Question (2): Can there be more than one appeal from an indictment that contains multiple counts?
38Having concluded that a trial must proceed on a single indictment, which may contain multiple counts, the next question that arises is whether there can be more than one appeal in respect of the convictions on the indictment. The question may be posed another way. Can one appeal be brought in respect of some of the convictions and a separate appeal brought in respect of other of the convictions of the various counts on the indictment? This question is the critical question for the Court's determination. The Crown relied, in support of its submission that one appeal only lay from an indictment, on obiter statements of the High Court in Grierson v R [1938] HCA 45; 60 CLR 431 and on two Western Australian decisions which are referred to below.
39The question in Grierson was whether an appeal, once determined, may be reopened or whether a second appeal may be brought. Grierson, who was indicted on two counts and convicted of both, had appealed to the New South Wales Court of Criminal Appeal. The appeal was dismissed. Grierson later purported to bring a second appeal from his convictions on the same two counts on the basis that, since his original appeal, material facts had become known regarding one of the Crown's material witnesses. The Court of Criminal Appeal refused to reopen the original appeal or to grant leave to bring a fresh appeal: R v Grierson (1933) 50 WN (NSW) 71.
40Grierson appealed to the High Court. Rich J, observing that a person's entitlement to appeal was founded in statute concluded, at 434, that:
"... the jurisdiction of the Court of Criminal Appeal is confined within the limits of the Act and that when the court has heard an appeal on its merits and given its decision the appeal cannot be reopened."
41Dixon J was of the same opinion. His Honour observed, at 435, that the Court of Criminal Appeal had held, in accordance with the decision of the Supreme Court of South Australia in R v Edwards [No 2] (1931) SASR 376, that:
"... a second appeal from a conviction could not be entertained after the dismissal, upon the merits, of an appeal or application for leave to appeal and that the first appeal could not be reopened after a final determination."
42After expressing his agreement with that proposition, Dixon J stated, at 435-436:
"The jurisdiction is statutory, and the court has no further authority to set aside a conviction upon indictment than the statute confers. The Criminal Appeal Act of 1912 N.S.W. ... does not give a general appellate power in criminal cases exercisable on grounds and by a procedure discoverable from independent sources. It defines the grounds, prescribes the procedure and states the duty of the court. The statute deals with criminal appeals rather as a right or benefit conferred on prisoners convicted of indictable offences and sets out the kind of convictions and sentences from which they may appeal and lays down the conditions on which they may appeal as of right and by leave and the procedure which they must observe. It limits the time within which appeals and applications for leave to appeal may be brought, subject, however, to a discretionary power in the court to extend the period except where the sentence is capital. The grounds or principles upon which the court is to determine appeals are stated, and the duty is imposed on the court of dismissing an appeal, unless on those principles it determines that it should be allowed. The determination of an appeal is evidently definitive, and a conviction unappealed is equally final." (emphasis added)
43McTiernan J, at 437, agreed with the reasons of Rich and Dixon JJ.
44Starke J, at 435, also considered that the application should be dismissed, expressing entire agreement with the reasons of Jordan CJ in the New South Wales Supreme Court, where Jordan CJ had stated:
"When an appeal has once been fully heard and disposed of, that is, in my opinion, an end of the matter ... and the prisoner cannot continue to appeal from time to time thereafter, whenever a new point occurs to him ... or whenever a new fact is alleged to have come to light."
45The principle in Grierson that an appellate court had no jurisdiction to reopen an appeal that had been determined on the merits was endorsed by the plurality in Burrell v The Queen [2008] HCA 34; 238 CLR 218 at [24]. The Court in Burrell, at [26], found it unnecessary to consider whether there were qualifications grafted onto that general rule, and in particular, if there was any exception based upon a denial of procedural fairness. If there were such qualifications, the plurality held they were to be sourced in the Criminal Appeal Act.
46The Crown relied upon two Western Australian decisions in which Grierson had been applied: Matta v The Queen (1995) 126 FLR 127 and Napier v State of Western Australia [2008] WASCA 106; 36 WAR 543. In Matta, the applicant had been charged with three drug offences, two contravening Commonwealth law and the third offence contravening a State law. The applicant was found guilty by unanimous verdicts of guilty in respect of each count. The applicant filed an application for an extension of time to appeal on the basis that the trial judge had erred in law by directing the jury that he would accept a majority verdict. Whilst a majority verdict was available in respect of the State offence, it was precluded in respect of the Commonwealth offences pursuant to The Constitution, s 80, as had been determined by the High Court in Cheatle v The Queen [1993] HCA 44; 177 CLR 541.
