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[1999] SASC 358
Supreme Court of SA
1999-08-27
Original judgment source is linked above.
Appellant pleaded guilty to offence of producing cannabis - Appellant appealed against sentence and was granted bail - Appellant failed to attend at dates set for hearing of appeal - Appellant's solicitors had no instructions from appellant - Court struck out appellant's appeal - Court document stating that appeal finally determined forwarded to appellant's solicitor - Court records completed stating that appeal dismissed - Whether record perfected - Circumstances in which Court has jurisdiction to reopen appeal finally disposed of - Power conferred by rule 21 Supreme Court Criminal Appeal Rules 1996 - Whether Court has power to reopen appeal disposed of but not heard on merits - Whether dismissal of appeal could be set aside and appeal reopened. Petition for exercise of prerogative of mercy presented to Governor - Reference by Attorney-General of questions for determination by Court - Whether role of Court one of judicial determination or of expression of opinion to be used to assist in exercise of prerogative of mercy - Whether reasonable justification for appellant's failure to attend hearing of appeal - If so, whether dismissal of appellant's pending appeal a substantial miscarriage of justice. Sentencing Judge found that produce worth between $100,000 and $200,000 - Appellant sentenced on basis that some of crop for personal use and some for sale - Sentence 12 months' imprisonment, non-parole period 9 months (6 months with maximum remissions) - Whether sentence manifestly excessive - Extent to which efforts to rehabilitate while unlawfully at liberty to be taken into account in consideration of whether sentence manifestly excessive or in re-sentencing afresh. Appellant sought to adduce evidence not before sentencing judge going to appellant's state of mental health at time of sentence - Whether fresh evience should be received - Approach to be taken on appeal against sentence when fresh evidence received.
Counsel: MR S STRETTON - Solicitors: SYKES BIDSTRUP
(Court of Criminal Appeal: Doyle CJ, Bleby and Wicks JJ)
IN THE MATTER OF KYM BRAIN, QUESTIONS REFERRED TO THE JUDGES OF THE SUPREME COURT (SCCRM-99-104)
Court of Criminal Appeal: Doyle CJ, Bleby and Wicks JJ
DOYLE CJ: The Court has before it three matters.
The first is an application dated 11 August 1998 for an order setting aside the dismissal by the Court of Criminal Appeal on 28 November 1990 of an appeal by Mr Brain against a sentence imposed by the District Court on 10 May 1990. This application was referred to the Court of Criminal Appeal by a single judge on 14 August 1998.
The second matter is an application dated 3 March 1998 for an order extending the time within which Mr Brain can appeal against the sentence imposed by the District Court on 10 May 1990, and for leave to appeal against that sentence. A single judge granted the extension of time on 14 August 1998, and referred the application for leave to appeal to the Court of Criminal Appeal.
The third matter is a reference by the Attorney-General of two questions arising on a petition for the exercise of the prerogative of mercy. Section 369 of the Criminal Law Consolidation Act 1935 provides as follows:
"369. Nothing in this Part affects the prerogative of mercy but the Attorney-General, on the consideration of any petition for the exercise of Her Majesty's mercy having reference to the conviction of a person on information or to the sentence passed on a person so convicted, may, if he thinks fit, at any time, either - (a) refer the whole case to the Full Court, and the case shall then be heard and determined by that court as in the case of an appeal by a person convicted; or (b) if he desires the assistance of the judges of the Supreme Court on any point arising in the case with a view to the determination of the petition, refer that point to those judges for their opinion and those judges, or any three of them, shall consider the point so refereed and furnish the Attorney-General with their opinion accordingly."
Mr Brain has presented to His Excellency the Governor a petition seeking the exercise of the prerogative of mercy. He asks that the remainder of the sentence to be served by him be remitted. In connection with that petition the Attorney-General has referred the following questions to the Supreme Court with a view to the determination of the petition:
"1 Does the material referred to in the petition, in addition to any evidence or other material that the petitioner may wish to adduce, constitute a reasonable justification for his failure to attend at the hearing of his appeal by the Court of Criminal Appeal in 1990? 2 If the answer to question 1 is 'Yes' then in all the circumstances, would the dismissal of the petitioner's pending appeal to the Court of Criminal Appeal constitute a substantial miscarriage of justice?"
The Attorney-General states that if the second question is answered "Yes", then he refers the whole case to the Full Court to be heard and determined.
To understand the issues that arise on the two applications, and on the questions referred by the Attorney-General, it is necessary to have an understanding of what has occurred since the appellant pleaded guilty to an offence on 26 February 1990.
