Riddell v R

Background

1. What follows is a summary of some of the background to the current application before the Court. It is not intended in this judgment comprehensively to rehearse the background to the current application, which is more fully set out in the various judgments referred to below, with which these reasons should be read.
2. On 31 January 2007 Mr Riddell was found guilty of conspiring between 1 May 2002 and 26 April 2003 to import into Australia a commercial quantity of MDMA, being 136.9 kilograms, in contravention of s 233B(1)(b) of the Customs Act 1901 (Cth) and s 11.5(1) Criminal Code 1995 (Cth). He was sentenced on 17 August 2007 to life imprisonment with a non-parole period of 19 years, commencing on 26 April 2003. He was released on parole on 23 April 2022 and was deported to the United Kingdom on 10 May 2022.
3. In November 2012, Mr Riddell filed a notice of appeal (some three years and six months out of time) against both conviction and sentence and a "[n]otice of application for extension of period within which notice of intention to appeal to apply for leave has effect." The appeal was heard on 23 October 2015 and 1 April 2016.
4. At the hearing on 23 October 2015 the Mr Riddell sought an adjournment of the appeal. After hearing oral argument, the presiding judge Adams J indicated the Court had refused the application for adjournment and would provide reasons in due course and the Court continued to hear arguments on the appeal. The reasons for refusing an adjournment were published on 2 May 2016: Riddell v R [2016] NSWCCA 70. In those reasons the Court recorded that Mr Riddell submitted that, because of difficulties arising from various materials being unavailable, he required a further six months of "unfettered PC access so that he could rebuild matters of fact and apply the law": at [33]. He also sought time to obtain affidavits from his legal representatives at trial about claimed prejudicial statements made by the trial judge, a communication between the trial judge and the Crown about a sick juror and the jury notes not being transcribed: at [34]-[42]. The Court noted the procedural history of the matter, including that on 13 March 2015 R A Hulme J: 1. listed the appeal for hearing on 23 October 2015; 2. ordered that before 28 August 2015 Mr Riddell file a "document not exceeding 20 pages…in which submissions in support of the grounds of appeal are set out in a succinct summary"; and 3. ordered that "[i]f 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".
5. The Court observed that, contrary to the orders of R A Hulme J on 13 March 2015, Mr Riddell did not file a document not exceeding 20 typed pages. Instead, he filed a summons seeking leave to appeal from those orders: at [45], and then, by notice of motion on 17 September 2015 sought to quash those orders (along with a subsequent order of the Registrar) and sought to have the hearing of his appeal adjourned: at [49].
6. The Court also considered the matters upon which Mr Riddell was seeking to obtain affidavit evidence from his legal representatives at trial. The Court found that these were either inconsequential and could not give rise to concern about bias: at [57], or were reflected in the transcript which "speaks for itself and no affidavit from Mr Waterstreet could take the matter any further": at [65], [71], [74].
7. As regards Mr Riddell's claimed lack of readiness, the Court observed that Mr Riddell had stated in his submissions that he had had to wait until 2014 "for 95% [of the] trial materials to be delivered to him" and that there had been the equivalent of one folder of further material delivered to Mr Riddell on 8 July 2015: [82]. The Court held, at [83], that: "…no appellant, whether unrepresented or not, can be given unlimited time to make the necessary preparation."
8. Further, at [86], the Court held: "…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."
9. At the resumed hearing on 1 April 2016 Mr Riddell abandoned his appeal against both conviction and sentence: Riddell v R (No 2) [2016] NSWCCA 74. In allowing Mr Riddell's application to abandon his appeal Adams J (with whom Davies and Beech-Jones JJ agreed) found that it was "very difficult to accept" Mr Riddell's submission that he was "not ready": Riddell v R (No 2) [2016] NSWCCA 74 at [9]. In additional reasons, Beech-Jones J (with whom Adams J agreed) held: "12 I do not accept that this applicant has had anything other than the most generous opportunity to prepare for his appeal. He has had a number of years to do so. It is clear from the materials he has filed at various points that he has had very fulsome access to the material concerning his trial. He has with the leave of this Court, and contrary to the previous view taken by RA Hulme J, already been able to place some 690 pages of written submission before the Court. He has demonstrated an ability to produce written material of large length on short notice. In short, he has had an opportunity to prepare for his appeal that is, as I have said, generous. 13 …despite all of 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."
