THE COURT: This is a purported appeal by the applicant, Andrew Riddell, from interlocutory orders made on 8 September 2022 by Beech-Jones CJ at CL in relation to substantive proceedings that the applicant has commenced in this Court. The applicant is self-represented, as he has been in all proceedings that he has pursued in this Court over the past decade. At the conclusion of the oral hearing on 9 November 2022 the Court replicated the Chief Judge's orders. Reasons were reserved and are now published, as follows.
In April 2022, on a date that is variously referred to in the papers as the 6th or the 26th, the applicant filed an application for extension of time within which to seek leave to appeal against his conviction and an application for leave to appeal. The applicant was convicted of conspiring to import into Australia a commercial quantity, namely 136.9 kg, of MDMA in contravention of s 233B(1)(b) of the Customs Act 1901 (Cth) and s 11.5(1) of the Criminal Code (Cth). The applicant was found guilty by a District Court jury on 31 January 2007. On 17 August 2007 he was sentenced to life imprisonment with a non-parole period of 19 years, commencing on 26 April 2003. He was released to parole on 23 April 2022 and was deported to the United Kingdom on 10 May 2022.
The process filed by the applicant in April 2022 is his third application for extension of time and for leave to appeal. The first was filed on 7 November 2012. It was part heard on 23 October 2015 and was then abandoned by the applicant on its second hearing day, 1 April 2016: Riddell v R [2016] NSWCCA 70; Riddell v R (No 2) [2016] NSWCCA 74. The second application was filed on 20 December 2016. Extension of time was refused on 2 May 2017: Riddell v R (No 3) [2017] NSWCCA 92.
In support of the present application for extension of time and for leave to appeal the applicant has filed 4,281 pages of submissions and referenced materials. These incorporate 227 pages of trial documents such as portions of transcript, reasons for judgment and exhibits. There is an affidavit of 493 pages (711 paragraphs) entitled "Ex 1", in which the applicant has chronicled events during his custody - on a day by day basis for some periods. Another 696 pages, marked Ex 8.1-8.15 and Ex 4.1-4.332, comprise copies of the applicant's correspondence with Corrective Services, registrars of this Court and of the High Court, government ministers, the Serious Offenders Review Council and other authorities. There is a "Covering Affidavit" sworn 4 April 2022, annexing other affidavits filed in the High Court, to a total of 45 pages. Following this are 53 pages of a bail application to this Court dated 5 April 2022 and sundry records of interlocutory proceedings in this Court.
The balance of the material filed is 2,540 pages of submissions, including 670 pages of what purports to be a statement of 15 grounds of appeal, with countless sub-grounds. We say "countless" advisedly. The grounds contain express subdivision into diverse heads of complaint and they are also interspersed with argumentative propositions that appear to formulate yet further discrete sub- grounds. The division between the purported statement of grounds and the presentation of argument is indistinct in these 670 pages. The argumentative matter is in many instances not logically connected with any ground or sub-ground, giving rise to the appearance that the arguments actually raise independent points of complaint, whether or not that is understood or intended by the applicant.
An example of this is the section headed "Ground 1: Judicial bias on two bases: (i) actual bias; (ii) the apprehension of bias". Under this there appear 41 points, enumerated (i)-(xli). Point (v) states that "the trial judge directed the jury that facts in issue were decided". That appears to be an independent ground concerning either an explicit misdirection or an unbalanced summing up. Point (vii) asserts that the trial judge encouraged the prosecution to lead "new/fresh evidence and fraud with no notice with the applicant being denied the evidence of rebuttal that was withheld and/or not disclosed". This appears to raise discrete complaints about unfairness of the trial through lack of notice of the case that would be presented and breach of the prosecutorial obligation of disclosure. Those examples could be multiplied many, many times by further description of the 670 pages of grounds.
Much of the written argument throughout the 670 pages is not referable to or connected with the ground under which it appears but may have a bearing on one or more of the other grounds. There is very extensive repetition of argument, much of it dislocated from and not cross-referenced to anything identifiable as a ground to which the argument might rationally be directed.
The balance of the 2,540 pages that are identifiable as current submissions consist of closely typed argument, much of it in the form of tables. For example, there is a 1,237 page table entitled "Annex TTR (Tabulated Transcript References)" in which hundreds of extracts from the transcript are quoted with diverse and detailed arguments in relation to each. Then there are three tables, comprising 196 pages, in which extracts are quoted from opening and closing addresses at the trial and at a previous trial in which the jury were unable to agree. A column of comments contains argument concerning the extracts. The applicant's 2,540 pages of submissions also incorporate multiple tables of analysis of the reasons given by the trial judge for rulings on evidence and procedure, again with columns of criticism and comment, paragraph by paragraph. It is not possible to discern from these tables which part of the 670 pages of grounds is addressed or said to be supported by each of the thousands of comments.
