R v HOLTEN

PARTIES: Crown Shane Eugene Holten

SOLICITORS: NSW DPP Sydney Regional Aborigianl Corporation Legal Service

1 Mr Shane Holten was convicted by a magistrate of assaulting a police officer in the execution of his duty. He now seeks to bring an appeal in this Court against the conviction, and also the sentence imposed by the magistrate following that conviction. Such an appeal is commonly referred to as an "All Grounds Appeal".

2 However when the notice of appeal was filed in this Court the ground of appeal was stated as "I am appealing the above sentence because the penalty is too severe". Such an appeal is commonly referred to as a "Severity Appeal". What Mr Holten seeks now is that I make orders to enable him to pursue an All Grounds Appeal despite the fact that this matter commenced in this Court as a Severity Appeal.

4 At once it should be noted that this is a case where if I can do what the Appellant seeks, then I should clearly do it. The affidavit filed in support of the Appellant's Notice of Motion revealed that he, and his legal representative, always intended that the appeal to this Court would include an appeal against his conviction, but through administrative error the form was filled in in such a way as to indicate only an appeal against severity of the sentence.

5 Further the prosecution was alerted to the mistake some time ago, and there is no suggestion that the prosecution would be in any way prejudiced if the Severity Appeal were now converted to an All Grounds Appeal.

6 In circumstances where the prosecution suffers no prejudice, this is not a case where the Appellant should be lightly denied the chance to have his conviction overturned because of an administrative error made by those representing him.

7 Thus, as I have said, if I can grant the relief which the Appellant seeks, I should do so. The question is, however, whether I have the power to do what the Appellant asks me to.

8 The Appellant was convicted in the Local Court on 16th August 2006. The hearing had taken place a few days earlier on 11th August 2006. The Notice of Appeal was signed by a solicitor from the Aboriginal Legal Service, apparently a solicitor not familiar with the Appellant's matter. As I have already noted the only ground of appeal stated on that Notice of Appeal concerned the severity of the penalty. That Notice of Appeal was filed in the District Court Criminal Registry on 13th September 2006 and a listing date of 28th September 2006 was allocated.

9 On 28th September 2006 there was no appearance of the Appellant nor anyone representing him. The matter was thus stood over to 19th of October 2006 and fresh notices were issued.

10 On 19th October 2006 the appellant was represented by Mr Carroll. It was he who had appeared for the Appellant in the Local Court and it was he who had received instructions from the Appellant to lodge an appeal against conviction.

11 It was also Mr Carroll who asked the Aboriginal Legal Service to lodge an appeal on behalf of Mr Holten. However he did not see the Notice of Appeal before it was filed and it was only when his attention was drawn to the fact that no one appeared on 28th September 2006 that he subsequently appeared for Mr Holten on 19th October 2006.

12 It seems at this stage that Mr Carroll became aware of the administrative mistake which led to a Severity Appeal being lodged instead of an All Grounds Appeal.

13 A transcript of what occurred before Acting Judge Gibson on the 19th October 2006 was provided to me. Mr Carroll told his Honour,

"what has occurred is that Mr Holten's appeal was filled out by the ACLO, the Aboriginal Legal Service, the liaison officer, and said it was a Severity Appeal. The intention of Mr Holten was for this matter to be an All Ground Appeal."

14 The Judge directed that there be a transcript taken out (transcripts are not usually provided for Severity Appeals but are of course necessary for All Grounds Appeals) and asked Mr Carroll "is he in time or have you got to make an application for leave?" 15 Mr Carroll replied,

"I think the distinction between a Severity Appeal and an all ground appeal is merely administrative. Once the appeal's in it is sufficient, so no". 16 It is to be noted that at 19th October 2006 the time limit of 28 days specified in s11 Crimes (Appeal and Review) Act ("the legislation") had expired but it was within the 3 month period referred to in s13 of that Act. If Mr Carroll had made an application for leave to appeal against the Appellant's conviction when he appeared before Judge Gibson on 19th October 2006 it is unlikely that that would have been opposed and the issue which I now have to determine would not have arisen.

17 Various call overs of the matter then took place until the matter was listed for the hearing of an application for leave to appeal on the 2nd April 2007. Before that date the DPP was served with the Notice of Motion and affidavit in support of the Notice of Motion seeking, as I have mentioned earlier, that "the grounds of appeal be amended from Severity to an All Grounds Appeal".