10. An application for an extension of time for filing a notice of intention to apply for leave to appeal was filed on 20 December 2016, but was refused by this Court (Johnson J, Beech-Jones and Fagan JJ agreeing) on 2 May 2017: Riddell v R (No 3) [2017] NSWCCA 92. Johnson J noted at [11]: "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."
11. In refusing that extension, Johnson J observed that there had been "no fewer than 23 direction hearings and call overs" prior to the hearing on 23 October 2015 and that, despite that background, and Mr Riddell filing written submissions totalling 690 pages, Mr Riddell had stated that he was not in a position to continue with the hearing of his appeal on 1 April 2016: at [14], [20]. By the time of the hearing on 2 May 2017, Johnson J found at [18] that: "…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."
12. His Honour held at [22] that: "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."
13. On 18 January 2022 Mr Riddell applied to the High Court for an extension of time in which to file an application for special leave to appeal from that decision. That application was rejected by Gageler J (as the Chief Justice then was) and Gleeson J: Riddell v The Queen [2022] HCASL 81 at [1], for the following reasons: "The application raises no apparent basis upon which to consider that the Court of Criminal Appeal's decision is attended by doubt such as to warrant a grant of special leave to appeal. Accordingly, it would be futile to grant the extension of time that is sought."
14. In April 2022, Mr Riddell again applied for an extension of time in which to file a notice of appeal against his conviction and for an extension of time in which to seek leave to appeal against his conviction (to the extent required) and sentence. In support of that application, Mr Riddell filed over 4,200 pages including very lengthy, closely typed submissions and multiple annexures including detailed tables containing analysis of documentary materials. The matter came before this Court, constituted under s 22 of the Criminal Appeal Act by Beech-Jones CJ at CL on 8 September 2022: Riddell v R [2022] NSWCCA 198 at [7].
15. Before the hearing on 8 September 2022, Beech-Jones CJ at CL had foreshadowed making an order directing that Mr Riddell's material be returned to him and that he be directed to file a consolidated set of submissions that did not exceed a specified page limit by a specified date. In response, Mr Riddell submitted that he did not have the time or 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": Riddell v R [2022] NSWCCA 198 at [9]. Following an oral hearing Beech-Jones CJ at CL held: "11 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. 12 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. 13 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. 14 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."
16. His Honour determined that "some reasonable latitude in terms of time should be afforded" to Mr Riddell to allow him to file material in compliance with his Honour's orders. His Honour made orders under r 4.1 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW): Riddell v R [2022] NSWCCA 198 at [16]. Relevantly, by orders (1) and (2) his Honour directed: "(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."
17. Mr Riddell brought a purported appeal against those orders and on 9 November 2022 this Court heard Mr Riddell's application and, having considered the matter afresh, pronounced orders replicating those made by Beech-Jones CJ at CL: Riddell v R [2022] NSWSC 1581 at [24] (Button, Fagan JJ and R A Hulme AJ). The Court described the material upon which Mr Riddell sought to rely as follows: "4 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. 5 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. … 7 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. 8 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."
18. The Court observed that no appeal lies as of right against a decision of a single judge exercising the jurisdiction of the Court under s 22 of the Criminal Appeal Act, the Court has no jurisdiction to undertake review upon administrative law grounds of a decision of a single judge of the Supreme Court, and that Mr Riddell had not attempted to demonstrate a material change of circumstances such as may justify a court reconsidering, vacating or amending its own interlocutory orders: at [15]-[16]. At [17], the Court found that: "…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."
19. The Court held that: "23 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. 24 …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."
20. Mr Riddell did not, and has not, complied with order (2) of the orders of this Court made on 8 September 2022 and reiterated on 9 November 2022.

