Riddell v R

Power

1. Section 22(1) of the Criminal Appeal Act 1912 (NSW) provides, inter alia, that the following powers of the Court may be exercised by any judge of the Supreme Court designated by the Chief Justice: "(i) the power to dispose of an appeal for failure to prosecute the appeal diligently, … (l) any other powers of the court in respect of procedural or interlocutory matters as may be prescribed by the rules of court."
2. Rule 4.1 of the Supreme Court (Criminal Appeal) Rules 2021 states: "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 [Criminal Appeal] Act, section 22(1)(l) as a power of the Court that may be exercised by a designated Judge."
3. Since the Crown's application sought to invoke the powers of the Court under s 22(1)(i) and (l) and since I have been designated for the purposes of that section by the Chief Justice, I was empowered to hear and determine the application.

Background

1. By way of background it can be noted that this matter has a significant history which has resulted in the following decisions being published: 1. Riddell v R [2016] NSWCCA 70; 2. Riddell v R (No. 2) [2016] NSWCCA 74; 3. Riddell v R (No. 3) [2017] NSWCCA 92; 4. Riddell v The Queen [2022] HCASL 81; 5. Riddell v R [2022] NSWCCA 198; 6. Riddell v R [2022] NSWSC 1581 (although the medium neutral citation suggests that this is a decision of the Supreme Court at first instance, the judgment is actually a judgment of the Court of Criminal Appeal).
2. I shall not set out in this judgment a comprehensive repetition of all the procedural history described in those judgments, but this judgment should be read in conjunction with those judgments. For the purposes of considering the Crown's application it is sufficient to note by way of undisputed background the following: 1. Mr Riddell was found guilty on 31 January 2007 of conspiring to import 136.9 kg of MDMA in contravention of s 23B(1)(b) of the Customs Act 1901 (Cth) and s 11.5(1) of the Criminal Code (Cth) and 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. 2. On 6 April 2022, Mr Riddell filed his latest application for leave to appeal against conviction and sentence out of time. This was the third such application made by Mr Riddell. 3. Mr Riddell's application was accompanied by a vast amount of documentation. Some of it was delivered electronically and comprised the following eight "volumes": 1. Volume 1 containing the notice of application, grounds and submissions relating to those grounds, a covering affidavit, and various other documents of over 800 pages; 2. Volume 2 containing annexures to the covering affidavit of over 2,200 pages; 3. Volume 3 containing further annexures to the covering affidavit of over 1,200 pages; 4. Volume 4 containing documents related to a bail application and an habeas corpus application (since Mr Riddell was still in custody when the application was filed) of 35 pages; 5. Volume 5 containing the Appeal Book from the first application for leave to appeal out of time of more than 12,800 pages, (but there were said to be about 6,000 relevant pages missing); 6. Volumes 6 and 7 containing audio recordings and transcripts of over 600 telephone calls; 7. Volume 8 containing letters to the Registrar outlining what was contained on the USB by which the electronic documents were provided. 1. The documents in volumes 1, 2 and 3, totalling 4,281 pages, were also filed in hardcopy. 2. The covering page of part 1 of volume 1 identified, inter alia, 15 grounds of appeal upon which Mr Riddell sought to rely if leave to appeal out of time were granted, namely: "Ground 1: Judicial bias on two bases: (i) actual bias; (ii) the apprehension of bias. Ground 2: Prosecutorial misconduct. Ground 3: Evidence led from outside the indictment period. Ground 4: Non-disclosure, withholding and the failure to produce. Ground 5: The adduction of false representations, case notes and notes used as proofs. Ground 6: purported voice identification evidence; the reversal of the onus of proof / Browne v Dunn directions. Ground 7: the testimony of Small. Ground 8: collusive call from judge to prosecutor that served to tamper with the constitution of s 80 Jury. Ground 9: The admission of an edited version of a disputed newspaper article. Ground 10: Refusal to admit evidence / representations made at Committal. Ground 11: Redacted immigration records adduced over objection. Ground 12: Admitting into evidence misleading summaries of 'the crown case' via s 29(4). Ground 13: The irregular summing up. Ground 14: Fundamental errors in the exercise of the sentencing discretion. Ground 15: The miscarriage of justice ground."
3. On 8 September 2022, Beech-Jones CJ at CL, exercising the powers of the Court of Criminal Appeal as a single judge under s 22(1) of the Criminal Appeal Act, made directions by way of case management for the timely and efficient conduct of the proceedings 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."
4. The Chief Judge provided reasons for judgment: Riddell v R [2022] NSWCCA 198. Order 4 related to an application by the Crown that the Court should hear and decide Mr Riddell's application for an extension of time separately and before his application for leave to appeal.
5. Mr Riddell was not content with these directions and purported to appeal to the Court of Criminal Appeal. This purported appeal was heard on 9 November 2022 by Button and Fagan JJ and R A Hulme AJ. On that occasion and since there is no right of appeal to the Court of Criminal Appeal from a decision of a single Judge exercising the power of the Court, their Honours treated the proceedings before them as, in effect, an application to reconsider, vacate or amend the Court's own interlocutory orders. For the reasons set out in Riddell v R [2022] NSWSC 1581, Button and Fagan JJ and R A Hulme AJ confirmed the orders made by Beech-Jones CJ at CL by making the same orders.
6. Mr Riddell did not comply with order (2) by filing and serving the submissions and other material that he seeks to rely on, not exceeding 200 pages, on or before 31 January 2023. Nor has he subsequently complied.
