Bishop v The Queen

[1982] FCA 33

Re: IAN ROY BISHOP
And: THE QUEEN (1982) 58 FLR 233
No. ACT G9 of 1982
Practice and Procedure - Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Deane(2) and Davies(3) JJ.

CATCHWORDS

Practice and Procedure - Notice of Appeal filed within time but not served - No sufficient explanation for failure to serve within time.

Federal Court of Australia Rules - O.3 r.2,3. O.52r.15(2).

Practice - Appeal - Crown appealed against sentence - Notice of appeal filed within time but not served - No adequate explanation for failure to serve within time - Whether time for service should be extended - Whether appellant being in gaol relevant - Federal Court Rules, O. 3, r. 3; O. 52, r. 15.

HEADNOTE

The appellant was convicted and sentenced in the Supreme Court of the Australian Capital Territory to a term of imprisonment. The Crown filed an appeal against the sentence within the prescribed twenty-one days after the date when judgment was pronounced. The notice of appeal was not served on the appellant until well beyond the time limit specified by the Federal Court Rules. An application by the respondent to the Federal Court (Fox J.) for an order extending the time for service having been granted, the appellant appealed to the Full Court against that decision.

Held, per curiam, upholding the appeal, that in the special circumstances of an appeal by the Crown against sentence it would be wrong and unjust, after the prescribed period for filing and service of notice of appeal had expired without a notice of appeal having been served, to accede to an application by the Crown to extend the time in which service could properly be effected unless special circumstances were established to justify the grant of the indulgence sought. In the instant case the Crown failed to establish an acceptable explanation of why the notice of appeal was not served in time. The fact that the appellant was in gaol did not in any way lessen the need for special circumstances to be shown.

Morres v. Papuan Rubber and Trading Co. Ltd. (1914), 14 SR (N.S.W.) 141; R. v. Tait (1979), 46 FLR 386, applied.

Whitehouse Hotels Pty. Ltd. v. Lido Savoy Pty. Ltd. (1974), 131 CLR 333; Ratnam v. Cumarasamy, (1965) 1 WLR 8; Revici v. Prentice Hall Incorporated, (1969) 1 WLR 157, referred to.

HEARING

Canberra, 1982, March 24. #DATE 24:3:1982

APPEAL.

Appeal from a decision of Fox J. to the Full Court of the Federal Court of Australia.

H. D. Palmer, for the appellant.

J. R. Pritchard, for the respondent.

Solicitor for the appellant: G. M. Wheeler.

Solicitor for the respondent: B. J. O'Donovan, Commonwealth Crown Solicitor.

E. F. FROHLICH

ORDER

1. The appeal be upheld.

2. The order of Fox J. extending the time for filing the notice of appeal be set aside.

3. The application for extension of time be dismissed.

JUDGE1

Mr. Justice Deane will deliver the first judgment.

Ian Roy Bishop ("the appellant") was convicted on 25 November, 1981 in the Supreme Court of the Australian Capital Territory on each of two counts of supplying a controlled substance and one count of possessing a controlled substance for the purposes of supply, contrary to ss.42 and 43 of the Poisons and Narcotics Ordinance, 1978. He was sentenced to four years' imprisonment with a non-parole period of two years on each charge. It was ordered that all sentences be served concurrently.

An appeal was instituted by the Crown against sentence and a notice of appeal was filed on 15 December, 1981 in the Australian Capital Territory District Registry of the Federal Court, in compliance with O.52 r.15(1)(a)(i) of the Federal Court Rules, that is to say it was filed within 21 days after the date when the judgment appealed from was pronounced. However, the notice of appeal was not served upon the appellant until 8 January, 1982, which was beyond the 21 day period stipulated in O.52 r.15, and service did not satisfy the requirements of the rules (see Whitehouse Hotels Pty. Limited v. Lido Savoy Pty. Limited (1974) 131 C.L.R. 333, at p. 336). An application to the Federal Court was made on behalf of the Crown seeking an order extending the time for serving the notice of appeal. On 3 February, 1982, Fox J., sitting in Chambers, made an order nunc pro tunc extending the time for service of the notice of appeal up to and including 8 January, 1982. In the present appeal, the appellant seeks to reverse this order extending the time for serving the notice of appeal.