The Orders of Wright J on 30 June 2023

1. On 17 April 2023 the Crown sought summary dismissal of the application for leave to appeal against his conviction out of time on the basis he had failed to prosecute the application diligently in that he had not complied with the direction of the Court. As set out above, this was treated as an application which also encompassed Mr Riddell's application for an extension of time for applying for leave to appeal as regards his sentence.
2. The non-compliance relied upon was with Mr Riddell's failure to comply with the direction that he "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", being order (2) as made by Beech-Jones CJ at CL and reiterated by this Court on 9 November 2022.
3. That application was heard by Wright J, exercising the jurisdiction of this Court under s 22 of the Criminal Appeal Act, on 26 June 2023: Riddell v R [2023] NSWCCA 167 at [5]. Section 22 of the Criminal Appeal Act relevantly provides: (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 - … (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.
4. As to the position of Mr Riddell, Wright J said: "13 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. 14 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. 15 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. 16 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."

This Court's jurisdiction to make the orders sought by Mr Riddell

1. As is clear from our summary of the background to the current application, Mr Riddell asks this Court to vacate or vary its own orders. However, as reiterated by this Court in Riddell v R [2022] NSWSC 1581, this Court has neither appellate jurisdiction nor jurisdiction under s 69 of the Supreme Court Act 1970 (NSW) in respect of its own earlier orders or the reasons for making those orders: at [15].
2. As to the latter, in making the orders Wright J was clearly exercising a judicial rather than administrative function: cf Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [76]-[77] (Basten JA); see also Singh v State of NSW [2021] NSWCA 260 at [7] (Leeming JA). In Penson v Titan National Pty Ltd [2015] NSWCA 404 this Court observed that the orders of judges of the Supreme Court were not amenable to prerogative writs and are not amenable to review under s 69 of the Supreme Court Act: at [8] (Meagher, Gleeson and Simpson JJA). That is consistent with the historical position, as identified by the High Court in Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 at [98]: "The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court." (Emphasis added.)
3. Similarly, as held by Dawson J in Re Jarman: Ex parte Cook (No 1) (1997) 188 CLR 595 at 610; [1997] HCA 13: "…the jurisdiction of a superior court of record exercised by a single judge is still the jurisdiction of the court; there are not two courts, one comprising the single judge and one comprising all the judges."
4. The principles set out above would also apply to the Court of Criminal Appeal which is a superior court of record: Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 at [13] (Gummow A-CJ, Hayne, Heydon, Crennan and Kiefel JJ); see also R v Jones (No 2) (2010) 79 NSWLR 143; [2010] NSWCCA 195 at [25] (Rothman J, McClellan CJ at CL agreeing).
5. Nor can the application be made under s 22(2) of the Criminal Appeal Act. That provides an entitlement to have an application determined by the Court only where a judge exercising the Court's power under s 22 has refused "an application on the part of the appellant to exercise [a power enumerated in s 22(1)] in the appellant's favour". That provision does not avail Mr Riddell where, as here, the application determined by Wright J was brought by the Crown, not by Mr Riddell.

Should the orders of Wright J be reconsidered, vacated or amended in the interests of justice?

1. We propose to deal in this judgment with the principal matters relied upon by Mr Riddell in support of the current application. It is simply not practicable to detail every one of the plethora of matters which is raised, whether directly or indirectly, in his written and oral submissions and in the material he relies upon in support. However, we can confirm that the Court has carefully read all of Mr Riddell's submissions in support of this application and has taken into account the other documents which Mr Riddell referred the Court to in his oral submissions.

