Solicitors:
In person (Applicant)
Office of the Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2004/13814
[2]
EX TEMPORE JUDGMENT
The necessity for this direction hearing arises out of the filing of submissions by an applicant for leave to appeal of grossly excessive length.
[3]
Background
On 31 January 2007 the applicant, Mr Andrew Riddell, was convicted of conspiring to import into Australia a commercial quantity of MDMA contrary to the then s 233B(1)(b) of the Customs Act 1901 (Cth). He was sentenced to life imprisonment with a non-parole period of 19 years. His non-parole period expired this year. Since then, he has been returned to the United Kingdom.
Mr Riddell filed a notice of intention to appeal with respect to his conviction and sentence. He subsequently filed four notices of an application for extension of time, with the latest being on 22 February 2009 which extended the notice of intention to appeal until 22 April 2009. On 7 November 2012, he filed a notice of appeal in respect of his conviction and sentence and a notice seeking in effect an extension of time. By that time his notice of appeal was a little over three years and six months out of time. At that stage he was in custody and was acting for himself.
The progress of that application proved difficult. Its course is outlined in Riddell v R [2016] NSWCCA 70. He supported his application by filing voluminous material. However, he was not able to have the appeal ready for hearing. On 13 March 2015, R A Hulme J listed his appeal for hearing on 23 October 2015 and made various directions limiting the material that he could rely on. By 23 October 2015 Mr Riddell had nevertheless filed material totalling more than 690 pages. On that day he applied to the Court of Criminal Appeal, constituted by Adams and Davies JJ and myself, for an adjournment of his appeal because he said he was not ready and could not respond to what the Crown had filed. That application for an adjournment was refused. However, the matter did not conclude and was stood over until 1 April 2016.
On 1 April 2016, Mr Riddell filed a notice of motion seeking to expand his appeal to appeal from various procedural directions that had been made by R A Hulme J. That application was refused. He then sought to withdraw his application for leave. To the extent that it was necessary for him to get leave to withdraw his application it was granted (see Riddell v R (No 2) [2016] NSWCCA 74). In my judgment, I noted that he had already been able to place 690 pages of written material before the Court and stated (at [13]):
"Of course the position that the Court may take if there is a further attempt to file appeals out of time will be a matter for the relevant Bench that considers it. However, I think it is important to note what I have already just indicated as well as the fact that, despite all these opportunities, the applicant was still protesting that he had not put his appeal in the form that he wished to and that that was what led to him withdrawing his appeal."
Mr Riddell subsequently applied to reinstate his application but leave to do so was refused (see Riddell v R (No 3) [2017] NSWCCA 92). In the course of refusing leave, Johnson J, a highly experienced judge in the criminal law, noted that the procedural history of the matter was "unprecedented" (at [14]).
[4]
Current Application for Leave
On about 26 April 2022, Mr Riddell again applied for leave to appeal against his conviction. He filed an application to extend time in which to do so. Either at that time, or at least since then, he has filed in total filed over 4200 pages of material in support of his application. I have read some of that material and perused the rest. However, I have not read all of it. It includes material that is to an extent repetitive, as well as an annotated transcript of a vast number of telephone calls and the trial transcript. Its tone and content is best reflected by the following paragraph from his written submissions in relation to ground 3:
"Ground 3 demonstrates this grossly misshapen trial. With objective contemporaneous facts non-disclosed and withheld, an opportunistic and deceitful prosecutor lied repeatedly and engaged in destructive re-examination. The judge refusing to turn to the facts in issue argued blindly for the Crown pressing Agent Smith to perjure himself on ultimate issue. The judge trampled procedure and substantive law leading the jury to the fraud and perjury of Smith in want of the objective facts that demonstrated it as such. After such fraud and perjury was set before the jury the judge refused to discharge then refused to recall necessary witnesses and order production of the calls that would apprehend the fraud on the grounds that it would take three weeks. Then rather than attempting to meliorate with a s 136 direction the judge made matters worse by dispensing a direction that made out that the purported 'evidence' (actually fraud) underpinning Smith's 'opinion' (perjury) was in existence but because of its probative value the jury were for that / legal reason unable to see it."