Mr Brain was charged with producing cannabis contrary to s 32(1)(a) of the Controlled Substances Act 1984 ("the Act"). He pleaded guilty in the District Court on 26 February 1990.
The prosecution alleged that the police had found 69 cannabis plants growing at Mr Brain's house. The police also found parts of cannabis plants in and around the house.
Section 32(5) of the Act then prescribed two penalty levels for this offence. The higher level applied if the number of plants exceeded 1000. Accordingly, Mr Brain faced a maximum penalty of a fine of $50000 or imprisonment for ten years or both.
Section 32(6) of the Act then provided that if the court was satisfied that Mr Brain had produced the cannabis solely for his own smoking or consumption, the maximum penalty was $500. Mr Brain claimed that he produced the cannabis solely for his own use. This was disputed by the Director of Public Prosecutions.
A judge of the District Court heard evidence. The prosecution evidence related to the number of plants, their likely yield, the value of that produce and certain items found in the house capable of suggesting that Mr Brain had sold or would sell some of the cannabis. Mr Brain gave evidence about his use of cannabis, and offered explanations for the items found in his house. The Judge delivered his ruling on 3 May 1990. The Judge found that the produce of the plants was worth between about $100000 and $200000. The Judge did not accept Mr Brain's evidence about the amount of cannabis that he consumed. Nor did he accept his explanations for the items that were capable of suggesting that Mr Brain had sold or would sell cannabis. The Judge concluded:
"There is no evidence of an organised ongoing commercial enterprise. I consider that the prisoner should be sentenced upon the footing that some of the crop was for his own personal use and that some of the crop was sold for financial gain. I rule against the prisoner's submission in so far as it seeks to rely upon s 32(6) of the Controlled Substances Act."
After the Judge delivered his finding, counsel for Mr Brain was granted a short adjournment to obtain instructions. Submissions were then made in mitigation. The Director of Public Prosecutions put submissions in relation to penalty.
On 10 May 1990 the Judge passed sentence. He said:
"Your purpose in sowing and cultivating the crop was in part to satisfy your personal needs and in part to sell the drug to others for financial gain."
He said that Mr Brain was not engaged in "an organised long term commercial enterprise". He imposed a sentence of imprisonment for twelve months from 3 May 1990, when Mr Brain was taken into custody and fixed a non parole period of nine months. He said that the size of the crop and the commercial element made it inappropriate to suspend the sentence of imprisonment. He noted that if Mr Brain earned maximum remissions, he would be eligible for release on parole after six months.
On 11 May 1990 an application for leave to appeal against sentence was filed. Leave to appeal was granted on 23 May 1990. Mr Brain was released on bail that day, pending the hearing of the appeal. He had spent 20 days in prison.
The appeal came on for hearing on 16 July 1990. The main ground was that the Judge had erred in finding that there was a commercial aspect to Mr Brain's production of cannabis. The ground of appeal complained that the Judge failed to distinguish between the onus on Mr Brain to prove that the cannabis was for his own use, and the onus on the prosecution to prove beyond reasonable doubt an aggravating factor, the intention to sell to others for financial gain. The complaint appears to have been that the hearing before the Judge was directed only to the former matter and not to the latter, and accordingly it was not open to the Judge to make the finding that he did. A further ground of appeal was that the Judge should have suspended the sentence.
When the appeal first came on, an application was made to call fresh evidence. That fresh evidence was evidence that was said to undermine the evidence given before the District Court Judge relating to the likely yield of the plants grown by Mr Brain, and the value of the produce. It was said that this would undermine the basis for the Judge's finding of an intention to sell cannabis. The court heard argument on the application to call fresh evidence.
The transcript records that Mr Brain was not present when the hearing began. I am unsure whether he attended at all.
On 17 July the court announced that the application to call fresh evidence was refused. The court records do not indicate if Mr Brain was present then. The matter was adjourned for submissions on the remaining issues.
The matter came on again on 23 July. Mr Brain was not present. His counsel informed the court that it was believed that Mr Brain had gone to England, although that information was not claimed to be wholly reliable. Counsel asked the court to hear the appeal. The court declined to proceed in Mr Brain's absence. The court revoked Mr Brain's bail, directed that a warrant issue for his arrest, and adjourned the appeal to a date to be fixed.
On 28 November 1990 the matter was called on again. Mr Brain was not present. His solicitors had no instructions from him and no information about his whereabouts. The presiding Judge said that the appropriate course was for the court to "strike out the appeal". He said:
"If your client turns up and you persuade the court to grant leave to extend time to appeal then we will think about it then."
