DJT v Tasmania (No 2)
[2020] TASSC 37
•28 July 2020
[2020] TASSC 37
COURT: SUPREME COURT OF TASMANIA
CITATION: DJT v Tasmania (No 2) [2020] TASSC 37
PARTIES: DJT
v
STATE OF TASMANIA
FILE NO: 3128/2019
DELIVERED ON: 28 July 2020
DELIVERED AT: Hobart
HEARING DATE: 21 February 2020
JUDGMENT OF: Geason J
CATCHWORDS:
Criminal Law – Appeal and new trial – Procedure – Notice of appeal – Competency of second application to extend time – Order dismissing first application distinguished from an order determining an appeal – Court has jurisdiction to hear second application to extend time.
Grierson v The King (1938) 60 CLR 43; R v Smith(No 2) [1969] QWN 50; Mata v The Queen (1995) 126 FLR 127; R v Upson (No 2) [2013] QCA 149, 229 A Crim R 275; R v AP [2003] QCA 445; R v Spiero [2001] SASC 19, 78 SASR 531; Postiglione v The Queen (1997) 189 CLR 295; R v Parenzee [2008] SASC 245; Lowe v The Queen [2015] NSWCCA 46, 249 A Crim R 362, referred to.
Aust Dig Criminal Law [3555]
REPRESENTATION:
Counsel:
Applicant: F Cangelosi
Respondent: E Avery
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2020] TASSC 37
Number of paragraphs: 72
Serial No 37/2020
File No 3128/2019
DJT v STATE OF TASMANIA
REASONS FOR JUDGMENT GEASON J
28 July 2020
On 7 June 2018, the applicant, DJT, was found guilty by a jury of two counts of rape, and two charges of maintaining a sexual relationship with a young person. He was sentenced to imprisonment for a period of 15 years, with a non-parole period of 9 years and 6 months.
By an application filed on 13 November 2019 an extension of time is sought to bring an appeal against conviction and sentence. The applicant relies upon the power to extend time in s 407(5) of the Criminal Code. That power is exercisable by a single judge: s 418(1)(a).
This is the second application seeking an extension of time to file a notice of appeal, the first having been dismissed.
The respondent submits it is incompetent for that reason[1].
[1] Because an appeal pertaining to the conviction and sentence was determined at the point the first application was dismissed.
The parties have asked the Court to deal with the matter in three stages. Those three stages are:
1Determination of the question of whether the applicant's application for leave to extend time to give notice of appeal is competent.
2If so, whether time should be extended.
3And if so, the determination of the appeal.
This decision relates to the first stage, the competency of the application.
Chapter XLVI of the Criminal Code governs appeals to the Court of Criminal Appeal (the court). The court is created by s 400(1) as a court comprising three or more judges, or with the consent of the parties, two or more judges.
A convicted person may appeal as of right against a conviction involving a question of law and with leave (or upon certification by the trial judge), against a conviction involving a question of fact, a question of fact and law or upon "a sufficient ground" of appeal: s 401(1).
A convicted person may appeal against the sentence imposed on conviction, provided the sentence is not one fixed by law: s 401(1)(c).
Notice of an appeal must be given within 14 days of conviction: s 407(1).
The time within which to give such notice may be extended by the court: s 407(5).
An appeal is determined by the court in accordance with s 402 of the Code.
The powers of the court reposed in a single judge are limited to those set out in s 418 of the Code. They include the power to dismiss an appeal under ss 402(7) and 418(1)(d). Section 418(1)(d) is a power to give leave to withdraw or discontinue an appeal. Section 402(7) confers power to dismiss an appeal if the court is satisfied that an appellant has failed to take all reasonable steps to prosecute the appeal and it is necessary or expedient in the interests of justice to do so.
The first application for an extension of time was dismissed. Filed on 6 August 2018 the decision is reported at DJT v Tasmania [2018] TASSC 57.