Did Wright J have power to make the orders of 30 June 2023

1. If, as Mr Riddell contends, the orders of Wright J were beyond jurisdiction, that would obviously bear upon whether they should be reconsidered, vacated or amended. It is thus necessary to address that question at the outset. It is apparent that Mr Riddell makes, in essence two complaints in this regard. He contends that this Court does not have power: 1. to place a limit upon the length of written submissions; or 2. to make orders disposing of an application for an extension of time to file a notice of appeal or to file an application for leave to appeal without giving substantive consideration to the merits of the proposed grounds of appeal.
2. As set out above, s 22(1)(i) of the Criminal Appeal Act expressly confers upon a single judge of the Court the power to dispose of an appeal for failure to prosecute the appeal diligently. Subsection 22(1)(l) confers upon a single judge of the Court "any other powers of the court in respect of procedural or interlocutory matters as may be prescribed by the rules of Court." Rule 4.1 of the Supreme Court (Criminal Appeal) Rules provides: 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.
3. It is thus clear that there was a proper statutory basis for the orders made by Wright J.
4. Moreover, it is apparent that this Court also has the inherent power to dismiss an appeal for want of prosecution: see eg R v Frier (Court of Criminal Appeal (NSW), 26 February 1997, unrep); Gore v R (Cth) [2003] NSWCCA 365.
5. Mr Riddell submits that the Court does not have power to make orders such as those made by Wright J as, he submits, once an appeal is filed in the Court "it's the Court's duty to examine it for merit, extension and leave, in that order as per Kentwell [Kentwell v R (2014) 252 CLR 601; [2014] HCA 37], without examination there is no opinion to be had". This submission echoes Mr Riddell's written submission that "[t]he law requires NSWCCA examine the 650 page outline of submissions filed", and that the "NSWCCA was precluded from dismissing appeal citing non-diligent prosecution. The Act was promulgated to safeguard substance of right not procedure or form". He submits that the Court cannot make any decision to limit the length of submissions from 650 to 200 pages without firstly apprising itself by reference to the totality of the material that he relies upon.

Jurisdictional error, unreasonableness and denial of procedural fairness

1. Mr Riddell submits that the decisions of this Court in Riddell v R [2022] NSWCCA 198, Riddell v R [2022] NSWSC 1581 and Riddell v R [2023] NSWCCA 167 are each tainted by jurisdictional error, unreasonableness and a denial of procedural fairness. To the extent that these contentions go beyond those considered above, we would reject them. Mr Riddell has been given a fair opportunity to be heard on each occasion and has availed himself of that opportunity. Further, the orders made on each occasion are, in our judgment, well within the ambit of orders that the Court acting reasonably could make.

Impossibility of compliance

1. Mr Riddell submits that it is impossible for him to cut his submissions from 650 pages to 200 pages, and that doing so will render the summaries he has prepared "inutile". He contends that the complicated, serious and controversial matters that he relies upon both on his application for extensions of time and that he proposes to rely upon on appeal "cannot be proved by summary". He says that he cannot demonstrate fraud by one example or refer to one missed call when there are 119 others. He relies upon there being 18,000 to 20,000 pages of transcript and exhibits. He also submits that, to the extent that his grounds of appeal rely upon calls that he claims were not disclosed to him, the Court needs to consider the calls and "[n]o summary can deal with that". In short, he submits, "this is a colossal matter".
2. Mr Riddell's contentions must be rejected. He has not demonstrated any satisfactory reason why he could not have filed and served submissions and a summary identifying the material relied upon in support of his grounds of appeal within 200 pages in the period of slightly over 6 months provided for by the orders of Wright J on 30 June 2023, or indeed before the hearing before this Court on 1 March 2024. In this regard, it is of some significance that the orders of Wright J did not purport to limit the material that Mr Riddell could take the Court to at the hearing of his application for leave to appeal. To the extent that Mr Riddell wished, on an appeal, to rely upon the content of what he claims were "non-disclosed calls" he could do so by cross-referencing his submissions to the material upon which he relies in support of those submissions. That was also made clear to Mr Riddell during the hearing of his purported appeal against the orders of Beech-Jones CJ at CL and during the hearing before Wright J the transcript of which Mr Riddell has extracted in his submissions in chief on the current application: "I was trying to indicate there that you do not have to repeat each item of evidence and give a running commentary on it, but you would need to identify in summary form the way have just in submissions the nature of the material, how you say it supports the ground and identify what the material is without repeating it. …. …[w]hat I'm saying is this is a summary of your submissions in support of your grounds which identifies the material you rely on. It does not have to set out all the material. … the preparation of an appeal book which to the extent that leave is granted in relation to the grounds would include the material you rely on to establish your case."

