[1991] FCA 296; (1991) 55 A Crim R 349

Criminal Law - trial - conviction - appeal - death of appellant before hearing of appeal - whether appeal abates

Federal Court of Australia Act 1976, para. 24(1)(b)

Counsel for the respondent: R. Webster with M. Chillicott

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On 21 March 1990 Kiran Allister Sen ("the appellant") was found guilty by a jury on a charge of entering premises as a trespasser with intent to engage in sexual intercourse with a complainant without consent and on another charge of attempting to suffocate the complainant with intent to murder her. On 6 April 1990, Kelly J sentenced the appellant to imprisonment for a term of four years in respect of the first charge and a term of seven years in respect of the second charge, the sentences to be served concurrently. A non-parole period of four years was fixed.

2. A notice of appeal against both convictions and sentences was filed in this Court on 6 April 1990. However, on 8 April 1990 the appellant was found dead in his cell by a prison officer.

3. The appeal has been listed before the Court to-day for determination of the question whether the appeal has abated. Counsel for the Crown submits that it has. However, Mr O'Donnell of counsel, who we have permitted to address argument to the Court on behalf of the appellant's father, submits that the appeal has not abated and that the Court should proceed to hear and determine it. He concedes that the appeal cannot proceed unless and until the father is granted probate or letters of administration of the appellant's estate and is substituted as a party to the proceedings.

4. The right of appeal to this Court from a judgment of the Supreme Court of the Australian Capital Territory is found in para. 24(1)(b) of the Federal Court of Australia Act 1976, which provides, inter alia, that the Court "has jurisdiction to hear and determine ... appeals from judgments from the Supreme Court of a Territory". A "judgment" includes a sentence: vide s.4 of the Act. The Act is silent as to the effect of the death of an appellant after an appeal has been duly instituted by him.

5. The question whether an appeal against conviction in a criminal matter abates upon the death of the person convicted appears to be free from Australian authority. The researches of counsel have not discovered any decision of an Australian court touching on the question.

6. However, we were referred to English and Canadian authorities which support the view that, at least in a case in which a fine is not imposed, an appeal instituted by a person against his conviction on a criminal offence abates upon his death.

7. In R v Rowe (1955) 1 QB 573, a case where a prisoner who had been sentenced to imprisonment had given notice of appeal but had died before the hearing of the appeal, the Court of Appeal declined to permit the appellant's widow or executor to continue the appeal unless they could show a legal interest in the appeal. Lord Goddard said that in a case in which a fine had been imposed on a person who died before his appeal was heard the Court might allow an executor or administrator to continue the appeal. He said (at 575):

"Supposing, as sometimes happens, a man is convicted on

indictment and fined (pounds) 500; the money has to be

paid, and the Crown can recover that money whether he is

alive or dead, for it can recover it against his estate,

and, therefore, it would be an injustice if the executors

were not allowed to appeal and to say that the conviction

was wrong, because, if it was wrong, the money would be

saved.

It may be that it is artificial to say that if there is

a pecuniary penalty an appeal might lie, whereas if corporal

punishment or imprisonment is imposed there cannot be an

appeal, but at the same time I do not see any ground on

which we can say in the present case that anybody has an

interest. It may be that the widow would be very glad to

have her husband's name cleared, but we cannot take any

notice of that sentimental interest. There is nobody

affected now by the judgment of the court because the

judgment was a sentence of imprisonment and the prisoner has

died. It would be a very novel step if, in these

circumstances, we said that the court would entertain an

appeal."

8. In Rowe the deceased appellant had been convicted on a charge of false pretences and sentenced to a term of imprisonment.

9. In R v Jefferies (1969) 1 QB 120, a person was convicted on indictment of conspiring with others to cheat and defraud. He was sentenced to a term of imprisonment and ordered to pay (pounds) 1,300 towards the prosecution's costs. He gave notice of application for leave to appeal against the conviction and sentence (including the costs order), but died before his application was heard. His widow and executrix sought leave to continue the application for leave to appeal. The Court of Appeal held that it had no jurisdiction to hear the application. In that case the powers of the Court to hear the appeal derived from, and were confined to, those given by the Criminal Appeal Act 1907. Section 3 of that Act provided that "a person convicted on indictment may appeal under this Act to the criminal division of the Court of Appeal ...". Widgery L.J., speaking for the Court, said (at 124):

"We take it to be a general principle that whenever a

party to proceedings dies, the proceedings must abate,

unless his personal representatives both have an interest in

the subject-matter and can by virtue of the express terms of

a statute (or from rules of court made by virtue of

jurisdiction given by a statute) take the appropriate steps

to have themselves substituted for the deceased as a party

to the proceedings. Although in this case the estate would

benefit if the widow were allowed to continue the appeal and

were successful, there is no procedure whereby she can be

substituted as an appellant and we do not see how there can

be an inherent power in the court to allow this when the

appeal is itself the creature of statute."

10. Rowe and Jefferies were referred to in Re Collins and The Queen (1973) 41 DLR (3d) 232. In that case the Ontario Court of Appeal applied the principles enunciated in the English cases in holding that an appeal from the order of a judge dismissing an application for an order prohibiting the prosecution of a criminal indictment abated with the death of the appellant.

11. In the present case, as in Jefferies, the powers of the court are derived from, and confined to those given to it by statute. Although sub-s.24(1) of the Federal Court of Australia Act does not state in terms that an appeal from a judgment of the Supreme Court of a Territory may only be brought by a party to the proceeding giving rise to judgment, we think the sub-section must be construed as giving a right of appeal only to such a party. The deceased appellant was the only person entitled to bring an appeal against the sentences imposed upon him by Kelly J. There being no provision in the legislation entitling the deceased's father or executor or administrator to prosecute the appeal, we must hold that it has abated. We do not think it can be said that the appellant's father has any legal interest in the subject matter of the appeal. Even if he were the executor or administrator of the appellant's estate, we do not think he would be in any stronger position to prosecute the appeal. There is no suggestion in the present case that the outcome of the appeal will have any effect on the appellant's estate.

12. During the course of argument a question arose whether the possibility of an order being made against an appellant under the Criminal Injuries Compensation Act 1983 (ACT) would give his executor or administrator such an interest as would prevent the appeal abating. We would prefer to leave that question open. On the facts of the present case it does not arise because, under the provisions of that Act as they stood at all relevant times, no order for payment of compensation could have been made against the appellant or could now be made against his estate.

13. Mr O'Donnell referred us to Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596. We do not think what was decided in that case is relevant to the present question. It is true that Mason C.J., Deane and McHugh JJ recognised (at 599) that the parents of a deceased child whose death is the subject of an inquest have a common law right to be heard in opposition to a potentially adverse finding in relation to the deceased, unless that right is excluded by provisions of the Act under which the inquest is held. But we do not think that the existence of such a right is relevant to the determination of the question whether an appeal against conviction abates on the death of the appellant.

14. There may be cases in which, whether because of the discovery of fresh evidence or for other reasons, doubt arises as to the guilt of a person who is convicted of a crime and who dies before his appeal against conviction is heard. It would seem that s.475 of the Crimes Act 1900 (NSW) in its application to the Australian Capital Territory might well provide a means by which the correctness of such a conviction may be examined and so afford a means by which a deceased's family may have the correctness of a conviction considered. But we do not think the correctness of a conviction may be examined by prosecuting an appeal which has abated.

15. The appeal having abated, it should be dismissed.