Riddell v R

Factual background

1. On 15 April 2003, a shipping container landed at the port of Fremantle in Western Australia (destined for Sydney) on board the ship P&O Nedlloyd Adelaide Voyager 63 South. The container had been shipped from Port Klang in Malaysia on 9 April 2003 but originated in the Netherlands.
2. Inside the container were 36 freezers, three of which were packed with approximately 171 kilograms of whitish powder containing a high percentage of MDMA (with a pure weight of 136.9 kilograms). The AFP estimated its street value at approximately $92 million. Federal Agent Brett Smith gave evidence that this sum was capable of being turned into approximately one and a half million ecstasy tablets at 25% purity.
3. The Crown case was that the Appellant was the Australian principal in the conspiracy. Significant persons involved in the conspiracy were Johannes Francois, Wai Kwong Chen and a man known as De Jong, all of whom lived in The Netherlands. Other co-conspirators included Dano Milicic, Nicholas Pollis, Craig Small, Matthew Walsh, James Whatley, Jessica Somogyi and Mrs Cheng.
4. Milicic, Pollis, Small, Walsh and Whatley were said to be subordinate to the Appellant. The Appellant's role was at least equal to that of Francois, both of whom were near the top of the international conspiracy, with De Jong at the top of the hierarchy. Francois, a professional drug dealer in Europe, wanted to export drugs to Australia but did not want to come here himself. He met his co-conspirators on neutral territory such as in Malaysia, Hong Kong and Belgium.
5. Cheng's role was more senior than Pollis', and was described on sentence as 'highly significant'. Pollis played a mid-range role within the syndicate, and attended and arranged meetings between Cheng and more junior members of the syndicate. Milicic's role was below that of Pollis but above that of Walsh in the group's hierarchy. Walsh's role was above that of Small, but below that of the others. Small played a junior role, confined to customs clearance.
6. The Appellant recruited Pollis, who worked for him at his media event business in Surry Hills, Loop Domain Pty Ltd ('Loop Domain'). Pollis in turn recruited Milicic, Walsh, Whatley, Somogyi and Small, with the Appellant's knowledge.
7. The Crown alleged that the Appellant initially met with Francois and Cheng in Amsterdam in late 2001 and again in Malaysia in January 2002, where they had business discussions that did not relate to the importation of drugs. The Appellant had business experience in the fields of marketing, dotcom businesses, laser games arcades and the running of bars and in travel businesses, and had a legitimate interest in Cheng's computer business, IT Castle, and assisted Cheng with marketing advice.
8. Subsequently, the Appellant met with Cheng and Francois in Hong Kong and with Cheng in Sydney on a number of occasions for the purposes of the conspiracy and spoke to both of them on the phone. The Appellant directly dealt with Francois and Cheng about the timing of the importation and matters related to its organisation including in what goods to conceal the drugs. For example, in late November 2002, the Appellant met with Cheng and Francois in Hong Kong to discuss importing the drugs in computer monitors and offering to sell them to an Australian company established by Walsh, Whatley (and possibly Milicic) called Muma International, to try to make it look like a legitimate business transaction
9. The Appellant introduced Pollis to Cheng in mid-August 2002 for the purposes of the conspiracy, knowing that Pollis would introduce Cheng to Whatley. The Appellant was further aware that Whatley was subsequently replaced by Small in 2003 and that Small was introduced to Cheng by Pollis for the purposes of the conspiracy.
10. The key steps in the conspiracy undertaken by the Appellant, on the Crown case, can be summarised as: (a) meeting with Francois and Cheng in Amsterdam in December 2002 before the conspiracy commenced, subsequently meeting with Cheng for the purposes of the conspiracy in Hong Kong and Sydney, and meeting with Cheng and Francois for the purposes of the conspiracy in Hong Kong and having phone conversations with each of Cheng and Francois for the purposes of the conspiracy at various times; (b) the recruitment of Pollis and through him, either directly or indirectly, the recruitment of Milicic, Walsh, Whatley, Somogyi and Small; (c) introducing Pollis to Cheng in mid-August 2002 for the purposes of the conspiracy knowing that Pollis would introduce Cheng to Whatley, his subsequent awareness of the replacement of Whatley by Small, and the introduction of Cheng to Small by Pollis for the purposes of the conspiracy; (d) direct dealings with Francois and with Cheng in relation to the timing of the importation and matters related to its organisation; and (e) acting as a conduit between Australian-based members of the conspiracy and Cheng, for example: (i) arranging meetings between Cheng, Pollis and Whatley on 18 August 2002 at the Mansions Hotel in Kings Cross and at the Centennial Hotel in Woollahra on 8 December 2002, and attending meetings with Cheng and Pollis but leaving before Whatley arrived, which on the Crown case was not a coincidence; (ii) arranging for Cheng to meet Whatley at the Clock Hotel in Surry Hills in October 2002 while Pollis was away in Melbourne; (iii) resolving the email problems between Likom (a company established by Cheng in Malaysia for the purposes of the conspiracy, which was offering to sell Muma International computer monitors at low prices) and Muma International, suggesting Cheng send through another email and a fax; a number of telephone intercepts recorded these coded exchanges between the Appellant and Cheng including calls C346, 351, 361, 372 and 374; (iv) making a payphone call to Cheng on Cheng's 'Ma Yu' covert phone (named after the woman who purchased the phone for Cheng in China Town) on 20 February 2003; and (v) phoning Cheng's girlfriend in Shenzhen on 25 April 2003, as arranged with Cheng, after the MDMA had arrived in Sydney to confirm that everything was okay with the shipment of the container; the Appellant and Cheng had met at the Loop Domain office the previous day and that the Appellant told him he thought the office was bugged so they agreed that the Appellant would contact Cheng through his girlfriend; however, unbeknownst to the Appellant, Cheng had been arrested on 24 April 2003 on his way to the airport to catch a flight out of Australia.
11. The Appellant was arrested on 26 April 2003.
12. The Crown alleged that the Appellant's involvement in the conspiracy may have been motivated by financial gain. He was the managing director and principal shareholder of Loop Domain, into which he had invested substantial capital. The evidence demonstrated that the company was encountering serious financial difficulties in the months leading up to the importation.
13. The evidence against the Appellant, on the Crown case, included both direct and circumstantial evidence. The direct evidence was that of the co-conspirators Pollis and Cheng, which was supported by the telephone intercept and surveillance evidence. The circumstantial evidence, which on the Crown case was sufficient in itself to prove the case against the Appellant, was primarily the contents of intercepted telephone calls.
14. Cheng, Pollis, Walsh, Milicic and Small all pleaded guilty to their involvement in the conspiracy. Small was the first to enter a plea of guilty on 31 October 2003, followed by Pollis on 23 February 2004, Cheng on 14 February 2005, Walsh on 23 June 2005 and Milicic on 21 February 2006. Cheng, Pollis and Small all signed undertakings to provide evidence at their co-conspirators' trials, including the Appellant's. Pollis, Small and Cheng were sentenced to terms of imprisonment for their parts in the conspiracy.
15. Whatley had formerly worked for Ansett Airlines in freight forwarding and was relied on by the conspirators for his knowledge of Australian importation and Customs procedures and documentation. He was arrested on 31 October 2002 and agreed to assist police straight away. From that time until mid-February 2003 he was working as an informant for the AFP. He was not charged and was indemnified for his role by the Commonwealth Director of Public Prosecutions. He was also indemnified by the New South Wales Attorney-General in relation to his local drug dealing.
16. Walsh told Pollis on 1 February 2003 that he no longer worked with Whatley because of some kind of falling out between them but he had a replacement in Small. Small worked for a firm which contracted to a company called Maersk Logistics, an international company dealing in import logistics and freight forwarding.
17. Somogyi was charged but the charges against her were discontinued.
18. As the Crown understands it, Francois resides in the Netherlands and has not been apprehended or charged in relation to the matter.
19. Whatley, Cheng, Pollis and Small each gave evidence at the Appellant's trials. Cheng and Pollis's evidence directly implicated the Appellant, but Small's did not. Small had never met or spoken to the Appellant. Walsh and Whatley had never met the Appellant either but Whatley stated he had heard of the involvement of a person called 'Andy' high up in the conspiracy, who the Crown alleged was the Appellant.