Lack of utility

1. Mr Riddell also submits that the orders of Wright J lack utility. In particular he contends that on appeal the Court must "examine 20,000 pages of relevant transcript and exhibits together with the evidence and call tables filed by the Applicant (read seriatim as transcript is examined)". Thus, he contends, "it matters not whether grounds/submissions are 200 or 650 pages". He contends, further, that after all that he has endured, "an extra 400 pages to an appeal is hardly vexing".
2. Mr Riddell's submission in this regard demonstrates his unwillingness to accept this Court's orders. He refuses to accept that it is for this Court, and not him, to determine what procedural orders should be made to ensure the efficient and effective conduct of proceedings before it. Mr Riddell's view that the orders lack utility does not provide any basis upon which he should be excused from compliance.

Proportionality

1. Mr Riddell complains that it is disproportionate for this Court to make orders limiting the length of his submissions. He says that if there is a difficulty with the time required to consider lengthy submissions, then the Court can appoint someone else to do so under s 12(1)(d) of the Criminal Appeal Act. Both of these contentions should be rejected. There is nothing disproportionate in the orders of Wright J. Notwithstanding the complexity of Mr Riddell's grounds of appeal, and having considered exhibit BJ1 before Wright J, we are satisfied that Mr Riddell's grounds of appeal can be reflected in submissions and a summary well within the 200 pages allowed by the orders of Wright J. Further, it is readily apparent that consideration of submissions such as those which Mr Riddell seeks to rely upon cannot be the subject to a referral to a commissioner appointed by the Court under s 12(1)(d) of the Criminal Appeal Act.

The prospects of success of Mr Riddell's proposed grounds of appeal

1. As set out at [53]-[55] above, the merits of the grounds of appeal are one of the factors relevant to the interests of justice in this case, however this Court's review of the merits should be with a view to ensuring on a "reasonably impressionistic level" that the proposed grounds of appeal are arguable, but this application should not be treated as a dress rehearsal for the full appeal.
2. At the hearing before us we invited Mr Riddell to draw to the Court's attention to material the considered best supported his application. Mr Riddell indicated, in response to a question from the bench, that grounds 6 and 8 of his proposed grounds of appeal would be sufficient for this Court to form an impression of the merit of his proposed appeal.
3. A third matter going to the merits of his appeal that Mr Riddell emphasised during the oral hearing, and asked the Court to consider, is annexure NDC on the USB which sets out what he describes as the "120 non-disclosed calls" which he contends to be calls between the "senior officer in charge" and "his informant". His allegations include that the senior police officer declared in an affidavit that there were 90 calls, when in fact there were 120 more, and that the disclosed calls were edited of their content.
4. Having considered that material, we will approach the current application on the assumption (without deciding) that those grounds are at least fairly arguable. Consistent with the authority set out above, it is neither necessary nor desirable for this Court to consider the merits of Mr Riddell's appeal beyond that.

Mr Riddell's further complaints

1. Mr Riddell's written and oral submissions focus heavily upon his complaints about the decision of Wright J, about the various decisions I have set out above by way of background, and about his trial. When considered in the context of the significant matters which weigh in favour of the orders of Wright J (set out from [103] below) none of the matters relied upon provide any material support for Mr Riddell's contention that it is in the interests of justice that this Court reconsider, vacate or amend the orders of Wright J.
2. Given the wide-ranging nature of these complaints, it is not intended to deal with each and every one of them in this judgment. Rather, given our invitation to Mr Riddell to draw our attention during oral submissions to any matters which he regarded as best supporting his application, we will deal in this judgment with those matters which Mr Riddell identified in response to that request.