18 It is the Appellant's case that an application to amend the appeal from a Severity Appeal to an All Grounds Appeal was made orally by Mr Carroll when he appeared before Judge Gibson on 19th October. Mr Franklin, who appears for the Appellant at this stage, referred to the fact that when that application was being made it was outside the 28-day period referred to in s11 but within the 3-month period referred to in s13. It was implicit in Mr Franklin's submission that it was his understanding of the law that the application to convert an appeal from severity to all grounds had to be made within the 3 month period. As will appear, I do not agree that that is correct.

19 Mr Franklin submitted that an application to amend grounds of appeal did not have to be in writing but even if it did then he relied on s62. He said that this was beneficial legislation and should be given a beneficial interpretation.

20 He pointed out that on 19th of October there was no objection taken by the Crown to Mr Carroll's suggestion that the appeal could be converted without leave being sought and if there had been such an objection then leave to appeal could have been sought at a time within the 3 month cut off referred to in s13.

21 The Crown argument is that changing an appeal from severity to all grounds is not simply a case of amendment, but it is the bringing of a completely new and different form of appeal. The Crown submitted that if Mr Franklin's argument was correct then all Severity Appeals could be amended to All Grounds Appeals at any time whether within the 28 day period, within the 3 month period, or even outside that 3 month period.

22 The Crown pointed to the requirement that there be grounds of appeal included in writing on the Notice of Appeal and suggested that an amendment to those general grounds of appeal should also be in writing.

23 The Crown argument is that severity and conviction appeals are 2 separate sorts of appeals so a failure to include in a Severity Appeal a ground relating to conviction cannot be rectified simply by amendment and that a fresh Notice of Appeal should have been filed on the 19th October (leave being necessary to do so). The Crown's argument is summarised in the proposition that there are 2 separate appeals provided for, one relates to severity and one relates to conviction and one can't be amended to become the other.

24 Part 3 Crimes (Appeal and Review) Act 2001 provides for appeals to this Court from a decision of the Local Court. S11(1) provides

"any person who has been convicted or sentenced by a Local Court may appeal to the District Court against the conviction or sentence".

25 By subsection 2 that appeal must be made within 28 days after sentence is imposed.

26 S14(2) requires that the Notice of Appeal must state "the general grounds of appeal".

27 S20 sets out what the District Court may do after hearing an appeal, with different outcomes available depending on whether the appeal is one against conviction or one against sentence.

28 Importantly the legislation allows Notices of Appeal to be amended. S62(2) provides that an Appeal Court hearing an appeal may amend a Notice of Appeal if it is satisfied that the Notice is capable of amendment and ought to be amended.

29 There are some matters of note in the legislation. First s11 doesn't make specific provision for a single appeal against both conviction and sentence. It is the experience of this Court that often a Notice of Appeal is filed which states that the ground of appeal is that the appellant is not guilty, but when that appeal is dismissed a challenge is then made to the sentence imposed by the magistrate. In such circumstances the practice has been to hear the sentence aspect of the appeal after (either explicitly or implicitly) allowing amendment of the Notice of Appeal to add an additional ground challenging the sentence. If the Crown in the present case is right then such amendment is not permissible where, as in most cases, the time limits have expired.

30 Secondly the same time limit applies to appeals against conviction and appeals against sentence, even to the extent of providing that a conviction appeal cannot be made before sentence is imposed. Thus amending a Notice of Appeal to the effect that the appeal is against conviction rather than sentence does not allow an appellant a back door way to avoid a time limit.

31 Matters of practice need also to be noted. I have already referred to the general practice of allowing a sentence appeal to follow an unsuccessful conviction appeal even if the original Notice of Appeal did not make a specific challenge against the sentence imposed.

32 Another matter of practice concerns the form used by appellants. It seems that there are various versions of this form used by various people and which form is used depends on who the appellant approaches to provide him or her with the form.

33 The version of the form currently available on the Lawlink site is in a slightly different format to the Notice of Appeal in the present case. In other cases, particularly it seems where the appellant is in custody, the form used makes reference to the Justices Act, an Act which was repealed on 7th July 2003 by the Justices Legislation (Repeal and Amendment) Act.

34 Even more surprisingly the form currently on Lawlink (and it must be remembered that is the official Attorney General's website to assist members of the public) to be filled in by those seeking leave to appeal has as its subheading "section 123 Justices Act" and contains references to "Part 4A Justices Act". In these circumstances it is worth repeating that the Justices Act was repealed almost 4 years ago.