The adjournment application

1. When the appeal was called on for hearing the Appellant appeared for himself. However, Mr Waterstreet of counsel, who with Mr Michael King of counsel had represented the Appellant at the trials, sought leave to appear as amicus curiae to assist the court any way he could, particularly because of his knowledge of what transpired at the trials. Leave was given to Mr Waterstreet but on a limited basis. The Court was of the view that care was necessary because acknowledgments or statements by Mr Waterstreet concerning events at the trial could not now bind the Appellant who had not instructed Mr Waterstreet at the hearing of the appeal.
2. At the outset of the hearing of the appeal the Appellant sought an adjournment. The Crown opposed the adjournment. Two bases were put forward by the Appellant.

(a) First basis - lack of readiness

1. The first basis was more particularly articulated in the 36 page document attached to a summons filed by the Appellant on 28 April 2015 (the filing of the summons is referred to below). The matter is identified in paragraph 5 and Part II paragraphs 53 to 58.
2. The Appellant said that he need an adjournment to complete what he said was the necessary cross-referencing by him of the transcript in respect of the various grounds of appeal which he sought to put forward. He said that completion of this had not been possible for a variety of reasons. A great deal of the work that he had done some time ago was lost as a result of various moves he had experienced between prisons. That resulted in the loss of both hard copy documents that he had prepared and the loss of material on a laptop. The Appellant said that he had subsequently been rebuilding the material so that he was in an adequate position to argue his appeal.
3. The Appellant said that he lodged his grounds of appeal in 2012 after Corrective Services removed trial and legal materials from his cell. His full analyses and transcript references were unavailable at the time of lodging the Grounds of Appeal because they had been destroyed when the security box housing his personal computer had been bolt cropped in 2008 and peripherals including a hard drive had gone missing. He said further that vital judgments, transcripts and exhibits remained unproduced and he noted that trial recordings had not been made available so that redacted transcripts could be reinstated to reflect the true record. He said that he had rebuilt the grounds (scil. submissions?) at a rate of nine hours per week from 2009 to 2012.
4. The Appellant submitted that he required six months unfettered PC access so that he could rebuild matters of fact and apply the law. He complained about the limited number of hours per week that he was able to access the material that he had and his computer to do what he called the rebuilding of the material. He submitted that all the necessary material had not been made available despite the multiple attempts by him to obtain it. He blamed Corrective Services for destroying his material and not giving him sufficient time with a computer to rebuild it.