"On the final determination of any appeal ... the Registrar shall give notice of such determination to the Trial Judge, to the appellant and to such other persons as the Registrar considers appropriate. "
"On the other hand, the language of para (b) would seem to convey that a reference thereunder is for the purpose of obtaining, not a judicial determination setting aside or reaffirming the conviction, but an opinion to be used to assist in the exercise of the prerogative of mercy."
"Thus, the combination of depression, substance abuse, chronic pain and personality difficulties combined with obvious social and relationship problems paints a picture of a person who was functioning marginally and vulnerable to dramatic decompensation with any added stress."
"Although he was likely aware of the ramifications of his behaviour at the time, his anxiety personality and vulnerable mental state by virtue of the depressive symptoms he would have been experiencing at the time, would have caused him recklessly to ignore his legal responsibilities. His fear of returning to gaol was overriding."
Had the question been whether, in light of the circumstances in 1990, it was in the interests of justice that the appeal now be heard and decided on its merits, I would have answered in the affirmative. That question is a significantly different question, and permits the consideration of a wider range of factors.
Accordingly, question two does not arise for consideration. Nor is it open to the Court to consider the Petition.
The right of appeal in criminal cases is conferred by s 352(1) of the Criminal Law Consolidation Act 1935 (SA). The right of appeal is a creature of statute. No right of appeal existed at common law.
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] SAStRp 59; [1931] SASR 376; Grierson v The King [1938] HCA 45; (1938) 60 CLR 431; The Queen v Shannon (1982) 32 SASR 5; R v Caruso (1988) 49 SASR 465; Postiglione v The Queen [1997] HCA 26; (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).
A number of decisions suggest that if the order of the Court disposing of an appeal has not been entered in the formal record, or has not been perfected, the Court may re-open the appeal and, if necessary, recall an order disposing of the appeal: R v Caruso at 477-478 White J, at 487 Legoe J and at 487-488 von Doussa J; Stephens (1990) 48 A Crim R 323 at 326-337; Lapa (No 2) (1995) 80 A Crim R 398 at 403-405; McNamara at 267-278; Postiglione at 299-300 Dawson and Gaudron JJ, at 315 McHugh J cf at 343 Kirby J.
A similar approach has been taken by the High Court in relation to decisions of a court exercising civil jurisdiction: see Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256 and Autodesk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300.
It is not the practice of the Full Court of this State, sitting as a Court of Criminal Appeal, to draw up and to seal its orders. In this respect, the practice in this State appears to be the same as that of other courts exercising a like jurisdiction.
The procedures of the Court of Criminal Appeal (as it is generally known, and as I will describe it) have been regulated by three sets of Rules this century. They are the Criminal Appeals Rules 1925 ("the 1925 Rules"), the Supreme Court Criminal Appeal Rules 1990 ("the 1990 Rules") and the Supreme Court Criminal Appeal Rules 1996 ("the 1996 Rules"). In each set of Rules there is a rule requiring the Registrar to give notice to the appellant and to certain other persons "on the final determination of any appeal": Rule 34(1) of the 1925 Rules, Rule 16 of the 1990 Rules and Rule 16 of the 1996 Rules. The 1925 Rules contain the following provision relating to the giving of notice by the Registrar to the Clerk of Arraigns:
"35. (1) The Registrar at the final determination of an appeal shall notify in such manner as he thinks most convenient to the Clerk of Arraigns the decision of the Full Court in relation thereto, and also any orders or directions made or given by the Full Court under the Act or these rules in relation to such appeal or any matter connected therewith. (2) The Clerk of Arraigns shall, on receiving the notification referred to in this rule, enter the particulars thereof on the Records of the Court of which he is such Clerk."
No such Rule is found in the 1990 Rules or the 1996 Rules.
Nevertheless, the practice of recording the outcome of an appeal to the Court of Criminal Appeal has continued. The practice is to record the outcome on the Information on which the conviction or sentence under appeal is recorded. The outcome is also entered into the Court's computerised record system.
In R v Caruso (1988) 49 SASR 465 this Court examined the local practice. It was dealing with the 1925 Rules. The Court treated the recording of the outcome of the appeal on the Information in the court of trial as perfecting or completing the record: at 478 White J, at 485-486 Legoe J, at 487 von Doussa J.
In the present case a notification to the appellant of the result of the appeal was prepared in the form provided by the Rules. It was despatched to Mr Brain's solicitor. I assume that it never reached the appellant. A copy of the form would have been sent to the trial judge and to other persons. The outcome of the appeal was recorded on the Information in the District Court. The result was entered into the computerised record system. That being so, the order of the Court of Criminal Appeal has been perfected and the appeal has been finally disposed of. No submission to the contrary was made.