The court heard submissions from the applicant and the State in relation to the proposed grounds of appeal. Its reasons disclose a detailed analysis of those grounds and culminate in this conclusion at [34]:
"In my view none of the grounds of appeal relied upon by the applicant in his notice of appeal or his subsequent submissions have any merit at all. There is no realistic prospect that the Court of Criminal Appeal would be persuaded that there has been a miscarriage of justice, or that for any other reason an appeal by the applicant should be allowed. Granting an extension of time would therefore be futile. I have therefore decided to dismiss the application for the extension of time. It follows that the applicant's purported appeal must also be dismissed."
The effect of the refusal to extend the time was that there was no appeal against conviction before the court. For that reason, the conclusion that "it follows that the applicant's purported appeal must also be dismissed" was unnecessary. There was nothing to dismiss. Had there been a competent appeal a single judge had no power to dismiss it in the circumstances: s 418 of the Code.
It must follow that the dismissal of the appeal involved the purported exercise of a non-existent power in relation to a non-existent proceeding.
The question which flows from that conclusion is upon what basis can the State assert there has already been an appeal determined, such that the second application is incompetent?
It is to be borne in mind that there is a material distinction between an application to extend the time for bringing a notice of appeal and an appeal. It is an important distinction, and ultimately determinative of the point.
Discussion
The State's argument is predicated upon the view that the applicant has had an appeal against conviction determined. That is because when the first application was decided by the Chief Justice, the grounds of the appeal were considered, and determined to be unmeritorious, and without realistic prospect of success: see above at [15] This is submitted to have resulted in an appeal against conviction having been determined.
That the grounds accompanying this application are new grounds does not affect this submission. On the State's case the barrier to this application lies in the determination of the first matter.
It also submits that there is no express power to apply a second time for an extension of time to file a notice of appeal (save under s 402A which is not relied on).
In the circumstances, the State says the only recourse available to the appellant is under ss 402A or 418(2) of the Code.
The State relies upon the decision of the High Court in Grierson v The King (1938) 60 CLR 43, for the proposition that the Court cannot entertain the application.
In Grierson (above) the High Court was considering an application for special leave to appeal from a decision of the Supreme Court of New South Wales, sitting as a Court of Criminal Appeal. An application to reopen an appeal against conviction had been refused by that court because an appeal from the same conviction had been heard and dismissed already. It was held that a second appeal from the same conviction could not be entertained. The High Court upheld this conclusion, holding that the court's jurisdiction was exhausted.
Dixon J (as he then was) distinguished the situation from one in which a prisoner has abandoned his appeal, observing that in such circumstance, the Court of Criminal Appeal in England had a practice of exercising a discretion to allow withdrawal of the notice of abandonment, even though it too operates as a dismissal of the appeal.
I mention this because the distinction is explained on the basis that in such a case, there has been no determination of the appeal by the court. Had there been, his Honour observed that there was no English authority to the effect that the case could be revisited in a second appeal.
The principle for which Grierson stands is that where there has been a determination of an appeal, no subsequent right of appeal exists, unless expressly provided for by statute.
The applicant submits that there has not been a determination of an appeal against conviction, only of an application to extend time to give notice of an appeal. As such, he submits that the principles articulated in Grierson (above) have no application.
Sometimes there will be a determination of an appeal at the stage of an application for leave, or an extension of time, but only where the court's procedure rolls those steps together. I refer to examples later in these reasons. In those cases, there is nevertheless a substantive hearing of the appeal grounds, as if leave had been granted. Those grounds are thus determined by a properly constituted court, and it can be said, accurately, that there has been a hearing and determination of the appeal.
The question in this case is whether there has been a determination of the appeal on the application for leave to extend time to file a notice of appeal.
In my view there has not been. I consider that to be factually so, because the application before the Chief Justice was a different type of application. I consider it to be legally so, because the Chief Justice did not have the legal authority to determine an appeal.
I have already set out the powers vested in a single judge. None of those circumstances was engaged.
