hassan (2001) 126 A Crim R 477

R v La Rosa (1999) 105 A Crim R 362

R v Lee (1990) 1 WAR 411

R v Mai (1992) 26 NSWLR 371

R v Saad (1985) 19 A Crim R 170

R v Sleiman (No 1) (1993) 113 FLR 30

R v Sleiman (No 2) (1993) 113 FLR 34

1 MURRAY J: The reasons published by Steytler J express completely for me the reasons why I joined in the dismissal of this application when it was heard.

2 STEYTLER J: This is an application for leave to withdraw a notice of discontinuance of an appeal.

3 The applicant was charged, on indictment, with four offences under the Customs Act 1901 (Cth). These were framed as follows:

"1. Between 2 September 2002 and 5 September 2002 at Perth in the State of Western Australia ... [the applicant] imported into Australia a prohibited import to which section 233B of the Customs Act 1901 applied, namely narcotic goods consisting of a quantity of cannabis resin ... contrary to paragraph 233B(1)(b) of the said Act.

2. AND FURTHER THAT on 5 September 2002 at Perth ... [the applicant] had in his possession prohibited imports to which section 233B of the Customs Act 1901 applied, namely narcotic goods consisting of 3,4-Methylenedioxymethamphetamine, commonly known as ecstasy ... contrary to paragraph 233B(1)(c) of the said Act.

3. AND FURTHER THAT on 5 September 2002 at Perth ... [the applicant] attempted to commit an offence against paragraph 233B(1)(c) of the Customs Act 1901 in that ... [he] attempted to have in his possession prohibited imports to which section 233B of the said Act applied, namely narcotic goods consisting of ... ecstasy ... which had been imported into Australia in contravention of the said Act, contrary to subsection 11.1(1) of the Criminal Code 1995 (C'th).

4. AND FURTHER THAT between 2 September 2002 and 5 September 2002 at Perth ... [the applicant] imported into Australia a prohibited import to which section 233B of the Customs Act 1901 applied, namely narcotic goods consisting of a quantity of cannabis resin, contrary to paragraph 233B(1)(b) of the said Act."

4 The applicant pleaded guilty to counts 1 and 4. He pleaded not guilty to counts 2 and 3 and his trial in respect of those counts commenced on 10 November 2003.

5 The facts relied upon by the prosecutor, as outlined during his opening address, were as follows. On 5 September 2002 Australian Customs at Perth International Airport intercepted a satchel sent to the applicant from India. Inside it were four hardcover books and one paperback book. Concealed inside the covers of three of the hardcover books were quantities of cannabis resin. Inside the cover of the remaining hardcover book was a quantity of ecstasy. The narcotics were removed and replaced with a harmless substance, as well as a small quantity of ecstasy in one of the books and a small quantity of cannabis resin in each of the other books. The package was then delivered to the applicant's home address. Some minutes later the applicant was arrested and his premises were searched by police officers. The package containing the books had been opened. One of the hardcover books had been opened, revealing the quantity of inert substance and the ecstasy in that book.

6 The police officers also located a small quantity of cannabis resin in the applicant's wallet which had been brought by him to Australia from India a few days prior to the arrival of the parcel.

7 The applicant was interviewed by police officers. He admitted having organised the importation of the cannabis resin and having taken possession of the books containing the narcotics when they were delivered. He said that he had arranged with an associate in India to import the cannabis resin but that he had only expected to receive 500 grams of it. In fact he received around 700 grams of cannabis resin. He was surprised and shocked to discover that, in addition to the cannabis resin, the ecstasy powder had been imported. He said that he had made no arrangement to import it. He suspected that his Indian contact or another friend, who he identified, may have been responsible for arranging that importation. He said that if he had been approached to import the ecstasy he would not have agreed to do so.

8 Prior to the trial commencing, the trial Judge had ruled that, if the applicant was a party to importing and/or possessing a prohibited narcotic drug, then, even if the applicant had expected to receive and have possession of a drug of one type but received a drug of another type in addition to the drug which he expected to receive, he was "equally guilty of importing or having possession of ... two even though ... [he] may have only expected or anticipated or believed that ... [he was] receiving or in possession of one".

9 Despite this ruling, the applicant maintained his pleas of not guilty to counts 2 and 3 until after the prosecutor had concluded his opening address. Then, after taking advice from his then solicitor, the applicant elected to plead guilty to those counts. He was sentenced in respect of all four counts on 14 November 2003.

10 Notwithstanding his pleas of guilty, the applicant continued to maintain, for sentencing purposes, as he had always maintained previously, that he had had nothing to do with the importation of the ecstasy and that he had not known of its existence until the moment at which he opened the book containing it.

11 Then, having been advised by his lawyer to appeal against his convictions on counts 2 and 3 notwithstanding his pleas of guilty, he did so by a notice of appeal dated 18 November 2003. By that notice he contended that the trial Judge had erred "in finding that proof of knowledge of the existence of one prohibited import in a parcel was sufficient to discharge the Crown's onus of proof in relation to the issue of knowledge of the existence of a second prohibited import in the same parcel". He sought orders setting aside his pleas of guilty in respect of counts 2 and 3 and an order for a new trial on those counts.