To so conclude appears to be consistent with the practice of other courts of Criminal Appeal in Australia, to the extent that that practice is referred to in the cases to which I have referred.
It would be inconsistent with the cases referred to above to assert a general jurisdiction to reopen an appeal, once the appeal has been finally disposed of. To assert such a jurisdiction would mean that there is no real finality. In R v McNamara (No 2) [1997] 1 VR 257 the Court of Appeal of Victoria rejected a submission that there was a general, albeit exceptional, power to reopen an appeal although the appeal had been finally disposed of. So did the Court of Criminal Appeal of New South Wales in Saxon (1998) 101 A Crim R 71 in particular at 76-81. I agree with the approach taken in those decisions.
It would equally be inconsistent with the cases referred to, to permit a further appeal against sentence, an earlier appeal against sentence having been finally disposed of.
The cases identify two limited exceptions pursuant to which an appeal finally disposed of may be reopened.
In some States the rules permit an appellant to file a notice abandoning an appeal. This provision in the rules appears to be drawn from an equivalent provision in the English rules, and is of long standing. There is a line of decisions in Australia and in England permitting an appellant to withdraw a notice of abandonment, although such a notice operates as a final dismissal of the appeal. A reference to these cases can be found in R v Edwards (No 2) [1931] SAStRp 59; [1931] SASR 376 at 378-379 and in Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 at 437. Decisions to that effect were referred to and approved of in Saxon. The power to allow the notice of abandonment to be withdrawn, appears to rest on the premise that in such a case there has been no appeal heard on its merits. A number of the cases were reviewed by the Victorian Court of Appeal in R v McNamara (No 2). The court there emphasised the narrowness of this exception. The court said that the inherent power to permit a notice of abandonment to be withdrawn was (at 262)
"... only available to be exercised in circumstances where the notice can be said to be 'a nullity' in the sense that the applicant has failed to understand or appreciate the nature or effect of the document; i.e. that his mind did not 'go with his act' ..."
Rule 23 of the 1925 rules provides for the filing of the notice of abandonment. Rule 9 in the 1990 Rules and in the 1996 Rules provides for the filing of a notice of abandonment. Each of them provides:
"A notice of abandonment may be withdrawn by leave of the Full Court."
But there was no notice of abandonment in the present case.
Another exception to the finality of a perfected order disposing of an appeal was identified by the High Court in Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466. There, Deane, Toohey and Gaudron JJ, referring to a suggestion that once the judgment had been perfected, the jurisdiction of the relevant Court of Criminal Appeal was exhausted said (at 484):
"In a case such as the present where there has been an inadvertent denial of procedural fairness in a criminal matter by a Court of Criminal Appeal, it would ordinarily be preferable that the matter be dealt with by further application to that court."
They did not go on to decide the validity of the assumption that the Court of Criminal Appeal lacked jurisdiction. In Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 Dawson and Gaudron JJ said (at 300):
"The view was expressed in Pantorno that an intermediate Court of Appeal can entertain an application to remedy a denial of procedural fairness whether or not its order has been perfected."
Assuming this statement to represent the law of Australia, it is of no assistance to Mr Brain. There was no procedural unfairness or irregularity when Mr Brain's appeal was dismissed. At the time, rule 20 of the 1990 rules provided:
"In the event of an appellant not being present at any hearing of the appeal by reason of the appellant's escape from custody or failure to appear in accordance with the conditions of a bail agreement entered into by the appellant, the Full Court may summarily dismiss the appeal, consider it in the appellant's absence or make such other order as seems proper in the circumstances."
Rule 29(8) of the 1925 Rules is to the same effect, as is rule 20 of the 1996 Rules. That rule empowered the court to make the order that it made, disposing of Mr Brain's appeal.
It follows that neither of the two exceptions to the finality of a perfected order disposing of an appeal applies in the present case.
That leaves one factor for consideration. Mr Brain's appeal has been finally disposed of, but it has not been heard on the merits. Does that mean that the Court retains the power to reopen the appeal and to hear the appeal?
An argument along these lines has been advanced in some cases as a basis for allowing an appeal in which arguments not advanced in the previous appeal will be put. That argument has been rejected: see, for example, Vella (1991) 52 A Crim R 298 and R v McNamara (No 2) [1997] 1 VR 257 at 264. I agree with those decisions. An appeal is dismissed on the merits, even though not all available arguments are considered.
But in the present case, the merits of the appeal have not been considered at all, other than the application made at the hearing of the appeal to adduce fresh evidence. The grounds of appeal have not been addressed.