(b) Second basis - need for affidavits

1. The second basis put forward was raised, apparently for the first time, at the hearing of the appeal. That was that the Appellant wished to obtain affidavits from Mr Waterstreet and Mr King about particular incidents at the trial that were not apparent from reading the transcript that was available.
2. This matter was first raised by Mr Waterstreet and not the Appellant, but once the matter was raised the Appellant sought to rely upon it. It was raised only as a side wind when the question of whether Mr Waterstreet could appear for the Appellant as amicus was being discussed.
3. The following exchange occurred: ADAMS J: The question is whether we should give you leave to appear as amicus curiae. I must confess I find that that a little bit difficult. If you are going to make statements of fact, as counsel, they might be accepted by admissions or facts asserted by the appellant. But since you are not retained, they cannot have that status. WATERSTREET: I hear your Honour, but could I interrupt and say that why I cannot be his advocate is because it may be required, and I accept it will be required, that I make an affidavit as to events in the last trial, the subject of his ultimate appeal. … ADAMS J: That is a somewhat different matter. Do I apprehend you to say that in the event of an adjournment, you would expect that Mr Riddell would wish to adduce, through you, evidence about matters as to which the transcript is silent? WATERSTREET: Yes, and perhaps to other matters that the transcript adverts. BEECH JONES J: Why has that not been done? WATERSTREET: There has been no solicitor. BEECH JONES J: Is there a solicitor now? WATERSTREET: No. DAVIES J: But there has not been any suggestion, as far as I can see, in Mr Riddell's file that he would be doing that, Mr Waterstreet. This is entirely new to me. WATERSTREET: I think he has been, with due respect to Mr Riddell, advocating for me to do it, but I was reluctant, as it were, as a stranger to the proceedings without a solicitor or without the trappings of legal representation where it might be viewed as putting on an affidavit for a client that would not carry the proper imprimatur. My shyness in relation to that was not shyness in relation to the extent of the affidavit, but shyness as to the procedural-- ADAMS J: Are you saying that Mr Riddell asked you to make an affidavit as to these matters and you have hitherto declined to do so? WATERSTREET: I have not declined to do so, but I have not got the transcript. ADAMS J: Are you telling the court that Mr Riddell has requested you to make an affidavit of these matters, but you have so far not done so - this much you are saying? WATERSTREET: Yes, this much I'm saying. ADAMS J: And your explanation for that is that you felt some embarrassment because of the fact that he had no legal representation? WATERSTREET: Plus I did not have the transcript and -- ADAMS J: He could have given you that. DAVIES J: When did he ask you, Mr Waterstreet? WATERSTREET: In recent months. BEECH JONES J: When was the first time? WATERSTREET: I have to say that that was a matter he was agitated about, but not the only matter. It, sort of, shaded into the side because of other matters and it was always my intention that when the time came, I would assist Mr Riddell as far as I could with an affidavit. There was also my junior, Mr King, in it and I think and I don't know if he was going to do the same but I would expect he would. DAVIES J: But the request was only made by Mr Riddell a couple of months ago, is that right? WATERSTREET: To be fair to Mr Riddell ADAMS J: Just a moment. You were saying, Mr Waterstreet that this was not Mr Riddell's fault? WATERSTREET: Yes, I think it is a matter that Mr Riddell has referred to and a friend of Mr Riddell from England, Mr Roberts, has requested from time to time that I assist Mr Riddell and I have been, but the matter of the affidavit was a matter referred to. I think there was a mention of it -- … ADAMS J: I'm sorry, I am having some difficulty with the chronology. You said that several months ago Mr Riddell asked you to make an affidavit about matters which occurred in the trial, but which are not referred to in the transcript? WATERSTREET: Yes. ADAMS J: And that you, as I understand it, did not respond to him about that matter, or did you respond to him? WATERSTREET: I said I would do it. Then the matter continued without that occurring ADAMS J: So he didn't press you again? WATERSTREET: I think he pressed me and I said I would do it. ADAMS J: But you didn't do it? WATERSTREET: I didn't do it until I felt I was in a position I could do it and, hence, my agitation with others to advocate for him so I could have an opportunity to give the affidavit that Mr Riddell wanted, as it were, in a semi regular fashion at least. ADAMS J: You are informing us as amicus of what followed from you being asked to make an affidavit. Is that the limit of the role you seek to undertake? WATERSTREET: Yes, subject to any other matter that I could be of assistance with to either Mr Riddell or to anyone else, or the Bench. I think Mr Riddell wants to argue his situation today. ADAMS J: That is a different matter. We need to deal with your application first. BEECH JONES J: You are just here to tell us that you are willing to provide an affidavit on a topic relevant to the ground of appeal? WATERSTREET: Yes.
4. Mr Waterstreet then outlined the three matters in respect of which evidence could be given by him and/or Mr King.
5. The first matter was said to be prejudicial statements made by the Judge to the Appellant. It was described in this way by Mr Waterstreet: WATERSTREET: The substance was that he pointed at Mr Riddell and said words to the effect, "I know you, don't give me the evil eye. I know your type. I know what you're on about. Just stop looking at me like that". And I'm hesitating but it was a bit longer than that but it was remarks directed at Mr Riddell suggesting he was giving him the eyeball, I think his Honour remarks, and the words "evil eye" and words similar to that in front of the jury, which were intended -
6. Mr Waterstreet said that he thought this occurred in the first week of the trial and that he applied for a discharge of the jury but that was refused.
7. The second matter concerned an interchange between the Trial Judge and Mr Waterstreet, not reported in the transcript, where the Trial Judge is supposed to have said to Mr Waterstreet about some proposition he was putting: You can take that up to your friends in the Court of Criminal Appeal.
8. The third matter concerned a communication between the Trial Judge and the Crown concerning a sick juror and the failure to communicate that to Mr Waterstreet.
9. The Appellant raised a fourth matter requiring an affidavit from Mr Waterstreet as follows: I also asked if they would write an affidavit about the missing deliberations because that is missing too and the words and then the words of the retrial when they said, "guilty, we want my money because we've been here far too long and never want to sit on a jury ever again". The Appellant asserted that what the jury said, that is, the text of the jury notes themselves, was not transcribed.