At first instance, Fox J., held that O.3 r.3 of the Federal Court Rules empowered him to extend the time for serving the notice of appeal. Order 3. r.3 confers, inter alia, a general power upon the Court of a Judge to extend any time fixed by the Rules either before or after the time expires and whether or not an application for extension is made before the time expires. It is argued, on behalf of the appellant, that the powers conferred by O.3 r.3 were not available in the particular circumstances of the present matter because O.52 r.15(2) specifically dealt with the circumstances of the present matter and excluded the applicability of O.3 r.3. As at present advised, I am inclined to agree with the view of Fox J. that O.52 r.15 should be seen as referring to the case where the relevant application is to extend the time both for instituting and serving the notice of appeal and should not be treated as excluding, from the general powers conferred by O.3 r.3, the power to extend the time for serving a notice of appeal which was duly filed within time (see, Whitehouse Hotels Pty. Limited v. Lido Savoy, supra). It is, however, unnecessary that I express any final view on that question since I have reached the conclusion that, in the circumstances of the present case, it is ultimately unimportant whether the appropriate provisions were those contained in O.52 r.15(2) or those contained in O.3 r.2.

On the basis that the provisions of O.3 r.3 were available, the relevant principles to be applied in the present case were, in my view, enunciated by Cullen C.J. in Morres v. Papuan Rubber & Trading Co. Limited ((1914) S.R. (N.S.W.) 141 at p. 144):
". . . when a party, who has neglected to observe those requirements which the rules place him under for the protection of the other side, comes for the indulgence of the Court to ask that the proceedings shall continue notwithstanding that default, he has to satisfy the Court that justice requires that that default of his shall be overlooked, and he must satisfy the Court that there is some reasonable kind of explanation or excuse for his neglect of the rules".
(See, also Ratnam v. Cumarasamy (1964) 3 All E.R. 933 at p. 935; Revici v. Prentice Hall Incorporated (1969) 1 All E.R. 772 at 774). What is required by way of explanation and the requirements of justice will, of course, vary with the circumstances of the particular case. In the present case, Mr. Palmer, who appears for the appellant, has placed particular reliance upon the fact that the appeal in question is an appeal by the Crown against sentence on the grounds of inadequacy.

A right in the Crown to appeal against the sentence imposed in a criminal proceeding has become common place in Australia. It is, nonetheless, a right of appeal which raises special considerations. As a Full Court of this Court commented in The Queen v. Tait & Bartley ((1979) 24 A.L.R. 473 at p. 476):
"Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across "time-honoured concepts of criminal administration" (per Barwick C.J., Peel v. R. (1971) 125 C.L.R. 447 at 452; (1972) A.L.R. 231 at 233). A Crown appeal puts in jeopardy "the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal" (per Isaacs J, Whittaker v. R, supra at 248). The freedom beyond the sentence imposed is, for the second time, in jeopardy before the sentencing court".

In a system which permits Crown appeals against sentence, a convicted person who has been sentenced knows that until the time for filing and serving a notice of appeal has expired he must regard himself as remaining in jeopardy as to his freedom beyond the sentence or sentences imposed. If the time for filing and serving a notice of appeal expires without a notice of appeal being served upon him, he is, in the absence of special circumstances, entitled to regard that period of double jeopardy as closed. In the special circumstances of an appeal against sentence, it would, in my view, be wrong and unjust after that period had expired without a notice of appeal being served to accede to an application by the Crown to extend the period of time in which service could properly be effected unless there were evidence disclosing an acceptable explanation of the failure to serve within time and unless special circumstances were established to justify the grant of the indulgence sought by the Crown.