The orders made by Beech-Jones CJ at CL on 8 September 2022, from which the applicant purports to appeal, are as follows:
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 call over on Thursday, 16 February 2023.
4. Stand over the respondent's application to that call over on Thursday, 16 February 2023.
Order (4) refers to an application by the respondent that the Court should hear and decide the applicant's application for extension of time separately and before his application for leave to appeal.
The Chief Judge's reasons for making the above orders are: Riddell v R [2022] NSWCCA 198. His Honour exercised the jurisdiction of the Court of Criminal Appeal pursuant to s 22 of the Criminal Appeal Act 1912 (NSW), the relevant parts of which are in these terms:
22 Powers of a judge sitting alone
(1) The following powers of the court may be exercised by any Judge of the Supreme Court designated by the Chief Justice in the same manner as they may be exercised by the court, and subject to the same provisions -
[…]
(l) any other powers of the court in respect of procedural or interlocutory matters as may be prescribed by the rules of court.
(2) If the Judge refuses an application on the part of the appellant to exercise any such power in the appellant's favour, the appellant is entitled to have the application determined by the court.
The relevant rule of court, for the purposes of the operation of s 22(2)(l) in the present circumstances, is the following provision of the Supreme Court (Criminal Appeal) Rules 2021:
4.1 Court may give directions concerning case management
(1) The Court may give directions by way of case management for the timely and efficient conduct of proceedings before the Court.
(2) The power of the Court under subrule (1) is prescribed for the 1912 Act, section 22(1)(l) as a power of the Court that may be exercised by a designated Judge.
Beech-Jones CJ at CL has been designated by the Chief Justice for the purposes of s 22, as have all judges of the Common Law Division. Accordingly, his Honour's orders take effect as orders of this Court. By a Notice of Appeal filed on 4 October 2022 the applicant identifies the decision appealed as:
Riddell v R [2022] NSWCCA 198. Reinstate Appeal set down for 2 days 23 November 2022.
At a callover on 19 May 2022 the applicant's substantive proceeding was set down for hearing over two days commencing 23 November 2022. The orders of the Chief Judge of 8 September 2022 displaced that fixture by implication and on 14 September 2022 the Registrar expressly vacated the dates. In the current state of the Court's lists there is no prospect of those hearing dates being reinstated. By providing the medium neutral citation of the Chief Judge's reasons as a means of identifying the decision appealed from, the applicant has made it clear that he purports to appeal all of his Honour's interlocutory orders.
In par 5 of written submissions filed on 4 October 2022, the applicant invokes ss 5, 5F, 6, 10, 12, 15, 22, 28 and 29 of the Criminal Appeal Act, none of which provide any right of appeal from a decision of a single judge exercising the jurisdiction of the Court pursuant to s 22. In pars 1 and 2 of the submissions the applicant raises grounds of "unreasonableness, denial of procedural fairness and jurisdictional error". In support he cites authorities concerning judicial review of administrative action. This Court constituted by three judges has no jurisdiction to undertake review upon administrative law grounds of a decision of a single judge of the Supreme Court.
By force of s 22 of the Criminal Appeal Act, the interlocutory decision of the Chief Judge is a decision of the Court of Criminal Appeal. This Court may reconsider, vacate or amend its own interlocutory orders but it would ordinarily only do so only upon demonstration of a material change of circumstances. The applicant has not attempted to demonstrate a change of circumstances. His 75 pages of written submissions include, first, an 18 page document that ranges over the following subjects:
1. Criticism of "the factual and legal errors of this Court in its previous judgments".
2. Complaint that the "applicant is sick to death of repeating the facts. And the court dares to state 'submissions are repetitive'".
3. Assertions that "having regard to that which was before [the Chief Judge] the judgment of 08 September 2022 attempts to promulgate a third but equally novel jurisdiction. 'Summary jurisdiction' of the Court of Criminal Appeal".
4. Lengthy citation of Rules of Court that have no apparent connection with the present issue.
5. Irrelevant history of interlocutory orders of the Registrar made during 2022 and written submissions filed by the Crown in connection therewith.
