205 CLR 337
R v Bell (1987) 8 NSWLR 311
Re JRLEx parte CJL [1986] HCA 39
Judgment (2 paragraphs)
[1]
Judgment
JOHNSON J: By Notice filed on 20 December 2016, the Applicant, Andrew Philip Riddell, seeks an extension of time within which he may file a Notice of Intention to Apply for Leave to Appeal.
The Applicant was found guilty by a jury on 31 January 2007 of conspiring to import into Australia a commercial quantity of MDMA in contravention of s.233B(1)(b) Customs Act 1901 (Cth) and s.11.5(1) Criminal Code Act 1995 (Cth). The indictment charged a conspiracy between 1 May 2002 and 26 April 2003. The pure weight of MDMA involved in the offence was 136.9 kilograms, over 250 times the commercial quantity.
On 17 August 2007, the Applicant was sentenced by his Honour Judge Hosking SC to life imprisonment with a non-parole period of 19 years commencing on 26 April 2003. The Applicant will be eligible for release on parole on 25 April 2022.
The lengthy history of the Applicant's appellate proceedings before this Court has been recited in two judgments of the Court - Riddell v R [2016] NSWCCA 70 and Riddell v R (No. 2) [2016] NSWCCA 74. It is not necessary to repeat the matters contained in those judgments in any detail. They should be read in conjunction with the present judgment. It is sufficient to note that the hearing of the appeal commenced before this Court on 23 October 2015, before being adjourned part heard until 1 April 2016. On 1 April 2016, the Applicant abandoned his appeal against conviction and sentence.
The present application involves an attempt by the Applicant to revive his abandoned appeal arising from his 2007 conviction and sentence. The Applicant did not abandon his appeal by the filing of a notice of abandonment under Rule 27 Criminal Appeal Rules. Rather, he did so in open court, with the Court noting the circumstances in which the abandonment took place: Riddell v R (No. 2) at [6]-[15].
It has been said that the determination of an appeal by the filing of a notice of abandonment under Rule 27 results in a procedural dismissal and not a dismissal on the merits: R v Bell (1987) 8 NSWLR 311 at 314. The same approach should be taken to abandonment of an appeal made in open court where no hearing on the merits has taken place. It is open to the Applicant to seek to revive his appeal, but the Court may exercise procedural controls to determine whether it is just and appropriate that the Applicant be allowed an extension of time to bring his application for leave to appeal at this time.
The Commonwealth Director of Public Prosecutions has appeared on the leave application and opposes a grant of leave to appeal and any associated extension of time.
At the outset, it should be observed that a document entitled "Grounds of Appeal" filed by the Applicant on 20 December 2016 appears to contain the same discursive assertions which had been made by the Applicant at the time when his appeal came before this Court for hearing on 23 October 2015, and was abandoned by him on 1 April 2016.
Grounds of appeal against conviction must be sufficiently clear to permit classification of each ground for the purpose of s.5(1) Criminal Appeal Act 1912 as a "ground which involves a question of law alone or otherwise". For the purpose of civil appeals, it has been said that grounds of appeal should involve a statement, in short point form, of the essential issues to be argued on appeal. The reasoning and argument should not be stated, but the grounds must be identified with sufficient clarity and precision to fulfil their purpose, that is to alert the opponent so that he or she can prepare their case and to alert the court of the matters in contest and to facilitate the joining of issue: Algoni Pty Limited v Secretary, Department of Industrial Relations (1985) 3 NSWLR 515 at 525-526. The Applicant's grounds of appeal offend all these requirements.
The Applicant's first and second grounds of appeal are set out hereunder to illustrate this point:
"Ground 1: Judicial bias on two bases: actual bias / the apprehension of bias. The trial judge utilising extraneous information gained from the first leg of the proceeding interfered in the second leg of the proceeding to such an extent, that the culmination, variety, number and importance of such intrusions constituted such a departure from the due and orderly process of a fair trial so as to amount to a miscarriage of justice. Such extraneous information was utilised to interfere with the conduct of retrial with the judge displaying his personal interest in forcing a conviction by way of his conduct and his association with prosecutors. 'But for' the conduct of the trial judge (who joined with prosecutors in circumventing the bad crown case as apprehended by the first jury) a conviction could not have eventuated. Causation is made out. Each judicial transgression may be traced back to the events of the first trial. The level of bias eroded substantive rights. The 'judicial discretion' perverted Evidence Act 1995 to an instrument of oppression. Constitution s 61 merged with s 71 abrogating Constitution s 51 and s 80.
Ground 2: Prosecutorial misconduct. Based upon the events of Committal and first trial where the crown case was comprehensively crushed, and due to deliberate non disclosure the prosecutor failed to present his case fully and fairly according to adversarial / accusatorial rules, changed his case mid trial, patched up his bad case, adduced fraud with no notice (with no evidence of rebuttal made available), coerced witnesses to change their given evidence, and obstructed the due administration of justice. This non disclosure caused Committal, trials and sentencing to miscarry."
The Applicant continues to maintain that he is not in a position to proceed to hearing of his appeal until February 2018. In the voluminous material filed by him in advance of the hearing of this application, the Applicant states that he does not expect that the matter will be ready for hearing until early 2018.
The Applicant maintains that he has not been able to complete what he regards as necessary preparations for the purpose of the hearing of his appeal. However, it must be observed that the Applicant has had sufficient time and facilities to generate, amongst other documents, a closely typed 54-page document entitled "Submissions in Support of Leave to Appeal and Immediate Refiling" filed on 20 December 2016 together with an affidavit dated 3 December 2016 which comprises some 83 pages which are, once again, closely typed.