What then of the court's conclusions about the merits of the proposed grounds of appeal? Those conclusions pertained to the application before the court for an extension of time to file a notice of appeal. They were determinative of that application. That was not a rolled up proceeding such as occurs when there is a leave application and a hearing of the substantive grounds of appeal at the same time, and it could not have been, because the matter was being heard by a single judge and not a court constituted as required by s 400 of the Code.
The State misconceives the nature of those proceedings as final when they are not. The proceeding was interlocutory. The application to extend time engages a different judicial power from that exercised in an appeal.
Granted, the practical effect of the determination was the same in the sense that it brought that proposed appeal to an end. The difference alluded to in Grierson, between an appeal that has been determined, and one that is abandoned (and thus not determined), is illustrative of the distinction. Even though both situations bring the appeal to an end, one extinguishes the right to pursue the appeal again, while the other does not.
The disposal of the application for an extension of time had the effect of bringing that appeal to an end, but it was not a determination of the appeal, and did not extinguish the right to appeal.
The State referred me to a number of authorities, and I will deal with them briefly. The first is R v Smith(No 2) [1969] QWN 50. I distinguish that case on the basis that the applicant had already had an appeal determined and was seeking a further appeal on the grounds of fresh evidence. Though that involved a second application to extend time, the relevant point is that the first appeal had been heard and determined as part of the proceedings in which the first extension of time was sought. The grounds of appeal were argued fully before a full bench of the court. That brings the case within the principle articulated in Grierson.
The next case to which I was referred was Mata v The Queen (1995) 126 FLR 127. Counsel for the State referred me to the judgment of Pidgeon J at [129] and Owen J at [131]. At [129] Pidgeon J, after referring to Grierson (above) said:
"This would apply even though different grounds are put forward in the second application. It was so held by the Court of Appeal in New Zealand in R v Whickliffe (1986) [1 NZLR 4]. The order made by the court at the earlier hearing was an order that time be refused and time was refused on the basis that the proposed grounds had no merit. As it was a refusal of time as distinct from a refusal for application for leave, can it be submitted that it is a different category? In my view, the reasons of Sir Owen Dixon in Grierson indicate that it makes no difference that the first application is an extension of time. His Honour considered that the principles apply to both an appeal or application for leave to appeal and I would consider that similar reasoning would apply to an extension of time …".
Roland J agreed with Pidgeon J.
In the same case, Owen J, at [131] said this:
"The applicant has now lodged a second application for an extension of time. The grounds of the proposed appeal are different from those that were before the court on the previous occasion … Once an appeal has been heard on the merits, all statutory rights of appeal have been exhausted. Any further appeal is incompetent: Grierson at [435]-[436]. It matters not that the second application proceeds on different grounds from those advanced on the earlier occasion: Grierson at [432]; Vella v The Queen (1991) 4 WAR 278. The same principles applied whether the problem arises in a substantive appeal or in an application to extend time: R v Smith(No 2) (1969) [QWN 50]."
It is true that in Smith there was an application to extend time, but the material point, again, is that there was a determination of the substantive grounds of appeal as part of that application by a court with the power to do so. The grounds were argued as if the appeal was on foot.
With respect, I consider that Owen J's reference to Smith ignores that aspect, even though it is that point alone which brings that case within the principle articulated in Grierson.
Next I was referred to R v Upson (No 2) [2013] QCA 149, 229 A Crim R 275. That case determined that the right to appeal against sentence conferred by the Criminal Code in Queensland, was exhausted when an application for leave to appeal was refused. This result was not avoided by the refinement of the original grounds of appeal, the formulation of different grounds, or indeed reliance upon new evidence.
The discussion in Upson reveals that the court's decision was based squarely upon the same "rolled up" practice of dealing with leave to appeal and the appeal itself. The orders made in such cases ignored the leave aspect altogether as Fraser JA noted at [11]: "… the practice in cases of appeals against conviction extends to the form of the court's orders which dispose of such appeals without any reference to any leave being granted or refused."
His Honour's point was that in an appeal against conviction or sentence, the leave requirement "has ordinarily been regarded in both cases as a mere formality." Thus the situation in Upson was that there had been a determination of the substantive grounds of appeal, engaging the principles in Grierson.