35 To return to the Notice of Appeal, the various forms used have other curiosities. For example the form available on Lawlink contains advice to the appellant to cross out those grounds of appeal which are not applicable from a list of 3. The second of those options is "I am appealing the above sentence because the penalty is too severe" (emphasis added) yet nowhere in the form above that entry is there any space for the sentence to be recorded.

36 The form does not appear to be made pursuant to any rule or regulation. Perhaps some attention needs to be paid to it, and to others on lawlink as well.

37 I mention these matters not because they are directly relevant to the resolution of the present appeal but to suggest that to strictly confine an appellant to matters appearing on a Notice of Appeal would seem inconsistent with the lack of rigour with which the various forms of the Notice of Appeal appear to have been drafted.

38 The legislation has as its purpose the creation and regulation of means to challenge a magistrate's conviction or sentence. The consequences of not allowing such a challenge can be grave indeed. There are few orders made by an inferior Court which are not susceptible to appeal, because the criminal justice system recognises that not all decisions are perfect and that where error is made it is better to correct it than to ignore it. This is especially the case where the decision which may be wrong is a decision to convict a person of a crime.

39 The power of amendment in s62(2) is also to be borne in mind. That provision gives a judge a discretion as to whether to allow an amendment. Thus in interpreting the legislation it is to be noted that the exercise of that discretion controls whether amendments will be made, and giving judges the power to decide whether to allow an amendment is more consistent with the purpose of the legislation than to preclude amendments being made irrespective of the consequences of that outcome.

40 In the light of s62(2), which clearly contemplates amendments being made to a Notice of Appeal, the question to be asked in the present case is not whether the amendment sought can be made, but whether it can't be.

41 The submissions of both the parties seem to have been distracted by what occurred on 19 October and the fact that, at that time, the 3 month period provided for in s13 had not expired. But what happened on 19 October, and s13 are irrelevant to the present matter, because I am satisfied that there is nothing in the legislation which prevents an appellant who has lodged an appeal within the 28 day period provided for in s11 seeking to amend the relevant Notice of Appeal, even to the extent of appealing against conviction where the original Notice of Appeal stated that the appeal was against sentence.

42 To hold otherwise could easily result in an injustice. Indeed an injustice would surely result in this case if the Crown's argument is correct. The appellant would be denied the opportunity to challenge his conviction because of an error made by his lawyers, and that would be the case even though it was made known to the prosecution from a relatively early stage that an error had been made.

43 An interpretation of the legislation which avoids injustice is to be preferred over an interpretation which does not.

44 To accept the Crown's argument would be to artificially divide the grounds of appeal which are referred to in s14(2) into 2 categories: those where the grounds of appeal relate to a particular aspect of the conviction or sentence challenged; and those where the grounds of appeal identify whether what is challenged is a conviction or a sentence.

45 I will give an example to illustrate what I mean. The Crown did not suggest that if an appellant included in a Notice of Appeal a ground of appeal suggesting that a sentence was challenged because of an asserted failure to take sufficient account of subjective matters, then the appellant would later be precluded from amending the Notice of Appeal to include a challenge to the sentence on the basis that the magistrate had misunderstood the maximum penalty. The Crown accepted that an amendment to grounds of that nature could be made after the 28 day time limit had expired. Why then should a different approach be taken to grounds of appeal which identify whether it is the sentence or conviction which is challenged? The answer of course is that no different approach should be taken because there is not legislative warrant for so doing.

46 The result is that this Court has power to amend the grounds of appeal so that the Notice of Appeal covers both conviction and sentence. As I explained earlier, in the circumstances of this case, if this Court has the power to do what the appellant asks it should do so, there being no prejudice to the Crown and no fault on the part of the appellant.

47 The Crown no doubt would be concerned, probably justifiably, at an outcome which saw sentence appeals becoming conviction appeals a lengthy time after the appeal was first filed. But nothing in this judgment is intended to suggest that amendments such as that sought here are simply there for the asking. S62(2) is an important constraint and the question of whether an amendment "ought" be allowed will be a matter for consideration by the judge hearing the application. All that I am deciding in this case is whether such amendment can be made and the question of whether it ought to be must be resolved on a case by case basis.

48 The particular relief sought by the appellant includes an order that "the grounds of appeal be amended from Severity to an All Grounds Appeal". Some greater precision perhaps is necessary so that the order I make reflects the legislation.

49 The order I make is therefore: The Notice of Appeal signed on behalf of the appellant on 24 August 2006 is to be amended to include the following ground of appeal in addition to the ground of appeal presently appearing, "I am appealing the above conviction because I am not guilty".

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