Court of Appeal (WA)|2001-08-28|Before: Kennedy J, Wallwork J, Owen J

Mullally v The Queen [2001] WASCA 258 (28 August 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MULLALLY -v- THE QUEEN [2001] WASCA 258

Criminal law and procedure - Application for leave to appeal against conviction - Notice of abandonment filed - Subsequent application seeking leave to withdraw notice of abandonment - Whether notice a nullity - No cross-examination on applicant's affidavit - Leave to withdraw notice granted

Anthony Lagoon Station Pty Ltd v Maurice (1987) 74 ALR 77

Broadcasting Co Australia Pty Ltd v The Commonwealth [1935] HCA 3; (1935) 52 CLR 52

Carbines v Powell [1925] HCA 16; (1925) 36 CLR 88

Gibson v Mitchell [1928] HCA 37; (1928) 41 CLR 275

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

Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402

R v Shannon v R (1982) 32 SASR 5

Utah Construction & Engineering Pty Ltd v Pataky [1966] AC 629

1 KENNEDY J: On 20 October 1999, the applicant was convicted, after a trial by jury in the District Court, of one count of stealing. He was found to have stolen a sum in excess of $26,000 by transferring it from his trust account to his personal account in satisfaction of legal costs. He was sentenced to a term of imprisonment of 2 years, with eligibility for parole. He was released on parole on 23 June 2000.

2 On 4 November 1999, the applicant filed a notice of appeal against his conviction. The notice contained 17 grounds. Nearly nine months later, the applicant filed a notice of abandonment of his appeal in the form set out in the Schedule to the Criminal Practice Rules 1914, by which he gave notice that he did not intend further to prosecute his appeal, but that he thereby abandoned all further proceedings in regard thereto as from the date of the notice, 31 July 2000. This notice was signed only three days before the date fixed for the hearing of the applicant's appeal.

3 Order IX, r 13 of the Criminal Practice Rules provides:

"An Appellant at any time after he has duly served notice of Appeal or of Application for leave to Appeal, or of application for extension of time within which such notices shall be given, may abandon his appeal by giving notice of abandonment thereof in the Form No 7 in Part IV of the Schedule to these Rules to the Registrar, and upon such notice being given the appeal shall be deemed to have been dismissed by the Court of Criminal Appeal."

In terms of the rule, the appeal was therefore deemed to have been dismissed.

4 Nevertheless, on 12 February 2001, the applicant gave notice of an application to obtain the leave of the Court of Criminal Appeal to withdraw his notice of abandonment. He also sought an extension of time in which to appeal against his conviction. The proposed grounds of appeal were now reduced to two, the first contending that the learned trial Judge had erred in law in admitting into evidence what was described as a draft unsigned letter said to be from the applicant to the Department of Social Security which was inadmissible or, in any event, ought to have been excluded in her Honour's discretion, and the second contending that the verdict of the jury was unreasonable and/or could not be supported. These grounds were to be found in grounds 1 and 17 respectively in the original grounds of appeal.

5 In R v Medway [1976] QB 779, a specially constituted Court of Appeal, Criminal Division, comprising Lord Widgery CJ, Stephenson LJ, O'Connor, Lawson and Jupp JJ, considered the circumstances in which a notice of abandonment of an application for leave to appeal may be withdrawn. The relevant English rule provided that, where an appeal or an application for leave to appeal is abandoned, the appeal or application shall be treated as having been dismissed or refused by the court. It being conceded that the court had jurisdiction to allow a notice of abandonment of an application for leave to appeal to be withdrawn, the first matter for decision was said to be, what were the conditions to be satisfied for the exercise of that jurisdiction? Lawson J, who read the judgment of the court, said at 798 - 799:

"The answer to the first question which we have to decide depends upon whether alongside the jurisdiction which undoubtedly, as all authorities show, exists to give leave to withdraw an abandonment where it is shown that circumstances are present which enable the court to say that that abandonment should be treated as a nullity, there co-exists an inherent jurisdiction, in other special circumstances, enabling the court to give such leave. We are satisfied and hold that there is no such jurisdiction. 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. As we have said at the outset, the jurisdiction of this court and of its predecessor is based upon statute and we have been referred to and have found no authority to support the existence of a parallel inherent jurisdiction. Indeed the authorities to which we have been referred, with the possible exception of Lord Reading CJ's observations in Rex v Pittman (1916) 12 Cr App R 14, support only the proposition that the inherent jurisdiction to regulate proceedings before the court can come into operation where, in cases of statutory jurisdiction, there is a lis extant before the court upon which that inherent jurisdiction can operate."