In a number of cases in which the point has been made that there can be no second appeal, and no reopening of an appeal that has been finally disposed of, reference is made to the fact of the appeal having already disposed of on its merits: instances of this are to be found in R v Edwards (No 2) [1931] SAStRp 59; [1931] SASR 376 at 378; in Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 at 434 and 435; in Stone (1989) 42 A Crim R 189 at 191; in Postiglione v The Queen [1997] HCA 26; (1996) 189 CLR 295 at 300 and at 315. Similar references can be found in other cases.
This suggests to me, although it is by no means conclusive, that in the cases to which I have referred the court has been directing its mind to an appeal that has been determined on the merits, in the sense that submissions in support of the substance of the appeal have been put to the court and considered and dealt with. None of the cases to which I have referred is a case in which the appeal was dismissed, without any hearing on the merits, on the grounds that the appellant had absented himself from the appeal in breach of his conditions of bail.
When the Court of Criminal Appeal dismissed Mr Brain's appeal, it is to be taken to have acted under rule 20 of the 1990 rules. That rule empowered the court to "summarily dismiss the appeal". That appears to be the power that was exercised. As well, remarks made by the presiding judge when the appeal was dismissed (set out earlier) suggest that the Court thought that the appeal could be reinstated.
Another matter to be considered is the provisions of rule 21 of the 1996 rules, which rule now applies. There was no equivalent in the 1925 rules, but rule 21 of the 1990 rules is identical. The rule provides as follows:
"The Full Court and any judge of the Supreme Court shall have power to make at any time and on such terms as the Full Court or such judge may think fit, any order or direction dispensing with compliance with these rules giving leave to amend or giving any other order or direction of the kind referred to in rule 3.04 of the Supreme Court Rules 1987 as though that rule was incorporated in these rules and as though the said rule 3.04 applied, mutatis mutantis to proceedings to which these rules apply."
Rule 3.04 of the Supreme Court Rules is a rule that gives the Court fairly wide and general powers to deal with procedural difficulties in the course of civil litigation. Some of the provisions of rule 3.04 appear to overlap with the provisions of rule 21. Rule 3.04(f) provides that the Court may:
"correct, revoke or vary any order by a subsequent order."
The cases dealing with this provision of the Rule have not finally determined its scope. However, having regard to the general terms in which it is adopted by rule 21 of the 1996 Rules, there is no reason why the power that rule 3.04 confers should be read narrowly.
I also bear in mind the express power to permit a notice of abandonment to be withdrawn. The existence of that power indicates that in some circumstances an appeal that has been dismissed can be re-opened.
I have come to the conclusion that as the merits of Mr Brain's appeal were not considered at all, and as the order dismissing the appeal is an order for summary dismissal, this Court has an inherent power to revoke that order and to resume the hearing of the appeal. It has power to do that even though the appeal by Mr Brain was finally disposed of. I consider that to recognise this limited exception is not inconsistent with the line of authority to which I have referred. As I have mentioned, I have not found any case dealing with the circumstances now before the Court. I consider that it is consistent with the interests of justice to conclude that the Court has an inherent power of the type identified by me. The power is available for exercise in very limited circumstances. I do not consider that to hold that such a power exists is likely to have consequences that are adverse to the public interest in the due administration of justice.
I do not consider that my conclusion is inconsistent with the cases that hold that an appellant will be permitted to withdraw an abandonment of an appeal only in quite exceptional circumstances. An abandonment of an appeal is, on its face, a deliberate decision by an appellant not to pursue the appeal. In a sense, it can be said to lead to a determination on the merits because the abandonment can be read as an acknowledgment by the appellant that the grounds lack any merit. That being so, it is appropriate that the court should allow the withdrawal of an abandonment only when there are circumstances affecting the quality of the decision to abandon the appeal. In the present case, there was of course no deliberate decision to abandon the appeal, although the dismissal of the appeal flowed from Mr Brain's failure to attend at the hearing.
In the alternative, I consider that the power conferred by rule 21 is wide enough to empower the Court to revoke the order dismissing Mr Brain's appeal. I do not consider that this power would apply to an order dismissing an appeal on the merits. But I can see no reason why, having regard to the terms of its adoption by rule 21, it should not be treated as applying to what amounts to a summary dismissal of a proceeding by reason of a default of the appellant, and without consideration of the merits.