47The application for extension of time was refused on the basis that there was no merit in the proposed appeal in circumstances where the jury had brought in unanimous verdicts in respect of both the Commonwealth and State offences. Relevantly for the question presently under discussion, the applicant's counsel, in the course of the hearing of the application for extension of time, informed the court that the applicant wished to appeal only against the convictions for the two Commonwealth offences.
48Subsequently, the applicant filed a further application for extension of time to appeal against all counts on the basis that certain evidence had been wrongly admitted. The Crown opposed the application contending that the proposed appeal was not competent by reason of the Court's earlier refusal to extend time.
49Pidgeon J, at 128-129, noted that Grierson was authority for the proposition that a second appeal or application for leave to appeal from a conviction cannot be entertained after its dismissal upon the merits. His Honour considered, at 129, that this rule was binding even where different grounds were put forward in the second application. See also R v Wickliffe [1986] 1 NZLR 4. His Honour concluded, on the basis of the reasoning in Grierson, that it made no difference whether the Court had refused an extension of time as distinct from refusing an application for leave to appeal. His Honour observed that in Grierson, Dixon J had stated that the principle applied both to an appeal or application for leave to appeal. Pidgeon J considered, at 129-130, that similar reasoning applied to an application for extension of time, because the determination of that application involved a consideration of the merits of the proposed grounds of appeal.
50His Honour held that the position was no different where, in the original application for an extension of time, the proposed appeal on the State count had not been considered on its merits. As his Honour noted, at 130:
"It is not open to lodge separate appeals on each count of a multiple indictment. There is one appeal."
51Rowland J, at 130, agreed with the reasons of Pidgeon J. Owen J also agreed with his Honour's reasons, but added additional comments on the question of multiple appeals. His Honour stated, at 131, that once an appeal had been heard on the merits, all statutory rights of appeal were exhausted and any further appeal was incompetent: see Grierson at 435-436. It was irrelevant, on his Honour's approach, that the second application was based on different proposed grounds of appeal from those advanced on the earlier occasion. His Honour considered that this principle applied, whether or not the question arose on a substantive appeal or on an application to extend time in which to appeal.
52Owen J had earlier observed, at 130, that on an application for an extension of time, the merits of the proposed appeal fell, "almost inevitably", for consideration. This was particularly so where there was no satisfactory explanation for the delay, so that the merits of the proposed appeal would become the dominant consideration. In his Honour's opinion, the merits of the proposed appeal on the Commonwealth counts had been considered on the first application. It followed that the second application in respect of those counts was incompetent. This was so notwithstanding that an appeal, at least in respect of the Commonwealth counts, would almost certainly succeed having regard to the principles stated in Ridgeway v R [1995] HCA 66; 184 CLR 19 in respect of the discretion to exclude unlawfully obtained evidence.
53Owen J then gave separate consideration to the application in respect of the State count. His Honour observed that the proposed grounds of appeal advanced on the first application were drafted in terms challenging the convictions on both the State and Commonwealth convictions. However, during the course of the hearing of that application, counsel had informed the Court that the application for leave to appeal and the proposed appeal would be pursued, if an extension of time was granted, only in relation to the Commonwealth convictions. This was because the proposed grounds drafted in the original notice of appeal, challenging the trial judge's direction that he would accept a majority verdict, could only succeed in relation to the Commonwealth counts.
54Owen J observed, at 131-132:
"The applicant did not formally abandon the application for an extension of time within which to appeal against the State convictions and nor was the application formally amended. It was simply not pursued."
55His Honour continued, at 132:
"Counsel for the applicant indicated to this Court that when the decision was made not to pursue the appeal in relation to the State counts the decision in Ridgeway was known to those advising the applicant but a position had not been taken on it. No mention was made to the Court in the earlier proceedings that the grounds might be enlarged to encompass the Ridgeway principle. In the circumstances I think that the dismissal by the Court of the application for an extension of time in the earlier proceedings must be taken to be a dismissal of the application in relation to all convictions."
