Ian Roy Bishop v The Queen

Federal Court of Australia|1982-03-24|Before: Davies JJ, Fox J, Fom J, Deane J

Practice and Procedure - Notice of Appeal filed within time but not served - No sufficient explanation for failure

Federal Court of Australia Rules - 0.3 r.2,3. 0O.52r.15(2).

ON APPEAL FROM A SINGLE JUDGL OF THE FEDDRAL COURT OF AUSTRALIA

JUDGES MAKING ORDERS: Bowen C.J., Deane and Davies JJ. WHERD MADE: Canberra DATE: Wednesday, 24 March, 1982.

'TUE order of Fox J. atending the tine for filing the notice of appeal be set aside.

THR application for extension of time be dismissed.

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ON APPEAL FROM A SINGLE JUDGL OF THE FIDERAL COURT OF AUSTRALIA

BOK C.d: Mr. Justice Deane will deliver the first yudgment. DEANE J: Tan Roy Bishop ("the appellant") was convicted

n 25 November, 1981 in the Supreme Court of the Australian

apital Territory on each of two counts of supplying a controlled sunstance and one count of possessing a controlled substance for the purposes of supply, contrary to ss.42 and 413 or the Poisons

and Harcotics Ordinance, 1978. He was sentenced to four years'

imprisonment with a non-parole period of two years on each

~ 1 ~ . cy cnarge. it was ordered that all sentences be served concurrently.

An appeal was institutcd by the Crown against sentence and a notice of appeal was filed on 15 December, 1981 in the AuStralian Capital Territory District Registry of the Federal Court, tn compliance with 0.52 r.15(1) (a) (1) of the Federal Court Rules, that 1s to say 1t was filed within 21 days arter the date when the judgment appealed From was pronounced. However, the notice of appeal was not served upon the appellant until @ January, 1982, which was beyond the 21 day period stipulated in 0.52 r.15, and service did not satisfy the requirements cf _the

rules (see Whitehouse Notels Pty. Limited v. Lido Savoy Pty.

Limited (1974) 131 C.L.R. 333, at p. 336). An application

so the Federal Court was made on behalf or the Crown seeking an

order extending the time for serving the notice of appeal. On

February, 1982, Fom J., sitting 1n Chambers, made an order nunc pro tunc extending the time for service of the notice of aopeal up to and including 8 January, 1982. In the present appeal, che aopellant seeks to reverse this order extending the

At first instance, Fox J., held that 0.3 r.3 of the

eral Court Rules empowered him to extend the time for serving

tne notice of appeal. Order 3. r.3 confers, inter alia, a

general power upon the Court of a Judge to extend any time fixed

oy the Rules either before or after the time expires and whether or not an apolication for extension is made before the cime explras. It 1s argued, on behalf of the apocllant, that tne powers conferred by 0.3 x1. 2 were not available in the particular cir- cumstances of the present matter because 0.52 r.15(2) specifically

cealt with the circumstances of the present matter and excluded

the applicability of 0.3 r.3. As at present advised, I am inclined to agree with the view of Fox J. that O. 52 r.15 should

referring to the case where the relevant application is £9 extend Lhe time both for tunstituting and serving the

notice of appeal and should not be treated as excludinc, from

he general powers conferred by 0.3 t.3, the power to extend

he time for serving a notice of appeal which was duly filed

witnin time (see, Whitehouse Hotels Pry. Limited v. Lido Savoy,

supra). lt 1s, however, unnecessary that 1 express any final view on that question since I have reached the conclus-

ison that, in the circumstances of the present case, it 1s

ately inimportant whether the appropriate provisions were

se contained in 0.52 r.15(2) or those containeG in 0.3 1.2.

On the basis that the provisions of 9.32 r.3 were avallaple, the relevant principtes to be app]ied in the present case were, in my viev, enunciated by Cullen C.J. in Morres

v. Papuan Rubber & Trading Co. Limited ((1914) S.R. (N.S.W.)

"..- when a party, who has neqlected to observe those reauirements which the rules place nim uncer for the protection of the other side, comes tor the indulgence ot the Court to ask that the proceedings shall continue notwithstundirg that defauit, he has to satisfv tne Court that justice requires that that default of his shall be overlooked, and ae must satisty the Court that there 1s some reasonable 'inc of explanaticn or excuse Yor 118 neglect of the rules".

(Cee, also Ratnam v. Cumarasamy (1964) 3 All E.R. 933 at p. 935;

Xavicl v. Prentice Hall Incorporated (1969) 1 All E-R. 772 at

774). What 1s required by way of explanaticn and the require-

ments of justice will, of course, vary with the circumstances of

the particular case. In the present case, Mr. Palmer, who appears for the appellant, has placed particular reliance upon tne fact that the appeal in question is an appeal by the Crown

A right in the Crown to appeal against the sentence imposed in a criminal proceeding has become common place in Australia. It 1s, nonetheless, a right of appeal which raises speclal considerations.- As a Full Court of this Court commented

in The Queen v. Tait & Bartley ((1979) 24 4.L.R. 473 at p. 476):

"although an error affecting the sentence must appear octore the appellate conrt will intervene in an appeal eicher py tne Crown or by a detendant, a Czown appeal raises considerations which are not present in an appeal ov a Getendant seeking a reduction Jn his sentence. Crown appeals have been described as cutting across "time-honoured eencepts of criminal administration" (per Barvick C.Jj.,

Peel v. R. (1971) 125 C.u.R. 447 at 452; (1972) A.L.R.