I conclude that the Court has power to revoke the order dismissing Mr Brain's appeal. I consider that it is appropriate to exercise that power. As I understand the submissions of the Director of Public Prosecutions, he did not resist that course, if the Court had the power to do so. The circumstances as described by me, resulting in Mr Brain not attending at the hearing of the appeal, were quite exceptional. I consider that it is in the interests of justice that the merits of his appeal now be considered.
I do not accept the submission that the District Court Judge erred in making the findings be made about Mr Brain's intention to sell some of the cannabis that he had produced.
It must have been obvious, before the judge heard evidence, that the prosecution was asserting that Mr Brain had sold or would sell some of the crop. I can think of no reason why the hearing before the Judge should be treated as restricted to the issue of whether Mr Brain could establish that he produced the cannabis solely for his own smoking or consumption. After the Judge made his findings, counsel did not protest that the Judge had dealt with an issue that was not before him. I regard the absence of any protest as significant. If, as now seems to be submitted, the only issue before the Judge was the issue that arose under s 32(6) of the Act, I would have expected counsel to protest about the findings that the Judge made. At the least, I would have expected to find in the subsequent submissions in mitigation a submission that although Mr Brain had not brought himself within s 32(6), there was no basis upon which the Judge could or should find that Mr Brain had sold or would sell some of the crop. On the contrary, the subsequent submissions in mitigation proceed on the basis for an acceptance for the Judge's finding that there was a commercial element to Mr Brain's production of cannabis. I do not accept the explanation put forward for this, namely, that it was too late for counsel to protest. I therefore reject the submission that complains that the Judge was not entitled to make a finding that Mr Brain has sold or would sell some of the crop.
On the evidence before the judge, the findings that the judge made were clearly open to him.
I now turn to consider the appeal against sentence on its merits.
In the course of the hearing, the Court granted leave to Mr Brain to amend the grounds of appeal in support of the original appeal. The amendment adds a further ground of appeal, to the effect that in the light of further evidence that Mr Brain sought leave to adduce, the sentence is manifestly excessive. That grant of leave was necessarily conditional upon the Court revoking the order dismissing the original appeal. As in my opinion, the Court should revoke that order, it is appropriate to treat the grant of leave to amend as having taken effect.
On the psychiatric evidence now before the court, it is apparent that had Mr Brain's condition been fully investigated at the time he was sentenced, the court would have been informed that he was suffering from a fairly long standing depressive disorder.
The evidence to which I have just referred relates to Mr Brain's mental state and state of health at the time when he was sentenced. On an appeal against sentence, the court may receive fresh evidence if that evidence puts before the court facts which existed when the sentence was passed, but were not known to the sentencing judge: R v Smith (1987) 44 SASR 587 at 588 King CJ. That being so, the fresh evidence is evidence that the court can receive. As the Director of Public Prosecutions did not oppose its admission, it is not necessary for the court to consider whether there is an adequate explanation for the failure to put the material before the District Court in 1990.
There is also affidavit material before the court which indicates that since 1990 Mr Brain has sought treatment for his depression (it was first diagnosed in about 1991) and has not offended again. The material also indicates that Mr Brain has made some genuine efforts to rehabilitate himself. The fact that he surrendered voluntarily to the police, and sought to finalise his outstanding appeal, is also a matter that weighs in his favour.
Whether the court can take account of these matters on appeal is unclear. The observations of King CJ in Smith would suggest that it cannot. These matters do not relate to the circumstances as they were when sentence was passed.
On the other hand, the evidence about the treatment that Mr Brain received, and its results, might be admissible because it tends to confirm the diagnosis of depression, and to confirm that the depression is treatable. Evidence of Mr Brain's unpleasant experience in custody in 1990, and of the impact upon him of the time spent in custody this year, might also be regarded as relevant to the diagnosis of depression. To the extent that this material throws light upon Mr Brain's mental condition, I consider that it is admissible. I doubt whether the evidence of Mr Brain's efforts to rehabilitate himself is admissible in support of the appeal, but as will appear shortly, I consider in any event that the appeal should be allowed, and it is therefore unnecessary finally to decide the point.
Even if the material about Mr Brain's rehabilitation is to be taken into account, it can be given only limited weight. There are decisions that hold, for obvious reasons of policy, that a person who absconds while on bail cannot claim full credit for matters that would go in mitigation that arise only because the person was unlawfully at liberty. In Thompson (1987) 37 A Crim R 97 the Court of Criminal Appeal of New South Wales, on a Crown appeal against a sentence, allowed some benefit in fixing the sentence, but not the full benefit, for efforts made by the prisoner to rehabilitate himself while unlawfully at liberty, he having absconded while on bail. In Shore (1993) 66 A Crim R 37 the court was dealing with an appeal by the offender against sentence. It was a case in which, after arrest, the appellant absconded. He was arrested and sentenced many years later, and sought credit for good behaviour after he had absconded. In that case, the court said that the correct sentencing approach was not to ignore genuine rehabilitation during a period of unlawful liberty, but not to give it the same significance that it would otherwise attract. That case, of course, is not a case in which the court was dealing with good behaviour that occurred after the sentence was passed, and which was relied upon in support of an appeal against the sentence.