A similar situation to the issue which arises in these proceedings arose in R v AP [2003] QCA 445, but the court found it unnecessary to decide the point. At [26] McMurdo J said this:
"[26] Although the applicant has had a prior application for an extension of time within which to appeal against conviction, that application was based on quite different grounds to those now raised. There is some debate as to whether, in those circumstances, this Court has jurisdiction to hear a further application for extension of time. Cases such as Grierson v R; R v Smith; R v Smith [No 2] and R v Kenny suggest this Court has no jurisdiction to determine a second application for an extension of time within which to appeal against conviction. On the other hand, Re Sinanovic's Application, suggests that were the applicant is able to establish that he had new matters demonstrating good prospects of success on appeal, this Court may have the power in the interests of justice to grant an application for an extension of time within which to appeal, even at this very late stage and after an earlier unsuccessful application on a separate basis. As the grounds of appeal sought to be argued by the applicant in the appeal here are without substance, it is unnecessary to express a concluded view on this point."
In the same case, Davies JA at [39] observed, that:
"[39] The principle stated in Grierson is based on the statutory nature of an appeal and the finality of a decision given on such an appeal. Moreover it was said in that case to apply equally to a dismissal on the merits of an application for leave to appeal." [My emphasis.]
Then at [40]-[42] his Honour concluded that an application for leave to extend time was an interlocutory one, and not caught by the principle in Grierson:
"[40] I do not think that the application of this principle to cases in which a previous appeal has been dismissed on its merits can now be in any doubt. And even if I had any doubt on that question I would feel bound to follow the now abundant authority in the High Court, this Court and other intermediate courts of appeal.
[41] The application of this principle to an earlier decision dismissing an application for leave to appeal is less clear, notwithstanding the statement by Dixon J in Grierson that it does apply. Such an order appears on its face to be an interlocutory one notwithstanding that it may be on the ground that the appeal would fail on its merits. However the principle was applied to such a case by the Court of Criminal Appeal twice and appears to have been accepted by this Court in R v Pettigrew, though the Court held that it had a limited power to reconsider such a decision. In my view there is a great deal to be said for the application of this principle to applications for leave to appeal against sentence in this Court as those applications are, in practice, treated as appeals. However I do not find it necessary to reach a final conclusion on this question.
[42] In the present case, as the facts stated by the President show, what had previously been dismissed was an application for an extension of time within which to appeal against his conviction. That was, in my opinion, much more clearly an interlocutory order notwithstanding that the application was dismissed because the Court thought that there were no merits in the applicant's proposed appeal. In my opinion, therefore, such an order does not preclude this Court from hearing a further such application, though if it were based on the same grounds it would be bound to fail. It is therefore necessary to consider the merits of this application which is not on the same grounds."
Jones J agreed with the reasons given by her Honour McMurdo P (who found it unnecessary to resolve the point).
In R v Spiero [2001] SASC 19, 78 SASR 531, the South Australian Court of Criminal Appeal held that the application for leave to appeal in that case, which was the second such application, should be dismissed because it could not succeed. Relevantly, however, the court noted that on the authority of Postiglione v The Queen (1997) 189 CLR 295 at [77] a second application for leave to appeal might be made in some cases where a previous application has been summarily dismissed.
The first application for leave in Spiero had been refused summarily. The court did not dismiss the appeal, but the application for leave to appeal. At [13] the court said this:
"If leave to appeal had been granted and the appeal itself had been dismissed after a hearing on the merits there could not be a second appeal. (Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 and the other cases referred to in Brain's[2] case at [69]). If leave to appeal had been granted, but the appeal dismissed pursuant to Rule 20 because of a failure to prosecute it and the order of the court had been perfected … the question would arise as to whether the dismissal could be set aside. This was the situation which arose in Brain's case where it was held that the court had an inherent power to revoke the order and resume the hearing of the appeal. It is apparent from the reasons of the court in Brain's case that, although there is power to set aside an order for dismissal made in circumstances in which the appeal was not considered on its merits, the power is to be used cautiously and only when the interests of justice require it. The present case is to be distinguished from Brain's case in that here the matter did not go beyond an application for leave to appeal which was not heard on the merits but was summarily dismissed for want of prosecution."