231 at 233). A Crown appeal puts in ieoparay "the vested interest that a man nas to the +seedom which 1s his, subject to the sentence of the primary tribunal" (per Isaacs J, whittaker v. R, supra at 248). The freedon beyona the sentence unposed is, ror the second time, in Jeopardy

In a system which permits Crown appeals against sentence, a convicted person who has been sentenced knows that until the

me fsr filing and serving a notice of appeal has expired he must

ri himself as remaining in jeopardy as to his Freedom beyond

the sentence or sentences imposed. If the time For filing and serving a notice of appeal expires without a notice of appeal being served upon him, he 1s, in the absence of special cirecum-

3, entitled to regard that period of double jecpardy as

closed. In the special circumstances of an appeal against

sentence, 1 would, in mv view, be wrong and unjust after that

ee ". » = web a rep ere Shee. me pao ee Se ix ee a ee VEU ALE = an ag, wae aor er '

period had expired without a notice of appeal being served to

accede to an application by the Crown to cxtend the perlcd of time

un which service could properly be effected unless there were

evidence disclosing an acceptable explanation of the failure so serve within time and unless special circumstances were established to justify the grant of the tndulgence sought by

The approach whicn che learnea judce at E1Yat LUStaRrce

adoptea in tne present case appears from the folloviug extract

he reason for tne Crown belnu out 2f time, whether 1t 3s sxcuSsaple or not, and what -ffect, if any, pesng out of 2"e had uonn the respondent. No evidence has becn 71194 on behalf of the resvordent, ana there 1S ro evidence cr, Iniecd, an' suggestion, tnat ne was in anv way pre zud ced wy rhe lateness. Ee was in gauaol und had a long serioa yemaining !o be served unary the sentences whi7n were imposed".

"One looks to see the reascen for the delay, chat 14 to say, ® t

With all respect to tnose whe might see =the mattcr alfferently, I am unable to accept Etnuat the fact the ansejiant ves in gaol in any way lessens the need for toec1al vlxcumstarce tS r@ snown to exist hefore the Crovn should ke granted an extension of time for serving a notice of avpeal against sentence or for there to be an adequate explanation of the farlura to serve a notice of appeal within time. The fears,

apprenensions and expectations of ordinary men are prone to

be exaggerated rather than lessened by confinement. The prejudice of renewed jeopardy, after the absence of service

would indicate the jeopardy had come to an end, 1S in no way

limited by the consideration that the appellant wus in gaol serving

2 ee Se oR OR MEET beep MET - tT MIMY wae ne oe oe ogo Sp gt. Seta yn oT TO, LL ee aca a a OOO ale

The letters from the legal aid office of the Australian Capitai Territery to the Deputy Crown Solicitor's Office which nave been placed in evidence by the Crown clearly lead to the conclusicn that the appellant was unaware that a notice of

seal nad been filed until it was served upon him on 8 January,

The case is plainly one 1n which 1t was encumbent upon

rewn to escablish an acceptabie exnlanation of why the notice of appeal was not served within timc and to show that sveci1al7~ circumstances exist to justify an order regularising its service

st tne notice of appeal out of time. In my view it signally

Upon examination, the evidence adduced by the Crown offers no real explanation at all as to why the notice of

eal was not served within time. The axfidavit of Mr.

wu ra tt r 1ak discloses, as does the Court file, that the notice

° 1 was filed on 15 December, 1931, that 1s 20 days after tne sentences were imoosed. There 1s no suggestion that the netice of appeal could not, if it had been so desired, have been filea before that dav. On 15 December, 1981, Mr. Hornenstall of the Deputy Crown Solicitor's office telephoned an otficer of the A.C.T. Legal Aid Ofrice which nad acted for tie appellant in the criminal proceedings. The evidence Paicates that Mr. Hempenstall was informed that the officer of th2 Legal Aid Office in question was unacquainted with the

conduct of the matter "and that the Legal Aid Office" had

"so instructions relating to the Crown Appeal or indeed relat-

3 to this matter at all from Mr. Bishop and that of course

(tne Leadal Aid Office) could not accept any service unless and unt:jJ aunstructions to that effect" were received. There 1s no avidence that the notice of appeal could not at that time have been served upon the aopellant on the following day which was Still 'zithin the 21 days allowed for service of a notice of

appeal. In the avent, the Legal Ald Office did not receive

b n uu ct ucticns to accept service on the appellant's behalf. Cne looks in vain for any stated reason as to why service was not_ etiected within the time permitted by the rules or as to any svecial circumstances justifying an order extending the time for service. This is not a case in which it could be suggested that the Crown had difficulty in locating the respondent. The

The conclusion Which I have reached, in all the Cizcamstaneces, is that the Crown faziea to estakbklisa any proper grcunu for extending the time for appealing in the present matter. It 1S unnecessary to consider the further submission mace on benalc of the appellant that an extension or time shoulda not have been granted in the absence of maLlerial showing the

appeal would have a reasonable prospect of success.

I would uphold the appeal and set aside the order extending tne time for filing the notice of appeal. I would

ordjer that the application for extension of time ba dismissed.

SCWON C.J: I agree DAVIES J: I agree with the decision and the substance

of the reasons of Deane J. However, I wish to make it clear that,

voyL ust establisa 2Fecial clrcumstances when Oné 1s dealing with a mere irregular2 ty, sden 2502 Failure to serve within time. [¢£ there 1s a Faijiure 9 Tile ona sarvo a netics of appeal wWltnin time, then 9.52, siub-r.

-- (7) rF2cunres that there be special reasons for the qranc of

sf sirenslon oF tame. The terms of that Sub-Fule set out a Drircisle 'mich hes Jong been estab] Shea in the lass. Hcwaver, "ice an appeal hes been corme enced within tire and wnat 15 scugnet

j Mr Just1 CA poveette we Ot phe Move fe ' Leu re iheres e

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At a glance

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Decision date

Before

Catchwords

Source

Catchwords

Judgment (98 paragraphs)

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