6 R v Medway was followed by this Court in Hastie v R [1981] WAR 365. However, by reason of some observations made in Turan v The Queen (1989) 2 WAR 140, at 146, a special Bench of five Judges was convened in Bridges v The Queen (1998) 20 WAR 59 in order that the correctness of the decision in Hastie v The Queen could be reviewed. The result of that review was that Hastie v The Queen was approved and applied.

7 In the course of his reasons in Bridges v The Queen, with which the other members of the court agreed, Ipp J, at 65 - 66, pointed out that wrong advice as to the prospects of success on appeal does not give rise to a nullity according to the test in R v Medway. In that case, Medway had filed a notice of abandonment on the basis of legal advice which, according to his submission, was wrong due to a fundamental misapprehension as to the law. Lawson J, at 799, said:

"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."

See also R v Green [1988] 1 Qd R 408 and R v Gardiner [1970] VicRp 34; [1970] VR 278.

8 In his affidavit in support of his application, the applicant deposed that he had signed the notice of abandonment personally, and that he had not received any legal advice as to the effect of the notice. He claimed that a senior QC had expressed to him an opinion on the merits of his grounds of appeal, as they were then formulated. His opinion was that the appeal was unlikely to succeed, and that it would be in his interests not to proceed with it on 3 August 2000. The name of the Queen's Counsel was not stated.

9 The applicant then went on to depose that he had been quite devastated by the advice of the Queen's Counsel, as he had believed there were good grounds for his appeal. He claimed that the advice was given to him on the Wednesday before the hearing, which was set down for the following Tuesday, and that, in the days following, he had found it hard to concentrate or to think clearly, and all he wanted was for the matter to go away. He said he telephoned the Supreme Court to ascertain what was needed to get the appeal out of the list of cases to be heard, and that the Registry Staff informed him that he had to sign a notice. The Court faxed a blank precedent to him, which was then typed up, signed by him and witnessed by his daughter, who duly filed it at the Court. He maintained that the only matter in his mind at the time when he signed the notice was that the appeal had to be taken out of the list of cases for hearing. He further claimed that, if he had appreciated or understood that the notice was a full dismissal of his case on the merits, and that it barred all future action on the appeal, he would not have signed it. He also claimed, however, that he had signed the form believing it to be the abandonment of the appeal as constituted by the proposed grounds of appeal, but not of his rights for the future, should he seek to appeal and seek an extension of time in which to do so.

10 A number of comments may be made in relation to the substance of the applicant's contentions. As already noted, the presently proposed grounds of appeal had been included in the original notice of appeal. Furthermore, a reading of the notice should have dispelled any thought that the applicant was simply taking his appeal out of the list of cases to be heard and, in this context, it cannot be ignored that the applicant was himself a solicitor practising in the firm of Patrick Mullally & Co.

11 The second justification proffered by the applicant was that he believed that the signing of the letter was the abandonment of the appeal, as constituted by the grounds, but not of his rights for the future, should he seek to appeal and to seek an extension of time in which to do so. This explanation is inconsistent with the applicant's first claim, namely, that he was merely trying to take the appeal out of the list for hearing.

12 Another justification appears in the applicant's affidavit in support of an application for an extension of time for filing a new notice of appeal. This was that he had received legal advice to abandon the appeal, and that he had done so before it came on for hearing.

13 Notwithstanding the foregoing, the fact remains that the Crown did not elect to cross-examine the applicant on his affidavits, and the Court is left with uncontradicted evidence from the applicant that his mind did not go with his actions, which evidence is not, in my view, so inherently improbable as to warrant its rejection. On this basis, the notice of abandonment should be treated as a nullity and leave granted to the applicant for him to withdraw it. The effect of the withdrawal will be that the appeal is reinstated and the initial notice of appeal will stand as the notice of appeal despite the applicant's delay.

14 It is necessary, however, to consider two further submissions made by the applicant, the first of which was that O IX r 13 was invalid. The rule was made under s 747 of the Criminal Code, which relevantly provides as follows:

"The Judges [of the Supreme Court], or a majority of them, may also make general rules not inconsistent with the provisions of this Code, regulating the proceedings upon the trial of persons charged with indictable offences, and the proceedings upon informations presented by leave of the Court and the procedure and practice relative to appeals to the Court of Criminal Appeal.

Rules so made for the regulation of the procedure and practice relative to such appeals may make provision with respect to any matter for which provision is to be made under Chapter LXIX by rules of court or which it may be necessary or convenient to prescribe for any of the purposes of that chapter or for the efficient conduct of any proceedings thereunder, and may regulate generally the practice and procedure under that chapter; and the officers of any court before whom an appellant has been convicted, and the governor or other officers of any prison or other officer having the custody of an appellant, and any other officers or persons, shall comply with any requirements of those rules so far as they affect those officers or persons, and compliance with those rules may be enforced by order of the Court of Criminal Appeal.