The history of the appeal

1. It is necessary to say something about the history of the appeal.
2. The four Notices of Application for Extension of Time to Appeal and the filing of the Notice of Appeal some three years and six months out of time have already been noted. The following is a summary of directions hearings and call-overs before judges of the Court as well as the Registrar. No. Date Coram Application Orders/Directions/Notes
3. 28 February 2013 Registrar Crompton Production of documents from AFP and Customs. Listed application before Duty Judge. Adjourned to 28 March 2013.
4. 28 March 2013 Registrar Crompton Matter listed before a judge (Justice Garling) for case management on 10 April 2013. Recommendation that Legal Aid reconsider applicant's application for legal assistance.
5. 10 April 2013 Justice Garling Mr Waterstreet appearing as amicus - recommendation that applicant receive assistance from legal aid. Stand the matter over for 2 weeks (to 24 April 2013) for Mr Waterstreet to look at the papers. Access granted to Mr Waterstreet to the documents filed by applicant in CCA Registry. Applicant sought access to PC to prepare legal documents for bail application. Stood over before Hoeben CJ at CL to 26 June 2013 for Direction (to determine whether Legal Aid assistance available and whether applicant willing to accept assistance).
6. 24 April 2014 Hoeben CJ at CL Applicant sought further time so Legal Aid can assess application for legal assistance. Recommendation that Dept of Corrective Services provide applicant access to PC. Applicant to let court know on next occasion whether he is in a position to go ahead with bail application. Hoeben CJ at CL: (p 9 TS): 'The circle is going to stop at some point, Mr Riddell, because the reason this matter has been placed before me is we either bring your proceedings on for hearing, or we strike them out.' Recommend that applicant be given all reasonable assistance, incl. access to a computer, to prepare for his bail application and any other documents which he wishes to rely on in support of that application.
7. 26 June 2013 Hoeben CJ at CL Orders for production of documents. By 4pm on Wednesday, 24 July 2013, if the applicant is to rely on new submissions, is to send a copy to both the Court and the Crown. If he intends to rely on documents already with the Court, he is to prepare a page setting out and identifying the documents he will rely on. See "Submission" document, dated 21 June 2013, p 2 (referred to in the transcript). Crown to reply by 4pm on Wednesday, 7 August 2013. Stood over before Hoeben CJ at CL to 9.30am on 29 August 2013 for directions. Crown to provide applicant with disc containing Crown and defence openings and summing-ups from applicant's retrial.
8. 29 August 2013 Hoeben CJ at CL Applicant sought bail. Chief Judge at CL determined the bail hearing should not go ahead based on state of submissions. Stood over before Hoeben CJ at CL to Thursday, 3 October 2013 so applicant may consult with Mr Waterstreet so as to prepare his appeal. See "Suggested Order of Business, 3rd of 10, 13" document (referred to in p2 TS). Recommendation that applicant be given increased access to a computer than he is currently receiving.
9. 3 October 2013 Hoeben CJ at CL Includes: Stood over before Hoeben CJ at CL to Wednesday, 30 October 2013. • Greater access to computer HH advised applicant to re-frame submissions on bail application only to include strongest ground of appeal, so as to demonstrate strength of applicant's appeal prospects pursuant to s 30AA of the Bail Act. • Court to set date in November or December for bail application Hoeben CJ at CL read response from corrective services relating to his request for more computer time. The response stated that the applicant had misled the Court and that he was receiving 5 hours of computer use per weekday, which was substantially more than other inmates were receiving (see p 2-3 of TS). HH directed applicant to provide details of the time he has access to the computer each day.
10. 30 October 2013 Hoeben CJ at CL See written submissions filed in relation to this mention. HH directed applicant to prepare a specified list of documents that he required access to from the Crown in relation to the preparation for his appeal and to send that to the Crown. HH directed applicant to 'put together your bundle of material which you are going to rely upon in your bail application, including your submissions, and if you are going to rely upon evidence what the evidence is.' HH directed applicant to pick his best point of appeal for his bail application (as above). Stood over before Hoeben CJ at CL to Monday, 2 December 2013 for further directions.
11. 5 December 2013 Hoeben CJ at CL Stood over before Hoeben CJ at CL on 13 March 2014 for further directions.
12. 13 March 2014 Hoeben CJ at CL Applicant commenced civil proceedings to compel corrective services to allow him greater computer access. HH said (at TS p 4): 'In relation to your appeal I will simply take no further action until I hear from you through Registrar Crompton as to what has happened to your civil summons.' HH directed Crown to contact Corrective Services to encourage them to provide the applicant with a cell to himself, rather than a shared cell, so he may continue to prepare his application.
13. 22 May 2014 Registrar Crompton S 77 Order to appear 5 June 2014
14. 5 June 2014 Registrar Crompton S 77 Order to appear 17 July 2014
15. 17 July 2014 Registrar Kenna Callover/case management on 28 August 2014. Note: 'Hoping to lodge civil matters w/in 2 to 3 wks' (Relating to proceedings involving a constitutional challenge to the Bail Act, etc)
16. 28 August 2014 Registar Crompton Listed for callover on 25 September 2014.
17. 25 September 2014 Registrar Crompton Listed for Callover on 23 October 2014.
18. 23 October 2014 Registrar Crompton Listed for Callover on 20 November 2014.
19. 20 November 2014 Registrar Crompton Listed for Callover on 29 January 2015.
20. 29 January 2015 Registrar Crompton Listed for Callover on 26 February 2015.
21. 26 February 2015 R A Hulme J Applicant not ready to proceed - range of outstanding issues. Adjourned for mention on 13 March 2015. Bail refused. Appeal listed for hearing on 23 October 2015 before CCA. Orders:
22. 13 March 2015 R A Hulme J Applicant complained again about lack of access to computer. Applicant complained about missing transcripts. 1. A document not exceeding 20 typed pages to be filed, in which submissions in support of the grounds of appeal are set out in a succinct summary, is to be filed before 28 August 2015. 2. Listed on 23 October 2013 for hearing with a maximum of 3 hours for oral submissions. 3. Crown submissions to be filed by 25 September 2015. 4. If the matter cannot be heard on 23 September because of a failure of the applicant to prepare the matter for hearing it will be a matter for the Court to consider summary dismissal on that occasion on the basis of a failure to prosecute the appeal diligently.
23. 8 September 2015 Registrar Van der Veen Listed for callover on 10 September 2015.
24. 10 September 2015 Registrar Van der Veen Appeal hearing date of 23 October 2015 confirmed.
25. 9 October 2015 Registrar Van der Veen Crown granted extension until 12 October 2015 to file and serve written submissions.