Although the Director of Public Prosecutions did not oppose the court taking into account Mr Brain's efforts to rehabilitate himself between 1990 and 1998, I consider that that evidence cannot be relied upon in support of the submission that the sentence imposed was manifestly excessive. As will appear in a moment, I consider that the evidence as to Mr Brain's mental state in 1990, properly taken into account on the appeal, does lead to the conclusion that the sentence should be set aside. That being so, I consider that it is permissible, in determining the sentence that should now be imposed, to give some weight to events since 1990, but I wish to make it clear that I take those matters into account only because the court is now required to determine the appropriate sentence afresh.
Having admitted the fresh evidence, what approach does the Court take in deciding whether to allow the appeal? In Smith at 589 King CJ appears to have taken the approach that, the evidence having been admitted, it was simply a matter of reconsidering the sentence imposed in the light of all the circumstances, including the further information. In Goodwin (1990) 51 A Crim R 328 the Court of Criminal Appeal of New South Wales admitted evidence of matters not before the sentencing judge, and concluded that intervention was justified (at 334) because:
"This material could well have had a significant effect on the sentencing judge, had it been placed before him."
In Eliasen (1991) 53 A Crim R 391 the Court of Criminal Appeal of Victoria said (at 394):
"It must follow that, if the Court does think that the additional evidence should lead to the imposition of a sentence different from that imposed by the judge, then even where the judge's sentencing discretion has not miscarried the case must be treated as one calling for appellate intervention. It has been said by this Court that if, on the material placed before it for the hearing of an application for leave to appeal against sentence, it considers that the sentence imposed was not an appropriate sentence, then the application may be allowed and a different sentence passed in lieu of that imposed below..."
"... once the evidence is admitted the question no longer is one as to whether the sentencing judge has erred in the exercise of his sentencing discretion. The question then which is for this Court to determine is whether on the material then before it a different and, if so, what sentence should be substituted for that passed by the sentencing judge. It is for that reason that I think this Court is relieved from the task of having to examine the various allegations made as to error on the part of the judge when selecting the sentence that he thought appropriate in the circumstances."
A similar approach was taken by the same Court in Knights (1993) 70 A Crim R 105 at 110. The approach taken in Eliasen was referred to with approval by the same Court in Rostom [1996] VicRp 60; (1995) 83 A Crim R 58 at 64. In Anderson (1997) 92 A Crim R 348 the Court of Criminal Appeal of Western Australia considered the matter. Malcolm CJ approved of the statements made in Eliasen to which I have referred. On the other hand, Murray J said (at 352):
"In those circumstances this Court, having received the relevant information, may say, as was my view, that had the circumstances in question been known by the learned sentencing judge he should not have sentenced in the way that he did. His discretion may therefore be seen to have miscarried in a way which, in the exceptional circumstances of this case, has been productive of a miscarriage of justice so as to require this Court to come to the conclusion expressed in terms of the Code, section 689(3) 'that a different sentence should have been passed' and therefore to make the orders to substitute the sentence which ought to have been passed ..."
Steytler J considered at some length the principles upon which the Court may receive evidence of events taken place after sentence is passed. His approach (at 363) was that it was appropriate to interfere because had the judge had the further material before him he would probably have passed a different sentence. In other words, he does not appear to have taken the approach that it was simply a matter of considering the sentence afresh.
In the present case I am satisfied that, if the sentence were considered afresh, the further material warrants the imposition of the lesser sentence than that imposed. I am also satisfied that if the further material had been before the sentencing judge, at the least he would have fixed a lower non-parole period than that that he fixed. I am satisfied, if it be necessary, that in the light of the further material it can be said that the original sentence is, to that extent, manifestly excessive. Accordingly, it is appropriate for the Court to intervene. The question of the precise basis upon which the Court acts can be left for another day.
On the hearing of the appeal, we were reminded by the Director of Public Prosecutions that the effect of the truth in sentencing legislation is to reduce the sentence that the District Court judge imposed to a head sentence of imprisonment for eight months, and a non-parole period of six months.