In reply to the Crown submissions filed on 13 April 2017 concerning the present application (14 pages in length), the Applicant relies upon further submissions supplied on 1 May 2017 which are 139 pages in length. Indeed, the Applicant sought a further adjournment today to prepare a further response to the Crown submissions.
In my experience, the procedural history of this matter in this Court is unprecedented. Before the hearing of the Applicant's appeal came before the Court on 23 October 2015, there had been no fewer than 23 directions hearings and call-overs. Despite this background (and the lengthy period of time which passed before his original appeal was filed on 7 November 2012 and since that date) the Applicant stated that he was not in a position to continue with the hearing of his appeal on the adjourned date on 1 April 2016. He proceeded to abandon his appeal in open court.
Since April 2016, it would appear that the Applicant has utilised the available time to prepare lengthy, repetitive and obtuse documents which, according to the Applicant, have still not placed him in the position for his appeal to be ready to proceed.
It is, of course, a matter for the Applicant to use the time and facilities available to him in such manner as he sees fit. However, against the background which I have set out, it is the function of the Court to determine whether its processes ought be further utilised at this time by the Applicant, given his approach to the matter over the decade which has passed since a jury found him guilty of this offence.
In exercising any relevant discretion, the Court must keep in mind the gravity of the offence of which the Applicant was found guilty and the substantial penalty which was imposed upon him.
However, the situation has not advanced materially since 1 April 2016 from the point of view of the Applicant being in a position to proceed to a hearing of his appeal upon grounds which can be comprehended and with orderly and coherent submissions made in support of them.
In the past, the Applicant has been either unable or unwilling to comply with directions of the Court. On 13 March 2015, RA Hulme J directed that the Applicant should provide a summary not exceeding 20 pages of his submissions in support of the appeal. RA Hulme J also directed on 13 March 2015 that, if the matter could not be heard on 23 October 2015 because of the failure of the Applicant to prepare the matter for hearing, it would be a matter for the Court to consider summary dismissal on that occasion on the basis of a failure to prosecute the appeal diligently.
The effect of the orders made by this Court on 23 October 2015 was that the Applicant was able to place before the Court written submissions totalling 690 pages. Even then, on 1 April 2016, the Applicant told the Court that he required yet more time to prepare for the hearing of his appeal and to file yet more documentation.
Since then, the matter has proceeded (or should I say, not proceeded) in the manner outlined earlier in this judgment.
The Applicant has demonstrated a capacity to produce multiple, lengthy and complex documents despite his claim to have limited facilities. The approach of the Applicant appears close to (if not at) a position where there is a constructive failure to take reasonable steps to comply with orders of the Court for his appeal to be ready to proceed.
For these reasons, I am satisfied that the appropriate order is to refuse the Applicant an extension of time to file his Notice of Application for Leave to Appeal Against Conviction and Sentence.
BEECH-JONES J: I agree with Johnson J and the orders his Honour proposes. It is necessary to address a further matter. At the outset of the hearing of this application, Mr Riddell applied to me to disqualify myself by reason of my participation in previous decisions of this Court concerning his earlier attempts to appeal. I refused the application and indicated I would provide my reason for the refusal with the substantive judgment. This constitutes my reasons.
In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [8], the High Court outlined the two step approach to determining contentions that a judicial officer displays apprehended bias, namely:
"The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." (emphasis added)
The reference in this passage to an apprehension of what might lead a judge or juror to decide a case "other than on its legal and factual merits" was expanded upon by Mason J in Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 352, namely:
"It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party".
My participation in Mr Riddell's earlier attempts to appeal is as follows. On 23 October 2015, Mr Riddell's application for leave to appeal his sentence and appeal from his conviction, was listed for hearing in this Court. On that day he applied for an adjournment. The application was refused and the appeal proceeded. Reasons for the refusal of the adjournment which I joined in were published on 2 May 2016 (Riddell v R [2016] NSWCCA 70).
In fact, the appeal adjourned part heard to 1 April 2016. On that day, the Court that I formed part of made two relevant decisions. The first was to refuse leave to Mr Riddell to file a motion seeking to challenge interlocutory orders made by RA Hulme J concerning the progress of the appeal. The second was an order in Mr Riddell's favour granting him leave, if leave was necessary, to abandon his appeal (Riddell v R (No 2) [2016] NSWSC 74; "Riddell (No 2)"). In Riddell (No 2), I observed that Mr Riddell had to that time, "The most generous opportunity to prepare for his appeal" (at [12]).
On this application, Mr Riddell objected to my participation in this matter because he submitted that he wished to challenge these earlier decisions. However, that contention was entirely misconceived. The principle of finality does not allow Mr Riddell to re-agitate or re-open the matters decided by those decisions. Instead, the subject of this application was simply whether Mr Riddell has made out a case for an extension of time to file his notice of intention to appeal. In turn, this depended upon the adequacy of his preparation for the appeal and in particular his state of preparation as at today. An assessment of that is not affected by my earlier participation in the previous decisions concerning his earlier attempts to appeal. Otherwise, nothing else was put forward that could satisfy either of the steps outlined in Ebner. For those reasons I refused his application.
FAGAN J: I agree with Johnson J.
JOHNSON J: The order of the Court will be the order which I announced at the conclusion of my judgment.
[2]
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Decision last updated: 11 May 2017