6. Extensive quotation of the applicant's written submissions filed in opposition to the Crown's application to have the question of extension of time determined first, which is not presently before the Court and has been stood over to 16 February 2023.
7. Submission that the orders of 8 September 2022 that limit the applicant to 200 pages "make it impossible to list that relevant and material to the miscarriage and its melioration"; that this amounts to "confining the applicant by way of some arbitrary quantitative expedient rather than address the qualitative aspects of the evidence stated" and that:
The appeal has been codified to the extent that it can be codified and already redacted. To extract or summarise would be to take the appeal from a state where the court may undertake its statutory/public duty to a state where it cannot.
1. Allegations that written submissions made to the Chief Judge by counsel for the Crown contain "inaccuracies, lies and deceit from a dishonest man who seeks to avoid the facts in issue".
2. Explanation of some of the longer documents within the 4,281 pages, in particular Annex TTR (1,237 pages, said to identify "the prosecutorial misconduct and judicial bias in issue").
Only items (7) and (9) are relevant to the matter presently before the Court. The small part of the written argument that is addressed to those items is unpersuasive. The assertion that the applicant cannot abbreviate and focus 4,281 pages of submissions and referenced material into something under 200 pages is insupportable when one examines the nature and content of the larger volume.
Annexure BJ1 to the applicant's submissions concerning the matter now before the Court contains a 12 page table listing and describing each segment of his 4,281 pages of filed material, endeavouring to provide justification for each. With respect to many of the segments he submits that they are "Within typical range". Having looked at the material sufficiently to identify the deficiencies referred to at [4]-[8] above, we have no doubt that it is possible for the applicant to confine his statement of grounds and arguments to 200 pages and it is essential that he should do so in the interests of orderly, efficient hearing and disposition of his substantive applications.
Annexure BJ2 to the applicant's submissions is 18 pages in length, purporting to demonstrate errors of fact and conclusion in the judgment of the Chief Judge and to establish that those errors "have their genesis in the previous three erroneous [judgments] of the court". Those contentions are irrelevant to the question whether it is practical for the Court, or reasonable in the interests of either party, that the determination of the substantive applications be attempted on the basis of the extraordinarily massive and unsatisfactory grounds and written submissions as currently filed.
Annexure BJ3 to the applicant's submissions is an 8 page table setting out each paragraph of the Chief Judge's judgment in the left-hand column with arguments contesting his Honour's findings and reasoning in the right-hand column. This is irrelevant for present purposes, for the same reason that Annexure BJ2 is irrelevant.
The final component of the applicant's written submissions on the purported appeal from the orders of the Chief Judge is a two part document comprising 7 pages of reply to the Crown's written submissions and 12 pages entitled "Factual matters of determinative significance". There are two principal points in the first 7 pages. First, issue is taken with the Crown's contention that most of the material filed in support of the applicant's latest claim for extension of time and for leave to appeal is a re-presentation of material that was prepared for the previous applications. Secondly, the applicant reiterates and expands his arguments that this Court erred in its decisions on his previous applications. Neither of these points has any relevance to the question whether the applicant's voluminous grounds, submissions and other materials can be condensed.
The second part of the applicant's reply submissions, purporting to identify "Factual matters of determinative significance", lists a large number of allegations that may have a bearing upon final determination of his application for extension of time and/or his application for leave to appeal. Those allegations can play no part in determining whether the grounds, submissions and other materials that he has filed are of unacceptable length and form. This part of the submissions commences with the following:
The Applicant puts this court on notice; This court will fall into error unless it examines exactly what the Applicant filed 6 April 2002 especially Annex NDC and Annex B2B. […] The remaining Annexure[s] are no less important. […]
If this bench has not examined in full that filed or submissions filed since, the court must defer judgment until it has.
Without reading every document, the Court has examined the 4,281 pages sufficiently to understand their nature and to form a view as to whether the determination of Mr Riddell's substantive applications requires that he be permitted to rely upon material in this form and in such volume.
The applicant's oral submissions on the hearing of his purported appeal from the Chief Judge on 9 November 2022 did not advance matters beyond what he had put to the Court in writing. Most of those oral submissions were devoted to his complaints, presently irrelevant, concerning alleged errors of fact in the Court's earlier judgments. No reason has been shown to make orders any different from those made by the Chief Judge on 8 September 2022. Having considered the matter afresh at the conclusion of the hearing we pronounced orders in the same terms as had been made by his Honour.
[2]
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Decision last updated: 25 November 2022