The Judges or a majority of them may also, subject to this Code, make general rules for regulating the practice and procedure of the said court in its criminal jurisdiction."

15 The rule has a long history. The United Kingdom rule was first introduced in 1908, and it was adopted in Western Australia in 1914 and, so far as I have been able to ascertain, has never been challenged in these, or any other jurisdictions having similar rules. The applicant's argument was that the words "deemed to be dismissed" do not fall into the category of something which is necessary or convenient. In my opinion, the deeming provision is ancillary to the general operation of the rule. It provides a convenient method of bringing an end to an appeal which the appellant has decided to abandon, without the necessity for any appearance in court, but having the same effect as it would have had if the applicant had appeared and announced to the Court of Criminal Appeal his intention to abandon his appeal. The rule, in my view, relates to a

matter of practice and procedure, and it is within the rule making power of s 747 of the Code. This case is far removed from the facts of Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245, to which the applicant made reference.

16 The applicant then claimed that the rule is unreasonable, basing his argument on the leading cases of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 and Kruse v Johnson [1898] 2 QB 91. There is, in my view, no substance in this argument. It is not a Draconian provision, as the applicant claimed, and I am unable to accept that the rule is so unreasonable that no reasonable authority would make it. As already indicated, it provides a convenient method for an appellant/applicant to bring an appeal, or an application for leave to appeal, to an end.

17 I would allow the applicant's application and grant him leave to withdraw his notice of abandonment of his appeal.

18 WALLWORK J: I agree with the reasons for judgment of Kennedy J and with the orders proposed by his Honour.

19 OWEN J: I have read the reasons that Kennedy J intends to publish. I agree with his Honour's reasons and with the conclusion that the application be allowed and that the applicant be permitted to withdraw the notice of abandonment. I should explain, in a very summary way, why I have reached that view.

20 The argument that OIX r 13 is ultra vires is untenable. At the relevant time it provided:

"An appellant ... may abandon his appeal by giving notice of abandonment thereof in [the prescribed form] and upon such notice being given an appeal shall be deemed to have been dismissed by the Court of Criminal Appeal."

21 The applicant submitted that the rule was ultra vires. The rule made under s 747 of the Criminal Code which empowers the Judges of this Court to make rules that are matters of practice and procedure and which are (among other things) "necessary or convenient ... for the efficient conduct of any proceedings [under Chapter LXIX of the Criminal Code]". In my view the rule fits within that category and is within power. The alternative argument that the rule is so unreasonable that no reasonable decision-maker could have made it is even less attractive.

22 Bridges v The Queen (1998) 20 WAR 59 confirmed that a notice of abandonment, once filed, is effective to put an end to the appeal but the Court may give leave to withdraw a notice that is a nullity. It also confirmed that a notice will be regarded as a nullity if it is not the deliberate and informed decision of the applicant. Put in a slightly different way, it will be a nullity if the mind of the applicant did not go with his or her act of abandonment.

23 As Kennedy J has pointed out, there are some inconsistencies or uncertainties in the explanation proffered to the Court by the applicant for his decision to file the notice. However, in his affidavit sworn 12 February 2001 the applicant says:

"8. ...The only matter on my mind at the time when I signed the notice was that the appeal had to be taken out of the list of cases for hearing.

9. If I had appreciated or understood that the notice was a full dismissal of the case on the merits and that it barred all future action on the appeal I would not have signed it."

24 The applicant was not cross-examined on these statements (or at all). They therefore stand entirely uncontroverted. It is true that prior to him filing the notice the applicant had received advice from senior counsel that the proposed appeal had little chance of success. However, the applicant's evidence (and these are my words, not his) is that he took it to mean that the grounds of appeal as formulated were deficient rather than that a challenge to the convictions generally was unsupportable. It was on this basis that he says he sought to have the appeal removed from the list of cases awaiting hearing. Again, this evidence is uncontroverted.

25 Bridges is also authority for the proposition that a notice will not be declared a nullity merely because it is signed as a consequence of wrong advice as to the prospects of success on appeal. But this is not a case of wrong advice on the merits of the appeal. If the applicant's evidence is accepted (and in my view it must be because it was not challenged) the mistake went to the very nature of the process itself rather than to merits of the appeal that had been instituted.

Mullally v The Queen [2001] WASCA 258

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Mullally v The Queen [2001] WASCA 258 (28 August 2001)

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