[2] R v Brain [1999] SASC 358, 74 SASR 92.
Once again, the determination of the question turned upon whether there had been a full consideration of the grounds of appeal, or a summary one.
In R v Parenzee [2008] SASC 245, the court was considering an application for extension of time in which to appeal against convictions in the South Australian District Court. The question of the court's jurisdiction to hear the application arose because there had been an earlier application for permission to appeal. The State submitted that the distinction between the application for leave and the appeal itself, was not decisive, because the practice of the court when considering an application for permission to appeal, was to consider the merits of the proposed grounds of appeal. If the merits of the proposed grounds of appeal had been considered the power of the court to hear and decide the appeal had been exercised such that a second application for permission to appeal was not competent.
At [30], Doyle CJ said this:
"This Court has decided on several occasions that once it has heard and determined an appeal against conviction under s 352(1) of the CLCA, and once the order disposing of the appeal has been entered in the court records as required by the Appeal Rules, the Court has no jurisdiction to hear a further appeal against the same conviction, and the Court has held that the barrier to it hearing a further appeal is not avoided by asking the Court to 'reopen' the hearing of the appeal."
At [32] his Honour said:
"But the Court of Criminal Appeal (CCA) has not yet heard or disposed of an appeal against Mr Parenzee's conviction. By refusing to extend the time within which to apply for permission to appeal the CCA decision prevented Mr Parenzee from appealing against his conviction. Even if the Court had granted an extension of time, there would not have been an appeal against the conviction on foot unless and until the Court also granted permission to appeal …".
Doyle CJ referred to the decision in Spiero in his analysis. He noted that Duggan J, with whom the other judges had agreed, had said that as the court had not dealt with an appeal against sentence, but only an application for permission to appeal, there could be a further application for permission to appeal and if that were to succeed, an appeal against sentence. He went on to say at [34]:
"There is a significant difference between the hearing and disposition of an appeal against conviction, and the hearing and disposition of an application for permission to appeal, or for an order extending the time within which to appeal or to apply for permission to appeal. In the latter circumstances, the Court does not entertain or exercise jurisdiction over an appeal until permission is given to appeal, or until an order has been made extending the time within which to appeal and, if permission to appeal is required as well, an order granting permission to appeal is made."
And at [48]: "I remain of the opinion that there is a valid and relevant distinction to be drawn between the dismissal of an appeal, and the refusal of permission to appeal."
Anderson and Bleby JJ concluded that there was not a material distinction between the refusal of an application for permission to appeal which has been heard on its merits and the dismissal of an appeal.
This is the only case to which I was referred which might support the State's argument. If it does it stands alone, and I respectfully decline to follow it on the basis that every other authority, including Grierson, limits the operation of the principle in Grierson to cases where a determination of the grounds of appeal has occurred.
The remarks of Simpson J in Lowe v The Queen [2015] NSWCCA 46, 249 A Crim R 362 at [7] and following are pertinent:
"[7] The grant (or refusal) of leave to appeal is a discretionary decision. Refusal of leave to appeal does not create a jurisdictional bar to any further proceedings. If it be the case that a second (or subsequent) application for leave to appeal raises issues that have been determined on the merits in a previous application, that provides a powerful basis for the exercise of the discretion against a grant of leave. This, no doubt, is what Duggan J had in mind in R v Spiero [2001] SASC 19; 78 SASR 531 (for more detail, see the judgment of Davies J at [101] and [102], in the latter of which the relevant passage is extracted).
[8] It must be assumed that there was a reason that the legislature drew the distinction between appeals as of right, and applications for leave to appeal. They are different procedures, and have different consequences.