56It followed, in his Honour's opinion, that the application to extend time in respect of the State count was also incompetent.
57The question of the competency of a second application to extend time to appeal was again considered by the Western Australian Court of Appeal in Napier. That case involved a single count of murder of which the appellant had been convicted. An application to extend time in which to appeal was refused after the Court considered that the delay in bringing the application was inexcusable and that none of the proposed grounds of appeal had any substance. Some 15 years later, the appellant brought a further application for an extension of time in which to appeal. The question in issue before the Court was whether the second application was competent.
58Steytler P (McLure and Buss JJA agreeing) noted, at [24], that notwithstanding that the dismissal of the first application for an extension of time was an interlocutory order, not a final determination of the merits of the appeal, the parties had accepted that the Court's decision in Matta was correctly decided. His Honour also observed that the provisions of the WA Criminal Code were in similar terms to those of the Criminal Appeal Act, considered in Grierson. His Honour concluded that because the refusal of the first application resulted from a consideration of the merits of the proposed grounds of appeal, the decision was to be treated as if it dismissed the appeal. It followed that the second application was incompetent.
59Matta was also applied by the Court in Sherkam v Parker [2002] WASCA 179, where the Court stated, at [6] and [7], that the relevant statute provided for one appeal from a conviction. It was irrelevant that different grounds of appeal might be sought to be advanced in a second appeal.
60In R v Brain [1999] SASC 358; 74 SASR 92, the South Australian Court of Criminal Appeal stated, at [46]:
"It is well established that the legislation is to be read as permitting only one appeal against conviction and only one appeal against sentence. There are powerful legal and practical reasons for so deciding. It suffices to refer to the following decisions binding this Court: R v Edwards (No 2) [1931] SASR 376; Grierson v The King (1938) 60 CLR 431; The Queen v Shannon (1982) 32 SASR 5; R v Caruso (1988) 49 SASR 465; Postiglione v The Queen (1997) 189 CLR 295. The same view has been taken of similar legislation in other States: Saxon (1998) 101 A Crim R 71 (Court of Criminal Appeal, New South Wales); Stone (1989) 42 A Crim R 189 (Court of Criminal Appeal, Western Australia); R v McNamara (No 2) [1997] 1 VR 257 (Court of Appeal, Victoria)." (emphasis added)
61A consideration of the authorities referred to in Brain confirms that only one appeal lies from an indictment, regardless of whether there is one or more than one conviction on the indictment.
62In R v Reardon [2004] NSWCCA 197; 60 NSWLR 454 Hodgson JA (Simpson and Barr JJ agreeing) observed, at [41], that Grierson was authority for the proposition that once an appeal had been heard and determined and the order perfected, there is no jurisdiction to re-open the appeal. His Honour accepted that this principle was subject to the slip rule, cases of fraud and possibly where there had been a breach of procedural fairness. In regard to the last of these matters, his Honour stated, at [41]:
"Failure to deal with an argument that has been advanced, or deciding an appeal on a basis not properly argued, although possibly amounting to a denial of procedural fairness and thereby to an error of law, could not of itself in my opinion be a failure to determine the appeal such as could avoid the operation of the principle in Grierson."
63In R v McGrane [2012] QCA 221, the Court stated that it had "no jurisdiction to hear a further appeal". The Court referred, inter alia, to Grierson. See also R v Nudd [2007] QCA 40 and R v Lumley [2009] QCA 172 as supporting this proposition.
64In Arnaout v The Queen [2008] NSWCCA 278; 191 A Crim R 149, the Court was concerned with an appeal against sentence of a person convicted of seven separate offences. The Crown had argued that even if sentencing error was established, the Court would not intervene, as no other sentence was warranted in law: Criminal Procedure Act, s 6(3). An issue as to the proper construction of s 6(3) arose and, in particular, in determining whether to re-sentence, the Court was concerned only with the individual sentence or sentences subject of the appeal, or whether it extended to those not subject of the appeal.
65Whilst the provisions of s 6(3) are not relevant to the present appeal, the applicant relied upon the remarks of Basten JA, at [20], where his Honour stated:
"It follows that the use of the singular form of 'sentence' in s 6(3) does not mean an aggregation of sentences, merely because use of the singular may import the plural. No doubt an appeal under s 5(1) may relate to more than one conviction or sentence; but if an offender appeals against one only of three convictions, the court is not empowered to consider the validity of other convictions."