Since the filing of the further application for leave to appeal and the further application for extension of time, the Crown has filed a motion in this court seeking an order that the question of whether Mr Riddell should have an extension of time to bring his application for leave to appeal against conviction and sentence be determined separately from and in advance of the hearing of his application for leave to appeal against the conviction itself. The parties have exchanged submissions on whether that course should be taken. Mr Riddell's written submissions contended, with some force, that the respondent's notice of motion was an exercise in futility because it would be necessary for any court considering an extension of time to also address, at least to some extent, the substance of his grounds of appeal as part of the consideration of whether time should be extended.
[5]
Current Position
With a view to resolving this impasse, I listed the matter today. Prior to today, the parties were advised by email that I had reviewed the material, that I would consider making a direction requiring that Mr Riddell's material be returned and that he be directed to file a consolidated set of submissions by a specified date that did not exceed a specified page limit. Mr Riddell filed a short submission vigorously opposing that course. He stated that, after working fifteen hours a day for "four months straight", he filed his material. He says that having been released on parole and unable to secure pro bono representation, he has been working all hours to "put a roof over his head, put food in his stomach" and surmount the effects of his incarceration in New South Wales. He says that he has no time nor the facilities to read 20,000 pages of material on his appeal and file consolidated submissions by a specified date that do not exceed a specified page limit.
Since the time of the earlier applications by Mr Riddell there has come into force the Supreme Court (Criminal Appeal) Rules 2021 (the "Rules"). They include an express power of case management in r 4.1 enabling the Court to give directions by way of case management for the timely and efficient conduct of proceedings before the Court. The power to make such directions is a power that can be exercised by a single designated judge. All the judges of the Common Law Division, including myself, have been designated as having that power.
It is overwhelmingly necessary in the interests of justice to give a direction of the type foreshadowed. This is not just because the length, tone and content of the submissions appears to make it oppressive for the respondent to respond, although that may be the case. It is also not just because of the workload that would be placed on the individual judges who would have to consider Mr Riddell's material, although that would undoubtedly be heavy. The overwhelming necessity to make such an order follows from the effect on other litigants in the Court of Criminal Appeal, especially other appellants, if the direction is not made. To allow the appeal to proceed in this form will cause such an unnecessary diversion of significant judicial resources that it would significantly impact the ability of the Court of Criminal Appeal to fairly deal with other appeals.
I have already noted Mr Riddell's reasons for opposing this course. Three matters should be noted. First, in being required to file a consolidated set of materials, I understand that that would involve Mr Riddell effectively seeking to summarise and hone what he has already filed so that his submissions are not repetitive like the paragraph identified earlier.
Second, Mr Riddell could not have been under any misapprehension from his previous applications for leave to appeal, especially the numerous directions hearings before R A Hulme J, that the Court would not tolerate the reliance on such a large body of material in relation to such an appeal.
Third, given the observations I have made to date, it really follows that the size, content and tone of the material that Mr Riddell has filed is such that they are an impediment to him having a fair and timely hearing of his application for an extension of time and, if an extension is granted, leave to appeal.
[6]
Orders
There remains to be considered the order that I will make. It follows from what I have said that, at the moment, the respondent's notice of motion seeking a separate hearing on an extension of time will not be listed for hearing. That instead can await the outcome of Mr Riddell's compliance with the order I will make. Given Mr Riddell's submissions and his current position, I think some reasonable latitude in terms of time should be afforded to allow him to file the material. Further, although it involves a significant reduction from the length of the current material, I also propose to allow him to file some material up to a maximum of 200 pages. That vastly exceeds the material that I have seen filed in any appeal considered by the Court of Criminal Appeal in the last four years, save for one matter which concerned a trial that took eleven months and which was on its fourth trial.
Accordingly, pursuant to r 4.1 I make the following directions:
(1) Direct the Registrar to return the submissions and material in support filed by Mr Riddell to him.
(2) Order Mr Riddell to file and serve the submissions and other material that he seeks to rely on, which is not to exceed 200 pages, on or before 31 January 2023.
(3) List the matter before the Registrar for callover on Thursday 16 February 2023.
(4) Stand over the respondent's application to that callover on Thursday 16 February 2023.
[7]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 29 June 2023