[9] That, in my opinion, is sufficient to dispose of the jurisdictional issue. However, the conclusion is supported by authority, to which I need refer only briefly, since it is fully dealt with in the judgment of Davies J.
[10] The high point of the argument advanced on behalf of the respondent is a single passage in the judgment of Dixon J in Grierson v The King [1938] HCA 45; 60 CLR 431. As Davies J has pointed out, no issue of a subsequent application for leave to appeal arose in Grierson. Grierson was concerned with an attempt to launch a second appeal, after dismissal of the first appeal. The passage in the judgment of Dixon J on which the respondent relies is:
'The court [the Court of Criminal Appeal] refused an application on the part of the prisoner to reopen an appeal which he had brought unsuccessfully from his conviction or to give him leave to bring a fresh appeal …
The Supreme Court held, in accordance with the decision of the Supreme Court of South Australia (R v Edwards (No 2) [1931] SAStRp 59; [1931] SASR 376) that a second appeal from a conviction could not be entertained after the dismissal, upon the merits, of an appeal or application for leave to appeal, and that the first appeal could not be re-opened after a final determination.' (italics added)
[11] In fact, the decision in Edwards included the following:
'There is no express power to entertain a second appeal, or to hear a second application for leave to appeal, and there is no precedent in either case for its being done. There can be no doubt that the Court has power to entertain a second application for leave to appeal, at any rate, where it has not heard the merits of the application.'
[12] The observation of Dixon J, in my opinion, (and with respect to Callaway JA, who in The Queen v GAM (No 2) [2004] VSCA 117; 9 VR 640 declined so to declare), is obiter.
[13] The remark of Dixon J has been superseded by the more recent and pertinent decision of the High Court in Postiglione v The Queen [1997] HCA 26; 189 CLR 295 (see the judgment of Davies J at [77]) in dicta to which three judges (Dawson, Gaudron and Kirby JJ) subscribed. Their Honours anticipated precisely the situation that has here arisen, as did this Court in R v Stead [1999] NSWCCA 41."
Ward JA agreed with her Honour.
I agree with her Honour's analysis and conclusion.
I hold that the previous decision was made in interlocutory proceedings incapable of resulting in a determination of an appeal. Despite the comprehensive assessment of the merits of the proposed grounds of appeal on the first application, there was not a determination of the appeal in accordance with the Code. The purported dismissal of the appeal was without legal effect because there was no appeal on foot, and it was beyond the power of a single judge to dismiss an appeal, anyway. As a result there has not been a determination of an appeal as between the applicant and the State in respect of his conviction or sentence.
I turn to consider whether there is a fetter on the right to seek an extension of time to file a notice of appeal, as the State suggests.
The right to make such application is a statutory one. Section 407 of the Code creates that right No statutory limit upon the exercise of that right is expressed within its terms. Reference to s 402A is inapposite because that relates to bringing a second appeal.
Should such limit be inferred?
In Postiglione v The Queen (above) (in the passage referred to by Simpson J above), Dawson and Gaudron JJ (with whom Kirby J agreed) said:
"Ordinarily, it is of no consequence whether an order is made dismissing an application for leave to appeal or whether leave is granted and the appeal dismissed. However, putting aside applications which are frivolous or vexatious, there is no reason in principle to prevent a person bringing a second application for leave to appeal if an earlier application has been dismissed."
This recognises that there will be cases where a further application to extend time is necessary. For example, because the basis for an appeal has not emerged at the time the first application is dismissed. In Postiglione (above) the disparity in sentence emerged later when a co-accused was sentenced.
For that reason, I consider that the right to seek an extension of time to bring an appeal should not be regarded as fettered in the way the State contends. It is of course subject to the court's power to control an abuse of its process. As was observed in Postiglione by Dawson and Gaudron JJ an application based on matters agitated in an earlier application would be frivolous or vexatious. The right is not otherwise constrained, and I so hold.
Conclusion
The application to extend time is competent.
The Court will list the matter for further submissions about whether the discretion to extend time should be exercised.
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