12 The applicant also lodged an application for leave to appeal against his sentence. He did so on 1 December 2003.

13 The last-mentioned application came before the Court of Criminal Appeal on 7 May 2004. One of the bases upon which that application was brought was that the sentences imposed upon the applicant were too severe, given that he did not know of the importation of the ecstasy until he opened the book containing it and that he would have opposed that importation had he known of the prospect of it.

14 That submission caused the Court of Criminal Appeal to raise with the applicant's then counsel (not the same counsel as had represented him previously) the question whether or not the submission was one which ought more properly be made in support of an appeal against conviction. That was because, so far as count 2 is concerned (the charge of possession of narcotic goods consisting of ecstasy), s 233B(1)(c) of the Customs Act provides for a defence of "reasonable excuse" and, the Crown having elected to particularise its charge by referring only to narcotic goods in the form of ecstasy contained within one of the four books, there was at least an argument that that defence was open on that charge, given the applicant's denial of any knowledge of the existence of the ecstasy, given what he said had been his firm intention to import only cannabis resin and given his suggested explanation that, unbeknown to him, another identified person had arranged that importation. Similarly, it then seemed to the Court that there was an arguable defence to count 3 on the indictment (the charge of attempting to have in his possession narcotic goods, particularised as consisting of ecstasy) because the applicant had, on his version of the facts, only ever attempted to have in his possession a different prohibited import, being the cannabis resin contained in the three other books.

15 After some discussion with the members of the Court of Criminal Appeal, counsel for the applicant sought, and was granted, an adjournment to consider the matter further.

16 What the Court did not then know (perhaps because counsel for the applicant did not know of it) was that the applicant had earlier, on 18 March 2004, lodged a notice of discontinuance of his appeal against conviction. He did so upon the basis of legal advice as to the appeal's lack of merit, obtained by him from a different legal practitioner. He said that he "felt obliged to accept the advice that ... [he] then had".

17 Notwithstanding this, after hearing the exchange between his current counsel and the Court at the time of the hearing of his application for leave to appeal against sentence, and after that application had been adjourned, he decided to attempt to reinstate his appeal against conviction. Hence, he instructed his counsel to bring this application for leave to withdraw the notice of discontinuance.

18 As counsel for the applicant very properly conceded, there is a formidable obstacle in the applicant's path. It is the judgment of five Judges of this Court in the case of Bridges v The Queen (1998) 20 WAR 59. The applicant's counsel could offer no real answer to the authority of that case and, on the strength of it, the Court unanimously refused the applicant leave to withdraw his notice of discontinuance, saying that it would give reasons for doing so in due course.

19 My reason for joining in that decision is that no basis has been made out for distinguishing Bridges, which appears to be directly applicable to this case.

20 In that case the Court considered an argument which questioned the correctness of an earlier decision of the Court of Criminal Appeal in Hastie v The Queen [1981] WAR 365. In Hastie, the Court had held that, if a notice of abandonment of an appeal was not a nullity, the Court had no inherent jurisdiction to give leave to withdraw the notice.

21 In Bridges, the applicant, having filed a notice of abandonment of an application for leave to appeal certain District Court convictions, sought an extension of time to make a further application for leave to appeal the same convictions. The further application relied upon what was said to be fresh evidence. However, by O IX r 13 of the Criminal Practice Rules 1914 (WA), upon a notice of abandonment of an appeal having been given, the appeal was deemed to have been dismissed by the Court (just as, under r 66(2) of the current Criminal Procedure Rules 2000, on the filing of a notice of discontinuance, "the appeal ... is to be taken to have been dismissed by the CCA").

22 The Court first considered whether the notice of abandonment could be described as a "nullity". It found (the lead judgment was written by Ipp J and agreed with by the four other members of the Court) that, in Western Australia, the test for determining whether a notice of abandonment was a nullity was that laid down in R v Medway [1976] QB 779: see Turan v The Queen (1990) 2 WAR 140. In Medway, Lawson J, who delivered the judgment of the Court of Appeal, said (at 798):

"In our judgment the kernel of what has been described as the 'nullity test' is that the court is satisfied that the abandonment was not the result of a deliberate and informed decision; in other words, that the mind of the applicant did not go with his act of abandonment. In the nature of things it is impossible to foresee when and how such a state of affairs may come about; therefore it would be quite wrong to make a list, under such headings as mistake, fraud, wrong advice, misapprehension and such like, which purports to be exhaustive of the types of case where this jurisdiction can be exercised. Such headings can only be regarded as guidelines, the presence of which may justify its exercise."