The approach which the learned judge at first instance adopted in the present case appears from the following extract from his judgment:
"One looks to see the reason for the delay, that is to say, the reason for the Crown being out of time, whether it is excusable or not, and what effect, if any, being out of time had upon the respondent. No evidence has been filed on behalf of the respondent, and there is no evidence or, indeed, any suggestion, that he was in any way prejudiced by the lateness. He was in gaol and had a long period remaining to be served under the sentences which were imposed".

With all respect to those who might see the matter differently, I am unable to accept that the fact the appellant was in gaol in any way lessens the need for special circumstances to be shown to exist before the Crown should be granted an extension of time for serving a notice of appeal against sentence or for there to be an adequate explanation of the failure to serve a notice of appeal within time. The fears, apprehensions and expectations of ordinary men are prone to be exaggerated rather than lessened by confinement. The prejudice of renewed jeopardy, after the absence of service would indicate the jeopardy had come to an end, is in no way limited by the consideration that the appellant was in gaol serving the sentences which had been imposed.

The letters from the legal aid office of the Australian Capital Territory to the Deputy Crown Solicitor's Office which have been placed in evidence by the Crown clearly lead to the conclusion that the appellant was unaware that a notice of appeal had been filed until it was served upon him on 8 January, 1982. The case is plainly one in which it was encumbent upon the Crown to establish an acceptable explanation of why the notice of appeal was not served within time and to show that special circumstances exist to justify an order regularising its service of the notice of appeal out of time. In my view it signally failed to do either of those things.

Upon examination, the evidence adduced by the Crown offers no real explanation at all as to why the notice of appeal was not served within time. The affidavit of Mr. Stefaniak discloses, as does the Court file, that the notice of appeal was filed on 15 December, 1981, that is 20 days after the sentences were imposed. There is no suggestion that the notice of appeal could not, if it had been so desired, have been filed before that day. On 15 December, 1981, Mr. Hempenstall of the Deputy Crown Solicitor's office telephoned an officer of the A.C.T. Legal Aid Office which had acted for the appellant in the criminal proceedings. The evidence indicates that Mr. Hempenstall was informed that the officer of the Legal Aid Office in question was unacquainted with the conduct of the matter "and that the Legal Aid Office" had "no instructions relating to the Crown Appeal or indeed relating to this matter at all from Mr. Bishop and that of course (the Legal Aid Office) could not accept any service unless and until instructions to that effect" were received. There is no evidence that the notice of appeal could not at that time have been served upon the appellant on the following day which was still within the 21 days allowed for service of a notice of appeal. In the event, the Legal Aid Office did not receive instructions to accept service on the appellant's behalf. One looks in vain for any stated reason as to why service was not effected within the time permitted by the rules or as to any special circumstances justifying an order extending the time for service. This is not a case in which it could be suggested that the Crown had difficulty in locating the respondent. The Crown had him in its custody.

The conclusion which I have reached, in all the circumstances, is that the Crown failed to establish any proper ground for extending the time for appealing in the present matter. It is unnecessary to consider the further submission made on behalf of the appellant that an extension of time should not have been granted in the absence of material showing the appeal would have a reasonable prospect of success.

I would uphold the appeal and set aside the order extending the time for filing the notice of appeal. I would order that the application for extension of time be dismissed.

BOWEN C.J: I agree

DAVIES J: I agree with the decision and the substance of the reasons of Deane J. However, I wish to make it clear that, in my view, there is no principle that an applicant must establish special circumstances when one is dealing with a mere irregularity, such as a failure to serve within time. If there is a failure to file and serve a notice of appeal within time, then O.52, sub-r. 15(2) requires that there be special reasons for the grant of an extension of time. The terms of that sub-rule set out a principle which has long been established in the law. However, once an appeal has been commenced within time and what is sought is a mere extension of time for the serving of the notice of appeal, it seems to me that it is not necessary in every case that special reasons or special circumstances be shown. Nevertheless, in the particular circumstances of this case, having regard to the fact that this was an appeal against sentence, that the prisoner was in double jeopardy and that there was no reason why the notice could not have been served within time, I agree that in those circumstances the extension of time should not have been granted.