A sentence imposed by this Court today will not attract remissions. It does not appear possible to pass a sentence that will operate in the same manner as did the sentence passed by the District Court judge in 1990. Accordingly, it becomes necessary to recast the sentence completely. I am also mindful of the fact that the Court cannot fix a non-parole period if the head sentence is a sentence of less than one year: Criminal Law (Sentencing) Act 1988 s32(5)(a).
I consider that the appropriate sentence is a sentence of imprisonment for a period of four months. In fixing that sentence I take into account the further material placed before the Court, and the time Mr Brain has spent in custody. As I have already indicated, I arrive at that sentence bearing in mind that the non-parole period fixed by the District Court judge is reduced by law to one of six months, less credit for the time served. I also bear in mind that, under the sentence that I have imposed, Mr Brain benefits to the extent that he is not at risk of having to serve the balance of the head sentence after the non-parole period.
In light of the efforts that Mr Brain has made to rehabilitate himself, I consider it appropriate that that sentence should be suspended. I would suspend the sentence upon Mr Brain entering into a bond, on his own undertaking in the sum of $500 to be of good behaviour for a period of twelve months. Although, on the material before the court, Mr Brain has been of good behaviour for a period that substantially exceeds that period, I consider it appropriate to suspend the sentence on those terms, because that good behaviour occurred during a period while Mr Brain was unlawfully at large.
On the application dated 11 August 1998, I would order that the order of the Court of Criminal Appeal of 28 November 1990 dismissing Mr Brain's appeal against sentence be set aside. On the appeal against sentence instituted by the application filed on 11 May 1990, I would grant leave to amend the grounds of appeal and would order that the appeal be allowed. I would set aside the sentence imposed by the District Court, and substitute a sentence of imprisonment for four months. I would suspend that sentence upon Mr Brain entering into a bond on his own undertaking in the sum of $500 to be of good behaviour for a period of 12 months.
I would dismiss the application filed on 3 March 1998, for leave to appeal against the sentence imposed by the District Court on 10 May 1990.
I would answer the questions referred by the Attorney-General as follows:
Question 2. It is unnecessary to answer this question.
BLEBY J. I agree with the answers proposed by the Chief Justice to the questions referred by the Attorney-General. I agree with the reasons of the Chief Justice for doing so.
I also agree that this Court has power to revoke an order dismissing an appeal against sentence where the merits of the appeal have not been considered at all. I agree with the reasons of the Chief Justice for so holding.
However, this decision should not be seen as allowing the re-opening of an appeal whenever some new point is sought to be raised which was not argued on the hearing of the appeal. We are only here dealing with the unusual situation where there has been no consideration of the merits of the appeal at all. It is not every application to revoke such an order in those circumstances that will necessarily succeed. There must be good reason for the Court to exercise its discretion to set aside the order. The facts placed before this Court showing the reasons for Mr Brain not appearing on the hearing of his appeal were not disputed and were not the subject of argument as to their admissibility on the hearing of the appeal. Mr Brain voluntarily surrendered himself to the police early in 1998. It was that surrender which gave rise to the chain of events that has occurred since then. In all those circumstances the interests of justice require that his original appeal should be heard on the merits, and I agree that the order dismissing the appeal should be set aside.
As to the appeal itself, in my opinion, the original sentence imposed by the sentencing Judge was correct on the information then before him. It is the very information which gives rise to the rescission of the order dismissing the appeal which becomes relevant for the purpose of the sentence itself. As I have said, that was admitted in most unusual circumstances, and this decision should not be seen as suggesting that sentences can be reconsidered on appeal merely by virtue of some supposedly relevant fact occurring after the date of sentence. The usual strict rules as to the admissibility of such material on the hearing of an appeal will always apply.
I agree that leave should be given to amend the notice of appeal, that the appeal should be allowed and that the orders proposed by the Chief Justice should be substituted. Otherwise I agree with the reasons that he has given.
I too would dismiss the application for leave to appeal filed on 3 March 1998.
WICKS J. I would agree with the orders proposed by the Chief Justice for the reasons he gives. I have nothing to add.
As to the questions referred by the Attorney General, I would answer as follows:
In giving this answer I agree with the reasons given by the Chief Justice.
R
BRAIN No. SCGRG-90-231, SCGRG-98-51, SCGRG-99-104 Judgment No. S358 [1999] SASC 358
(1938) 60 CLR 431
(1982) 32 SASR 5
(1988) 49 SASR 465
(1997) 189 CLR 295
(1992) 176 CLR 256
(1993) 176 CLR 300
(1989) 166 CLR 466
(1974) 9 SASR 163
(1987) 44 SASR 587
(1996) 189 CLR 295