Mr Riddell's complaint that the Crown wrote his appeal before the Court on 23 October 2015

1. Mr Riddell has repeatedly submitted that "he was forced to withdraw [his first application for an extension of time to file a notice of appeal and to seek leave to appeal] after CDPP wrote this appeal on his behalf after the court allowed Neil SC to do so". It is apparent that this is a reference to an exchange that occurred at a callover before the Registrar of this Court on 10 September 2015 and the appeal book then filed by the Crown.
2. Mr Riddell attended the callover by video link. Mr Neil SC appeared for the Crown for all grounds except ground 2 with Ms England who appeared on all grounds. During oral submissions on the current application, Mr Riddell referred to the transcript of this callover and submitted that "you have to go back to the transcripts". He then submitted: "So, I'm just bringing up a document here, okay. So the transcript number is, transcript 153451. Alanna Van der Veen called me with no notice to announce Neil would write my appeal and tell me I couldn't appeal the 20 pages orders of Hulme J which was in fact untruth. So Alanna Van der Veen explained at transcript 7; "I brought this matter back today because the Crown Peter Neil, wanted to clarify somethings about how the matter was going to [be] moved forward." If you read that transcript, you will find that Peter Neil gained permission to write my appeal and put it before the Court. And that's what he did and I received it that one day before the hearing, it was an 80 page appeal plus a massive appeal book which you have on the usb, with a misleading and perjurious narrative and if you look at it, it was 13,000 pages. Now I received that one day prior to the hearing."
3. That transcript shows Mr Riddell had sought to appeal under s 5F of the Criminal Appeal Act against orders of R A Hulme J in March 2015 directing that he provide a summary of his arguments on appeal within a specified page limit, but that the purported appeal had not been accepted for filing. The Registrar informed Mr Riddell that he could agitate that at the hearing listed for his substantive appeal if he wished to. Mr Riddell confirmed during the callover a "25 page summary" he had had attached to the purported s 5F appeal summarised his grounds of appeal. He also confirmed that he had filed a 10 page outline with his appeal, together with approximately 900 pages of his notes.

Mr Riddell's complaint about lost grounds of appeal

1. Mr Riddell contends that the decision in Riddell v R (No 3) [2017] NSWCCA 92 is erroneous because the bench on that occasion could not find Mr Riddell's 47 pages of grounds of appeal and deliberately substituted them for a three page list of grounds and thus determined his application on the basis of the wrong document. This complaint is best explained in an email sent by him to the Registrar on 7 November 2022. The basis for the complaint appears to be that the Court did not cite from his 47 page grounds filed on 20 December 2016 and instead, when citing two of his grounds of appeal, did so from an "irrelevant summary document". He also contends that when the Court supplied him with digital versions of files from this Court's archives he "found my 47 page grounds in the middle of the Appeals Bail folder". In his submissions in reply on the current application, he contends that this amounts to an abuse of process and is a reason why the decision should not be relied upon.
2. Mr Riddell relies upon a Supreme Court of NSW Record of Proceedings in the Bails Callover List before the Acting Registrar, dated 6 February 2017, which records that the matter was listed for callover on 16 February 2017 and under the heading "Other orders or directions" says "Material Filed needs to be copied and served upon CDPP - 6 page letter; 15 grounds of appeal - locate that document; Hoeben CJ". However, the record of the callover on 16 February 2017 says nothing about lost grounds but records that Mr Riddell had filed two folders of material, and that Mr Riddell was ordered to file three pages of submissions on the question of leave. It appears that Mr Riddell complied with this order, as the Registrar subsequently recorded that Mr Riddell had filed submissions on 20 December 2016, an affidavit of 3 December 2016, and submissions of 21 March 2017 "purporting to be in accordance with my order to file short written submissions of no more than 3 pages".
3. The document that Mr Riddell contended to be his "grounds of appeal" which were lost by the Court, is a 47-page document filed 20 December 2016.
4. There is no evidence before the Court to support Mr Riddell's contention that the Court lost Mr Riddell's grounds of appeal, still less, that the Court relied upon something other than Mr Riddell's grounds of appeal. The judgment of this Court in Riddell v R (No 3) [2017] NSWCCA 92 makes it clear that the Court had regard to a document entitled "Grounds of Appeal" which was filed by Mr Riddell on 20 December 2016: at [8]. It is also clear that the Court had before it some 54 closely typed pages of submissions filed on 20 December 2016, and a further 139 pages of further submissions supplied by Mr Riddell at 1 May 2017: at [12]-[13]. That strongly suggests that the Court had before it the grounds of appeal filed on 20 December 2016 whether or not it was from that particular document that the Court used when it cited the first two of Mr Riddell's grounds in the judgment at [10]. Mr Riddell's contention that this Court determined that application without a proper appreciation of Mr Riddell's grounds of appeal should be rejected.