1. Contrary to the orders of R A Hulme J made on 13 March 2015 the Appellant did not file a document not exceeding 20 typed pages in which submissions in support of the grounds of appeal were set out in a succinct summary fashion. Instead, on 28 April 2015 he filed a summons seeking leave to appeal from the judgment and orders of R A Hulme J. Apparently in support of that summons he filed a 36 page document entitled "Submissions in Support". At one level this document appeared to be submissions in support of his summons to overturn the judgment of R A Hulme J. At another level the material in this document appeared to be submissions in support of his appeal.
2. In addition, the Appellant filed three lever arch folders of documents which he told the Registrar at the Directions Hearing on 10 September 2015 were his notes.
3. At that Directions Hearing the Appellant clarified that his submissions in support of the appeal were principally to be found in a ten page outline which appears to have been the document headed "Grounds of Appeal" filed on 7 November 2012 and which the Appellant entitled "Annex D1". The Appellant also clarified that a document which he described as a 25 page summary, but which appears to have been the 36 pages attached to the summons that sought to appeal from the judgment of R A Hulme J, also summarised the grounds of appeal and constituted a submission.
4. The Appellant informed the Registrar that his appeal was not ready and could not be heard on the date fixed. The Registrar told the Appellant that his appeal would be going ahead and that he would need to have his material in a state where he could assist the bench to understand what his arguments were. The Registrar confirmed the hearing date of the appeal.
5. The Appellant thereafter filed a Notice of Motion on 17 September 2015 which sought to review the Registrar's interlocutory orders made on 10 September 2015, sought to quash the orders made by R A Hulme J on 13 March 2015, sought an order adjourning the hearing of the appeal and sought leave to "add the following documents" to the submissions that he had already made in respect of the appeal - these documents were entitled by him as being Ex1, Ex2, Ex4 and Ex16. In the first instance they appear to be documents that the Appellant was relying on in an application being made to the High Court (quite what that application concerned was never made clear). Attached to that Notice of Motion was a document entitled "Submission in support of motion as filed with this court" consisting of 26 pages. Some but not all of the material was repetitive of material already filed.
6. On 12 October 2015 the Crown filed its submissions. It was in these submissions that the grounds of appeal were said to constitute the 11 matters identified in those submissions to which reference has already been made.
7. On the day before the appeal was to be heard the Appellant forwarded to the Court a number of documents as follows: (1) a ten page document consisting of 30 paragraphs; (2) a document entitled "The Applicant's reply to the "the Crown Appeal Book'" consisting of 23 paragraphs and 15 pages; (3) a document entitled "Annex 'Crown Appeal Book'" consisting of 11 pages; (4) a document entitled "Annex AB1 appeals bail application" consisting of 29 paragraphs and 11 pages.
8. The first of these documents said that the Crown submissions were only delivered to the Appellant on 21 October 2015 which gave him five hours to respond. He said also that his hands had been affected by arthritis which meant that he had been reduced to typing the reply to the Crown's submissions with two fingers. Nevertheless, the Appellant was able to produce the four extensive documents described.