7. In these circumstances, the Crown made the application for dismissal of the proceedings on the basis that Mr Riddell had failed to prosecute the application for leave to appeal out of time diligently because he had not complied with order (2). At the outset of the hearing, counsel for the Crown very properly indicated that the Crown's preference was, however, "to get the matter back on track in as much as Mr Riddell should if he can be given an opportunity to articulate his appeal".
8. Mr Riddell's principal submission relevant to the dismissal application was in essence very simple. It amounted to the assertion that it was absolutely impossible for him to comply with the direction in order (2) and this was the reason why he had not complied and would not comply. This impossibility was explained to arise because the issues he sought to raise were very complex and required an understanding of a very large number of documents some of which were included in the 4,281 pages provided in hardcopy, others of which were only included in the material provided electronically and others of which were yet to be provided. Mr Riddell maintained he must refer to these documents in detail in providing submissions in support of his case.
9. As a result of Mr Riddell's ability during the hearing to describe the substance of some of his grounds of appeal in a few sentences, it appeared to me that Mr Riddell would be capable of summarising his proposed grounds quite succinctly. At one point, Mr Riddell suggested he might be able to file and serve a document of 500 pages if he spent six to eight months working full time on it.
10. Furthermore, during the hearing, it was clarified that: 1. what was intended to be included in the 200 pages was a summary of Mr Riddell's submissions in support of his 15 grounds of appeal and identification of, and if necessary a summary of, the material relied upon in support of those grounds; 2. Mr Riddell did not have to include, in those 200 pages, material such as the transcripts, exhibits and judgments from the two trials in the District Court or the other documentary evidence on which he proposed to rely that would be included in any Application Book or Appeal Book, if leave to appeal out of time were granted.
11. Towards the end of the hearing, Mr Riddell did appear to be prepared to attempt to summarise his submissions and the material to be relied upon in a document not exceeding 200 pages, although he thought that might be very difficult, if not impossible.
12. Mr Riddell did not comply with order (2) made by Beech-Jones CJ at CL and confirmed by Button and Fagan JJ and R A Hulme AJ within the time specified in that order. Nor has he subsequently complied. Furthermore, he has not expressed any unqualified willingness to comply with that order by some future date.
13. The power to give directions, such as order (2) made in this case under r 4.1 of the Supreme Court (Criminal Appeal) Rules, necessarily carries with it a power to refuse to countenance non-compliance: State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1993) 29 NSWLR 487 (SPCC) at 492-3 (Gleeson CJ, Sheller JA and Badgery-Parker J agreeing). It makes no difference to the existence of the power, as distinct from the discretionary considerations relevant to its exercise, that the proceedings are criminal in nature: SPCC at 492. Under s 22(1)(i) of the Criminal Appeal Act, I have power to dispose of an appeal where there is a failure to prosecute the appeal diligently. In my view, the only appropriate way in which to refuse to countenance non-compliance in this case and to dispose of the appeal, is for the application for leave to appeal out of time to be dismissed.
14. For the reasons set out above, I am satisfied that Mr Riddell has failed to prosecute his application for leave to appeal out of time diligently and that his application should be dismissed.
15. I have also noted, however, Mr Riddell's tentative view that he may be able to summarise his grounds of appeal more succinctly so as to be able to comply with a 200 page limit if he is given sufficient time. He indicated he might need six to eight months to do so. Mr Riddell should be given the opportunity to attempt to comply with a 200 page limit for his submissions within a reasonable time.
16. Thus, I am satisfied that it is appropriate to make an order dismissing the whole of the application for leave to appeal out of time but to suspend the operation of that order for approximately six months, and to order that, if Mr Riddell does file and serve a document summarising his submissions and identifying the material relied on to support those submissions of no more than 200 pages within about six months, then the order dismissing the application for leave to appeal out of time will be rescinded. It would also be helpful for an order to be made listing the matter before the Registrar after about six months to confirm whether or not Mr Riddell has filed and served submissions not exceeding 200 pages and thus whether or not the application for leave to appeal out of time will stand dismissed.
17. I note that the Crown did not oppose this approach to dealing with its application for dismissal of the proceedings.
18. For all these reasons, the orders of the Court are: 1. Subject to order (2), Mr Riddell's application for leave to appeal against conviction and sentence out of time dated 5 April 2022 is dismissed in whole, but this order is not to take effect until 9 February 2024. 2. If Mr Riddell files and serves submissions on his 15 grounds of appeal (including a summary identifying the material relied upon in support of each of those grounds) of not more than 200 pages on or before 7 February 2024, the preceding order (1) is discharged. 3. The proceedings are listed for directions before the Registrar on 8 February 2024. 4. The parties have liberty to apply on 3 days' notice.

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: 30 June 2023