Mr Riddell's complaint that the orders of Beech-Jones CJ at CL were unclear

1. Mr Riddell contends that it was not until the judgment of Wright J in Riddell v R [2023] NSWCCA 167 that he (and he submits the Crown and the Court) knew what order (2) as made by Beech-Jones CJ at CL in Riddell v R [2022] NSWCCA 198 constituted. He relies in this regard upon the judgment of Wright J at [15], where his Honour explained to Mr Riddell that what was required to be included in the materials was a summary of Mr Riddell's submissions in support of his 15 grounds of appeal and did not have to include "material such as the transcript, exhibits and judgments from the two trials in the District Court or the other documentary evidence on which he proposed to rely" which would be included in any event in the materials before the Court if leave to appeal out of time were granted.
2. It cannot be said that there was any lack of certainty as to what was required by the orders of Beech-Jones CJ at CL, namely that Mr Riddell limit the nearly 4,200 pages of submissions and materials (which as set out above, largely constituted repetitive submissions) into a consolidated set of submissions which did not exceed 200 pages. If there was any doubt about what this required, this would have been resolved at the hearing of the purported appeal against those orders on 9 November 2022 where Justice Button explained to Mr Riddell that in those submissions he could cross-reference "to all the other material that will be before the bench in any event". To that, Mr Riddell responded "It's not a question of 200 pages of submissions" and referred his Honour to annex BJ1 which he described as "basically 1,200 pages of those 4,000 pages that are currently in issue they are just a running list of transcript references to be read as the Court reads the transcript of the first trial and re-trial". It is apparent from this that Mr Riddell understood what was required of him by order (2) of the orders of Beech-Jones CJ at CL.

Mr Riddell's complaint that Wright J misunderstood his position or did not consider the material before the Court

1. Mr Riddell submits that Wright J misunderstood his position as to whether he would be able to prepare submissions of 200 pages. It is clear from the extracts from the transcript which the Mr Riddell has included in Part C of his written submissions that before Wright J, he protested that he thought that "it can't be done that way", that it was "impossible" and that he couldn't comply.
2. Relevantly, in Riddell v R [2023] NSWCCA 167 Wright J held: "14 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. … 16 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. … 20 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."
3. There is no error in the judgment of Wright J in this regard. At [20], Wright J clearly recorded that Mr Riddell considered it would be difficult or impossible to comply with the direction to limit his submissions and summary of annexure to 200 pages. However, Wright J indicated that, despite these protestations, his impression was that Mr Riddell seemed to be prepared to attempt to do so. There is nothing in the material relied upon by Mr Riddell that demonstrates that his Honour erred in forming that impression.
4. Even if he did, we would not be prepared on that basis to revisit his Honour's orders. As his Honour repeated during Mr Riddell's oral submissions before him (recorded in the extracts from the transcript of the hearing relied upon by the applicant in Part C of his submissions in chief on the current application) that a limit of 200 pages was a "very" and "extraordinary generous allowance". Even if Mr Riddell did not appear to indicate a willingness to attempt to comply with such a direction, the interests of justice do not require that the orders of Wright J be reconsidered, vacated or amended. They gave Mr Riddell more than a fair further opportunity to comply with the orders of this Court.