(b) The need for affidavits

1. Nowhere in the documents filed by the Appellant was reference made to the need to obtain affidavits from Mr Waterstreet and/or Mr King about events at the trial. In fact, in the submissions filed with the Notice of Motion on 17 September 2015 the Appellant referred in paragraphs 43 and 44 to what were described as histrionic outbursts during the trial and in footnote 46 (referred to in paragraph 44) the following appeared: Other outbursts such as "Is this another point for your colleagues at the CCA Waterstreet" were edited from transcripts and recordings purportedly lost. Waterstreet has written affidavits confirming this. (emphasis added)
2. That statement was untrue. As Mr Waterstreet informed the Court, he had been requested by the Appellant to provide an affidavit as to events at the last trial, and said that he would do it but did not do so.
3. Nor did the Appellant raise the need for such affidavits at any of the Directions Hearings including the more recent ones before R A Hulme J and the Registrar.
4. No explanation has been offered by the Appellant why he only made a request of Mr Waterstreet in the last few months to obtain this evidence. The appeal ground covering this matter (the bias ground) was contained in the Grounds of Appeal filed 7 November 2012.
5. Of the three matters Mr Waterstreet identified as needing to be dealt with by an affidavit, the second ([39] above) is inconsequential. If it was said it was, at highest, part of a robust exchange between counsel and the Judge. It could not conceivably give rise to concern about bias.
6. In relation to the first matter ([37] above) the Crown identified the full extent of the exchange which took place on 23 October 2006 being the 26th day of the trial (Appeal Book 6408): HIS HONOUR: I allow the question. CROWN PROSECUTOR: Q. What I'm asking you is do you recall discussing chocolate with Pollis earlier-- HIS HONOUR: Mr Riddell, do not make gestures please from the dock - WATERSTREET: Your Honour, I think he was talking to me. HIS HONOUR: No well he was looking at me Mr Waterstreet. I don't want gestures from the dock, thank you. Go on Mr Crown. …
7. The examination of the witness continued. When that concluded for the day the following exchanges appear: IN THE ABSENCE OF THE JURY WATERSTREET: Your Honour, I want to get some instructions on the matter in which you admonished Mr Riddell. HIS HONOUR: Yes, you get some instructions Mr Waterstreet. WATERSTREET: The second matter is-- HIS HONOUR: Mr Waterstreet, let me make it quite plain, I am not going to tolerate your client laughing and making gestures after I make rulings. You can get whatever instructions you want Mr Waterstreet, but let's get it quite plain now. WATERSTREET: Your Honour, I was party to looking at Mr Riddell at that time. HIS HONOUR: Yes, well I looked at him with my own eyes too Mr Waterstreet, and I see quite a lot from up here. More than people often think. WATERSTREET: No your Honour, I don't dispute that but I think your Honour was - without getting instructions - your Honour was premature in admonishing him in front of the jury. HIS HONOUR: You may hold that view Mr Waterstreet, your client has been - I'll call it animated in the dock for some time. When it involves me, I'm not going to allow it. I've got a pair of eyes too Mr Waterstreet. WATERSTREET: Anyway, I'll get instructions on that. HIS HONOUR: You do that. …
8. On the following morning the following occurred in the absence of the jury: WATERSTREET: … The second thing your Honour is your Honour's comments yesterday in front of the jury, your Honour I wanted to say - HIS HONOUR: It wasn't a comment really Mr Waterstreet,but anyway go on. WATERSTREET: Well rousing on Mr Riddell. Your Honour I just wanted to say in front of the jury that Mr Riddell would apologise to your Honour if your Honour took offence. He didn't mean anything and he was looking at me and then looked to your Honour without any intention at all. It was during chocolates [sic] your Honour. HIS HONOUR: Mr Waterstreet the way it appeared to me was this, that your client throughout the last trial and in this trial has been particularly animated. He, when anyone gives any evidence that your client doesn't like, your client makes faces, laughs and grins at them and I thought, in fact I have little doubt of it, that the impression that your client was trying to convey to the jury yesterday, after I ruled perfectly properly in favour of the Crown asking a question in re-examination, was to try to convey to the jury that I was being unfair to him entirely contrary to the fact. That's the part I took will not put up with that in a court that I am running. If your client wants to say something to the jury through you then that's fine-- WATERSTREET: No. HIS HONOUR: --you do it. But I'm not going to put up with that kind of behaviour. I want it to be quite plain. WATERSTREET: Your Honour I won't - your Honour's comments are out there and on the transcript. Your Honour I just want to address what might be an adverse inference, certainly an adverse matter that the jury could by impression gather that Mr Riddell was in someway acting as your Honour has said. So that just to even the balance your Honour I want to say on his behalf that he apologies if your Honour took offence. HIS HONOUR: That's fine. Although you may not always be able to see it Mr Waterstreet, the jury watches your client as juries watch all accused people. They see what's going on. Anyway it's entirely up to him, but I've made my point.
9. When the jury was brought in Mr Waterstreet said this: WATERSTREET: And secondly your Honour could I, on behalf of Mr Riddell apologise to your Honour if your Honour took offence at what my client was doing. He had no intention at all to offend your Honour and he was talking - he was looking at me and then glanced away your Honour. HIS HONOUR: Alright.
10. On 25 October in the absence of the jury the following exchange took place: WATERSTREET: Your Honour the second thing is your Honour I read the transcript where I on behalf of Mr Riddell apologised for whatever view your Honour took of what Mr Riddell did, your Honour what is left hanging is an impression that it is somehow connected with the trial. That Mr Riddell's actions which your Honour reprimanded him for in my view irrelevant to any matter the jury has to consider (sic). What's left in the air your Honour is a statement by your Honour which I'm asking for that whatever interchange took place it is irrelevant to the issues before the jury. A similar matter happened in trials from time to time and my submission a statement by the trial judge to the effect that from time to time people get emotional and do things that in the heat of the moment, not these words, but words along these lines, but we regret doing or words to that effect. What's left if your Honour doesn't give a direction that what took place including what your Honour said -- HIS HONOUR: There's nothing wrong with what I said Mr Waterstreet I was perfectly within my rights. WATERSTREET: Views differ. HIS HONOUR: Well they might, but my view is the one that counts Mr Waterstreet, here at least and my remarks were entirely justified. I'm not putting up with. that in my Court. WATERSTREET: No, your Honour, but your Honour will I submit realise that that is irrelevant to the jury's task. HIS HONOUR: Self-evidently Mr Waterstreet. WATERSTREET: Yes, but not self-evident to the jury. HIS HONOUR: What are you suggesting that I say to them? WATERSTREET: You remove completely from your mind anything that I said or that I said Mr Riddell did and temper it with Mr Riddell's apology to your Honour if what he did your Honour thought might have been intention, he says it's not, but it is irrelevant to any issue before the Court and it's a difficult task to sit here, I'm talking about Mr Riddell, day after day and sometimes people get emotional. HIS HONOUR: I'm certainly not going to say that. It wasn't a question of being emotional your client was trying to send messages to the jury denigrating my ruling that's what he was doing. I'm certainly not going to gloss over that with some fancy words Mr Waterstreet. I certainly will not do that. WATERSTREET: My instructions, my observations, were that he was looking at me and then I thought your Honour said he was looking at you. HIS HONOUR: He was and it was perfectly plain what he was doing Mr Waterstreet.