23 The Court, in Bridges, went on to consider a number of cases in which notices of abandonment had been found to be nullities because the appellant had not understood the nature or effect of what he had done. In his judgment, Ipp J said (at 65 - 66):

"These decisions are to be distinguished from those cases where the applicant signs a notice of abandonment by reason of incorrect legal advice concerning the likelihood of the appeal succeeding: see Healey [v The Queen (1956) 40 Cr App Rep 40]. An example of the latter category is R v Medway itself, where the applicant filed a notice of abandonment on the basis of legal advice which, according to the applicant's submission, was wrong due to his fundamental misapprehension as to the law. Lawson J said in this regard (at 799):

'Even if we accepted the factual basis for this contention, which we do not, we do not think that a deliberate decision to abandon taken as a result of advice which is founded on a mistaken view of the law is in itself capable of vitiating the effectiveness of the notice to abandon so as to enable the court to treat it as a nullity.'

In R v Green [1989] 1 Qd R 408 the applicant was informed by a welfare officer that his appeal was unlikely to succeed and, without the benefit of legal advice, he decided to abandon it. In the circumstances his application to withdraw the notice was refused.

In Victoria, the Court of Criminal Appeal has adopted the same approach by holding that incorrect advice as to the prospects of success on appeal does not give rise to a nullity; see R v Gardiner [1970] VicRp 34; [1970] VR 278."

24 After referring to the case of R v Hipworth [1987] 1 Qd R 360, which appeared to be the only case which was inconsistent with this line of authority, Ipp J went on to say (at 66):

"To summarise, it is the essence of a null notice of abandonment that it was executed or served by an applicant who did not thereby intend to abandon the appeal, or did not understand the nature or effect of the notice, or misunderstood the nature or effect of the appeal itself. It is only then that the mind of the applicant can be said not to go with the act of abandonment, or that the service of the notice is not the applicant's true act."

25 His Honour also said, so far as the issue of wrong advice is concerned, that (at 66 - 67):

"When it comes to wrong advice, the position is more complex. If the erroneous advice relied upon relates to the nature or effect of the act of abandonment, the act will be regarded as a nullity. But if the advice relates only to the prospects of success on appeal, then the notice will not be declared a nullity. In R v Peters [(1973) 58 Cr App Rep 328], for example, Lawton LJ concluded that the applicant in that case '[did] not [make] a mistake as to his act. He [made] a mistake as to his prospect of success in his application which is another matter altogether'. The principles expressed in R v Peters were not followed in R v Wilkinson (unreported, 20 May 1975) referred to in R v Medway (at 795-796), but the Court of Appeal in R v Medway considered (at 798) that R v Wilkinson was wrongly decided.

The consequences of a mistake as to prospects of success on appeal do not alter depending on whether the mistake results from a misapprehension as to the law, or the facts proved at the trial, or ignorance of fresh evidence, or a combination of any of these. There is no difference in principle between mistakes so caused.

The rationale for a mistake as to prospects of success on appeal (irrespective of the cause of the mistake) not giving rise to a null notice of abandonment is that a notice of abandonment signed or served for that reason remains the true act of the applicant. Wrong advice of this kind does not result in a decision that is not properly informed for the purposes of the nullity test."

26 The Court went on to conclude that Hastie should continue to be regarded as laying down the correct principle to be applied in this State, upon the basis (which is also true in this case) that the applicant accepted that the applicable criminal procedure rule was within power. Ipp J mentioned that Hastie had been accepted in the later case of R v Johnson (1992) 57 A Crim R 290 and had since been assumed to be the law in several other cases. He referred to what had been said by Burt CJ (with the agreement of Kennedy J) in Hastie, at 367 - 368, as follows:

"In my opinion the law under our rule is as it has now been declared to be under the English rule, namely that if the notice given does not satisfy the nullity test there is no inherent or other jurisdiction in this court to give leave to withdraw a notice of abandonment of an appeal. The rule operates and has operated upon the notice given. The appeal is 'deemed to have been dismissed by the Court of Criminal Appeal' and so far as

this court is concerned it is deemed to have been finally dismissed. If an injustice has been done it can, I think, be corrected by this court on a reference to it under s 21 of the Criminal Code, but not otherwise."

27 In Bridges, the Court concluded that the notice before it was not a nullity, with the consequence that it had no jurisdiction to grant leave to withdraw that notice.

28 In this case, too, the notice of discontinuance was not a nullity. The applicant intended to abandon his appeal and he understood the nature and effect of the notice and of the appeal itself. The fact that he filed the notice on the strength of advice which he now considers to have been wrong does not, on the authority of Bridges, result in the notice having been a nullity. Consequently, the Court has no jurisdiction to grant leave to withdraw the notice, which, by virtue of r 66(2) of the Criminal Procedure Rules (mentioned above), had the effect that the appeal was to be taken to have been dismissed by the Court of Criminal Appeal. Any injustice can only be corrected by this Court on a reference to it under s 140(1) of the Sentencing Act 1995 (WA), but not otherwise.

29 TEMPLEMAN J: I have had the advantage of reading in draft the reasons published by Steytler J. It was for the reasons given by his Honour that I joined in the decision to refuse the applicant leave to withdraw his notice of discontinuance. There is nothing I wish to add.