Considerations in favour of maintaining the orders of Wright J

1. In our judgment, there are powerful factors which stand against reconsidering, vacating or amending the orders made by Wright J on 30 June 2023. These factors amply outweigh the matters relied upon by Mr Riddell. We are not persuaded that it is in the interests of justice that the orders of Wright J be reconsidered, vacated or amended.
2. Of most significance is Mr Riddell's failure, over the period of nearly 18 months between 8 September 2022 when the orders of Beech-Jones CJ at CL were made and the hearing before this Court on 1 March 2024, to comply with orders of this Court made on three separate occasions that he should be required to file submissions limited to 200 pages. Whilst he may consider that it is a waste of his time to do so, that does not excuse the blatant and deliberate failure to prosecute his application for leave to appeal with due diligence by complying with orders of this Court.
3. According to those orders, reiterated by this Court on 9 November 2022, compliance was required by 31 January 2023. By the time of the orders of Wright J on 30 June 2023 that non-compliance had persisted for over five months. Mr Riddell clearly refuses to accept that he should be subject to such a limit, but that is not a reason for finding that there is anything erroneous or unauthorised about such order. Nor does that excuse the deliberate decision of Mr Riddell to make no attempt to comply with this Court's orders over that period of time. As was held by Wright J, this non-compliance should not be countenanced: Riddell v R [2023] NSWCCA 167 at [18]. It amounts to a failure to prosecute his application for leave to appeal diligently. It stands strongly in favour of there being a dismissal of the current application and as a consequence his application for leave to appeal.
4. As has been repeatedly stated in this Court, in the period since 2015, Mr Riddell is not entitled to expect that the Court, and the Crown, will devote limitless resources to considering his various applications. The interests of justice demand that regard is taken of the interests of other litigants in this Court, and the unreasonable judicial resources that would be diverted to Mr Riddell's application if the situation was otherwise. In this regard, it cannot be doubted that the judicial resources required, even in the event that Mr Riddell had complied with Wright J's order to limit his submissions and if necessary a summary of materials relied on to 200 pages, would be significant. As is apparent from the background set out above, considerable judicial resources have already been expended upon Mr Riddell's applications.

Recusal application

1. Prior to the Court embarking on the hearing of Mr Riddell's application, the Court considered an application which had been made by him in an email forwarded to the Presiding Judge's Associate earlier on the day of the hearing. The email sought that Davies J recuse himself because his Honour had formed part of the bench in Riddell v R [2016] NSWCCA 70 and Riddell v R (No 2) [2016] NSWCCA 74.
2. The basis for the application was that the findings in those two judgments suffered from a denial of procedural fairness, unreasonableness and jurisdictional error, and were obtained irregularly, unlawfully and against good faith. That was said to have come about because the application that the Court dealt with which resulted in Riddell v R [2016] NSWCCA 70 was actually an application by the Crown and not the application which Mr Riddell had brought. After the Court refused an adjournment to Mr Riddell in Riddell v R [2016] NSWCCA 70, Mr Riddell said that he was forced to apply to abandon what he described as "Neil's Appeal", which resulted in Riddell v R (No 2) [2016] NSWCCA 74.
3. Mr Riddell submitted that because the appeal before the Court was not his appeal but a Crown appeal, and because the Crown now relies upon Riddell v R [2016] NSWCCA 70 and Riddell v R (No 2) [2016] NSWCCA 74 as part of its argument against extending time for Mr Riddell's appeal, there is an apprehension of bias for Davies J to take part in any determination of the present application. Mr Riddell relied on what was said in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2003) 97 ALJR 419 ("QYFM").
4. At the time Mr Riddell applied for Davies J to recuse himself, the Court, having considered Mr Riddell's submissions on the point, refused the application and indicated that reasons would be provided in the substantive judgment on his application. These are the reasons for that decision.
5. A determination of whether there is an apprehension of bias on the part of one member of a multi-member bench is a jurisdictional fact that the whole of the court must determine for itself in order to be satisfied of its own jurisdiction, and the determination of that question of jurisdictional fact is not antecedent to the performance of the curial function but part of that function: QYFM at [28]. The test in relation to apprehension of bias is set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8].

Conclusion

1. For the reasons set out above, Mr Riddell's applications should be dismissed.
2. Accordingly, we make the following orders: 1. The application that Davies J recuse himself is dismissed. 2. The application is dismissed.

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