66The applicant submitted that his Honour's remarks supported his submission that the Court was empowered to consider the validity of the convictions in relation to counts 5 and 6 because there had been no appeal against those convictions. It was submitted that this was so, notwithstanding that the original notice of appeal referred to those counts. The applicant's argument was that there was no appeal from those convictions because none of the grounds of appeal related to counts 5 and 6.
67This submission, in my opinion, faces two difficulties. First, it begs the question whether there was an appeal against the convictions on counts 5 and 6. That matter is considered below in question four. Secondly, it fails to grapple with the question, which I consider is central to the applicant's present application before the Court, whether separate appeals may be brought against individual convictions tried on the one indictment.
68In this regard, in Arnaout, Basten JA had also said, in a passage not referred to by the applicant:
"The question is not whether separate 'appeals' are required in relation to separate sentences ... but rather to identify the matter with respect to which an applicant has sought to invoke this Court's jurisdiction." (emphasis added)
69Basten JA referred to the observation of Price J at [80], where his Honour had stated, in unequivocal terms:
"Where an offender has been convicted of more than one offence and more than one sentence is imposed, there is one appeal to this Court although that appeal may be founded on a number of grounds." (emphasis added)
Price J thus considered that the reference to "sentence" in s 6(3) was a reference to the aggregate sentence and was not confined to the sentence imposed in respect of which the appeal was brought. Although Basten JA did not, as I understand his Honour's reasons, commit himself to a view as to whether only one appeal lay: see at [20], Price J's observation, albeit obiter, is consistent with the statements in Grierson and Matta to which I have referred.
70The ratio of Grierson is that an appeal against conviction is final and cannot be reopened, subject only to the rules of Court which allow an appeal to be revisited if application is made within the time prescribed by the rules. The observations in Grierson to which I have referred tend to suggest a negative answer to the question under consideration, particularly the comment of Dixon J that an appeal is determinative and that a conviction from which there is no appeal is final.
71There is an observation in Matta by Pidgeon JA, agreed with by the other members of the Court, that there is only one appeal from an indictment containing multiple counts. Having regard to the matter that was in issue in that case, that comment was, in my opinion, part of the ratio of the case.
72The same issue arose in R v Saxon (1998) 101 A Crim R 71, where the New South Wales Court of Criminal Appeal reviewed the decisions of this Court and other State intermediate appellate courts which had held that there may only be one appeal notwithstanding that an indictment may contain a number of different counts. Smart J held, at 81, that the present case fell within the terms of Grierson. No suggestion was made by counsel on the argument on appeal that Saxon or the other cases in which this question has arisen, whether as part of the ratio or by way of dicta, were wrong or should not be followed.
73In any event, I consider that these decisions correctly state the law. This flows, in my opinion, from the one indictment/one jury rule considered in Swansson and from the principle of finality of litigation. If there can only be one indictment presented to a jury of the counts which are charged against an accused person, any appeal must be from the verdicts on the indictment. Were it otherwise, the principle of finality of litigation would be offended.
74The principle of finality of litigation was examined by the High Court in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 at [34]:
"A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances."
75In Burrell the Court emphasised that the reargument or reagitation of issues already decided by a court involves an unacceptable and, indeed, unavailable, departure from the principle of finality: see especially at [15], [16] and [19]; see also Kirby J at [98]. See also Eastman v R [2008] FCAFC 62; 166 FCR 579.
76If more than one appeal was allowed from convictions of different counts on an indictment, there may well be an overlapping of issues in the different appeals. There may also be a determination in one appeal which would conflict with the determination in the second appeal.
77The present case is an example. The Crown case was that the money which was the subject of count 6 was the proceeds of the robbery of the Drummoyne Hotel, being the robbery subject of count 3. The evidence relating to Count 6 was thus directly relevant to count 3. If separate appeals were permissible from the conviction on the robbery count (count 3) and from the possession of the proceeds of crime count (count 6), differently constituted courts could arrive at different conclusions as to whether the respective convictions were unreasonable and inconsistent with the evidence.
78Subject to the question of abandonment, it follows in my opinion, therefore, that this Court does not have jurisdiction to hear and determine a second appeal in respect of counts 5 and 6.