11. When the jury came in his Honour said this amongst other things: Two things I want to say to you before we begin. The first is this. The day before yesterday late in the afternoon with all that goes with late in the afternoon there was an exchange between Mr Riddell and I and I'm not going to go into that save to say this that that exchange had nothing to do with the matters that you are to determine in the trial, just put that entirely out of your minds.
12. The transcript demonstrates that Mr Waterstreet's memory of the event was not entirely accurate as to what occurred and when in the trial it occurred, but we do not intend any criticism of him for that because the events happened a long time ago and there were in fact two trials involving the Appellant where Mr Waterstreet appeared.
13. The significant point is that the transcript speaks for itself and no affidavit about the matter from Mr Waterstreet could take the matter any further. No discharge of the jury was sought and none of the missing judgments could relate to the matter.
14. The third matter raised by Mr Waterstreet concerned a communication between the Trial Judge and Mr Saunders at the CDPP. The background was this. On Monday, 20 November 2006 being the 44th day of the trial the Court received a note that a juror was sick. The Trial Judge observed that it was the same juror who had been away on the previous Friday, and there had apparently been three other days when the same juror had been away. Prior to being called into Court the jury sent a note to the Judge which read: If the jury member has been off now for the fourth time, can this member be dismissed and continue with 11 members?
15. A Sheriff's Officer was sent out to locate the juror. A report must have been made by the Sheriff's Officer to the Judge late on the afternoon of 20 November. The information was that the juror had some sort of gastric illness and had been vomiting. The juror would not be in Tuesday, 21 November but would be in by Wednesday, 22 November.
16. At the time this information was received the Judge's Associate had left for the day. In those circumstances the Judge rang Mr Saunders at the CDPP to inform him of that fact and that the Court would convene at 10am on Tuesday, 21 November but the jurors would not be coming in.
17. At 4:52pm Mr Saunders sent a facsimile to Mr Waterstreet and Mr King in these terms: Dear Charles and Michael, His Honour Judge Hosking phone (sic) me a short time ago, in the absence of his Associate who had gone home, and said that the sick juror has advised the Court that he will not be in tomorrow, but he will be in on Wednesday. The Court will still convene tomorrow at 10am although the Jurors are not coming in. His Honour asked me to convey this information to you. The Crown proposes to make an application tomorrow that the sick juror be discharged pursuant to the Jury Act. I understand that Mr Riddell will be in attendance tomorrow. We refer to Wu v The Queen (1999) CLR 99 and Brownley v The Queen [2001] 207 CLR 278.
18. The following day the Judge handed to counsel the statement from the Sheriff's Officer regarding what he had ascertained about the juror. The Crown then made an application for the discharge of the juror. The following exchange then took place (AB 7367.8): WATERSTREET: The information as of yesterday was contained in the note that Mr Saunders gave us, and perhaps we should tender a copy of that. HIS HONOUR: Sorry which note is this Mr Waterstreet? WATERSTREET: A note of an exchange Mr Saunders had with your Honour. CROWN PROSECUTOR: We've got a copy. Your Honour spoke to Mr Saunders and he sent an email to our friends. [HIS HONOUR:] Well I had to speak to Mr Saunders Mr Waterstreet myself because my associate had to go for the afternoon, she ordinarily would have made the call, and I had to ring somebody to alert you both to the fact that this juror wouldn't be in today. That's the only reason I phoned Mr Saunders. Somebody had to be contacted. WATERSTREET: I understand that. CROWN PROSECUTOR: Perhaps I should had (sic) a copy up and it could go with the court file. WATERSTREET: Mr Saunders was kind enough to - just make sure it's the same one. MFI #87 NOTE OF EXCHANGE BETWEEN HIS HONOUR AND MR SAUNDERS WATERSTREET: Your Honour that letter advises us that your Honour received information that the juror has advised that he will not be in tomorrow but will be in on Wednesday and then the rest of it proposes the application.
19. Although the Appellant in his various written submissions makes allegations that the Judge inappropriately discussed other matters with Mr Saunders there is no evidence to justify those allegations. Again, the significant point in relation to the affidavit material is that there is nothing that Mr Waterstreet or Mr King could say in an affidavit that could add to the knowledge of what transpired as is disclosed in the transcript and MFI 87 being the note of the exchange between the Trial Judge and Mr Saunders.
20. As to the final matter of jury notes when the verdict was returned, the transcript discloses clearly in what the Trial Judge said to the jury what had been contained in their jury notes. The Trial Judge said (AB 10398): The first part of your note is, we have been advised that we will not be called for jury duty again in the next three years. Could you please put in an application to extend this due to the fact of the length of this trial.
21. The Trial Judge then dealt with that and then said (AB 10399): The next part of your note reads in this way, "due to stress that some members have been placed under", hardly surprising, "could we please apply for one weeks' additional pay to allow us personal time prior to resuming work.
22. That transcript shows that the Trial Judge read the jury's notes onto the record. It is difficult to see what an affidavit from Mr Waterstreet or Mr King could add to what is contained in the transcript in that regard. It is impossible to believe that their memory after more than eight years could be more accurate than the contemporaneous transcript.
23. Accordingly, to the extent that the adjournment was sought to obtain affidavit evidence from the Appellant's counsel at the trial, the application was refused.

(a) Lack of readiness

1. Apart from the Appellant's desire to obtain the affidavits, the adjournment was sought on the basis that there was missing material that the Appellant needed and that, with the material which he now had, he needed extra time, perhaps another six months, to get the material into the order that he wanted it. It was to present his written material at manageable length and to focus his submissions and to support them by transcript references. This, he said, involved his starting to read all of the material again.
2. As far as missing material was concerned, it included parts of the transcript of the earlier trials which is not available as well as material in relation to the sentencing of the co-offenders. The missing material included the opening by the Crown and the first hour of the Crown's closing address. There were also said to be three interlocutory judgments missing.
3. The information from the Crown was that the missing parts of the opening and closing addresses were not transcribed at the time. Subsequent enquiries ascertained that the tapes no longer exist. As unfortunate as that may be, it is clear that there is no purpose served by delaying the hearing of the appeal because that material is not available. It never will be available.
4. As far as the missing judgments were concerned, the Appellant was unable to provide information about the issues with which those three judgments are concerned. That being so, there is nothing to suggest that their unavailability has anything but a speculative effect on the outcome of the appeal.
5. As far as the sentencing material is concerned, the Appellant submitted that he needed all of the material considered by the Sentencing Judges for the co-offenders. The Appellant said that he needed that for what amounted to a parity argument that he wished to put forward in relation to the sentencing.
6. This involves a misunderstanding of what is involved in considering the issue of parity. Neither the Sentencing Judge nor this Court is concerned to examine any justification for the findings made by the judge who sentenced a co-offender. Those findings are accepted as providing the basis upon which the sentence was imposed. The Remarks on Sentence in respect of all the co-offenders are available. It will be neither necessary nor permissible to go behind that material.
7. Finally, as to the unavailability and late provision of material to the Appellant, the position appears to be this. In the Appellant's submissions in support of his Summons filed 28 April 2015 he says in footnote 78, relevant to paragraph 53: At least today the applicant has almost doubled PC access, has secured 95% of trial materials, and has the guts to take an intransigent if not hackneyed system that cares not for individualised justice. The applicant had to wait until 2014 for 95% trial materials to be delivered to him after ten appearances in this court. (emphasis in original) The Crown fairly acknowledged that on 8 July 2015 some further material, said to be the equivalent of one extra folder, was sent to the Appellant. It is apparent, therefore, that the absence of material from the trials cannot be regarded as any justification for the failure of the Appellant to be ready to proceed with his appeal.
8. As to the Appellant's submission that he needs further time to get his material into order and to cross-reference the transcript in the way he wishes, no appellant, whether unrepresented or not, can be given unlimited time to make the necessary preparation. Even accepting the difficulties that he has experienced whilst in custody in terms of access to the material and a computer, the Appellant has had ample time to prepare his appeal. If 95% of the material had been provided to him by 2014 he has had ten months, and maybe more, to prepare his submissions including any cross-referencing of the material he desired. The Appellant has displayed a remarkable ability to prepare and file detailed documents prepared by him, which include large numbers of references to case law, within confined periods of time.
9. It is also apparent from the history recited earlier that the Appellant has devoted a considerable amount of time to preparing documents detailing complaints as to why he cannot prepare his appeal, chiefly that he needs more time, or documents concerned with interlocutory and other challenges to orders made, rather than utilising the time he is permitted by Corrective Services with his computer and material to prepare the appeal so that it would be ready on the day fixed for hearing. What is set out at [50] above is a good example of that.
10. In paragraph 56 of the submissions filed in support of the Summons the Appellant said: Today, just as matters stood in 2008, and just as matters stood in 2012, the applicant requires six months unfettered PC access in order he (sic) rebuild matters of fact and apply the law.
11. Nothing in the extensive material filed by the Appellant to date suggests that giving him further time to assemble his material in the way that he says will be more manageable, provides any support for such an outcome. In our opinion, the Appellant has had ample time with the material that he has had, and for the period of time he has had it, to prepare for the hearing of the appeal. As R A Hulme J pointed out to him on 13 March 2015, when a Notice of Application for Leave to Appeal is filed the applicant is in effect saying: I am ready to have my appeal heard, I am ready to take a date for the hearing.
12. For all of these reasons the adjournment was refused.

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