(The Honourable President Livesey, the Honourable Justice David and the Honourable Justice Stein)
24 August 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Application for permission to appeal against sentence.
The applicant was found guilty by a jury of the murder of Dr Margaret Jean Tobin at Adelaide on 14 October 2002. The applicant represented himself at trial, on appeal and before the High Court and his appeal against conviction was allowed.
Following a retrial the applicant was again found guilty by a jury of murder. On 5 June 2009 the applicant was sentenced by Duggan J to imprisonment for life, together with a non-parole period of 30 years, commencing on 9 November 2002 when the applicant was taken into custody.
The applicant seeks orders that the sentence be quashed and that a new sentence of life imprisonment with a 20-year non-parole period be substituted. The applicant requires an extension of time in which to bring the appeal, the sentence having been imposed nearly fourteen years ago.
The Court held (dismissing the application to adduce further evidence, the application for an extension of time and the application for permission to appeal sentence):
1.The ground that the applicant was denied procedural fairness insofar as he was not apprised of his legal rights concerning sentencing before Duggan J in 2009 had to be viewed in the context that the applicant had conducted a remarkable amount of litigation without legal representation, and had made detailed, cogent submissions in mitigation of sentence before Vanstone J.
2.The need for finality in the administration of criminal justice is an important consideration which, in the circumstances of this case, weighs heavily against granting the application for an extension of time.
3.Unless an applicant can identify some basis to conclude that there is a real prospect of a miscarriage of justice, for example because his proposed grounds of appeal are meritorious, there is ordinarily a strong public interest against re-opening a sentence which was imposed nearly 14 years ago.
4.The applicant’s proposed grounds of appeal are without merit.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Gassy v The King [2023] SASCA 90
Case
[2023] SASCA 90
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal against sentence brought by the applicant, Gassy, before the Supreme Court of South Australia, Court of Appeal. The appeal was heard by Livesey P, David and Stein JJ.
The primary legal issue before the Court was whether to grant the applicant's applications to lead further evidence and for an extension of time to appeal against sentence. The Court was required to consider the principles governing the admission of fresh evidence on appeal, particularly in the context of a sentence appeal which is by way of rehearing.
The Court reasoned that an appeal against sentence is ordinarily confined to the materials before the sentencing judge, although further evidence may be received if necessary or expedient in the interests of justice. The Court reiterated the established conditions for admitting fresh evidence on appeal: the evidence must not have been obtainable with reasonable diligence for the original hearing, it must probably have an important influence on the result, and it must be apparently credible. The Court found that the applicant's proposed further evidence largely comprised material that was known or available to him before sentence, or touched on matters already submitted. It also noted that events occurring after sentence are generally not relevant unless they cast the known material in a new light or demonstrate the sentencing judge's approach was erroneous. The Court concluded that the applicant's offending warranted a severe sentence and that no basis had been shown to vitiate the sentencing discretion exercised by the trial judge.
Consequently, the Court dismissed the application to receive further evidence, the application for an extension of time, and the application for permission to appeal sentence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
It will be necessary to return to some of these observations when addressing the applicant’s proposed grounds of appeal. Before addressing the applicant’s proposed grounds, it is next convenient to address his applications to lead further evidence and seeking an extension of time.The application to lead further evidence An appeal to this Court against sentence under s 157(1)(a)(iii) of the CPA is by way of rehearing, and ordinarily confined to the materials available to the sentencing court. By s 166(c) of the CPA the court is empowered, if it thinks it necessary or expedient in the interests of justice, to receive further evidence.[39] That power is ancillary to the appellate jurisdiction of the Court of Appeal.[40] [39] Macfarlane v The Queen [2022] SASCA 46, [33]-[38] (Livesey P).[40] R v Kikidis (2012) 112 SASR 148, [24] (Kourakis J, with whom Doyle CJ and Vanstone J agreed). In broad terms the evidence on which the applicant wishes to rely generally comprises material that was both known to the applicant and available before sentence. While some of the material was not available until after sentence was passed, that material largely touched on matters which were the subject of submissions on sentence. The attempt to invoke what has occurred after sentence was passed would not ordinarily be regarded as relevant. The Court of Appeal will not usually intervene on the basis of events occurring after sentence,[41] unless the further evidence demonstrates that the approach of the sentencing judge was erroneous, either because the proposed evidence was not known to the sentencing judge, or because it is capable of putting what was known in a new light.[42] [41] R v O’Shea (1982) 31 SASR 129.[42] R v Smith (1987) 44 SASR 587, 588 (King CJ, with whom Cox and O’Loughlin JJ agreed); R v C (2004) 89 SASR 270, [32] (Doyle CJ, with whom White J agreed). The principles applicable to an application to lead further evidence on appeal have been considered on many occasions.[43] The exercise of the discretion to admit fresh or further evidence must take into account both the public interest in the finality of litigation as well as the prospect that it will have an important bearing on the outcome of the case.[44] [43] See, by way of example only, Athans v The Queen [2022] SASCA 71, [21]-[30] (Livesey P, Doyle and Bleby JJA).[44] R v Dorning (1981) 27 SASR 481, 485 (Walters, Zelling and Williams JJ). It is generally accepted that an applicant seeking to adduce fresh or further evidence will usually satisfy three conditions before that evidence will be received on appeal:[45]1.It must be shown that the evidence could not have been obtained with reasonable diligence for use at the hearing; 2.The evidence, if adduced, would probably have an important influence on the result, though it need not be decisive; and 3.The evidence must be apparently credible.[45] R v Dorning (1981) 27 SASR 481, 485-486 (Walters, Zelling and Williams JJ); R v Smith (1987) 44 SASR 587, 588 (King CJ, with whom Cox and O’Loughlin JJ agreed); Macfarlane v The Queen [2022] SASCA 46, [33]-[38] (Livesey P).
Decision
Reasons for decision
The applicant’s offending called for a severe sentence. There is no merit in the contention that the sentence is manifestly excessive. No basis has been shown to vitiate the exercise of sentencing discretion by Duggan J in this case.[72][72] House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357, [27]; Elias v The Queen (2013) 248 CLR 483.Conclusion The applicant is intelligent and articulate. By 2009 he was well-acquainted with the adversarial nature of the sentencing process and able, if he chose, to lead evidence and make submissions in mitigation of sentence. None of the proposed grounds of appeal has any merit. None of the materials put forward in support of the application demonstrate any possibility of a miscarriage of justice if an extension of time is not granted. Apart from the applicant’s affidavits affirmed on 30 January and 28 April 2023, to the extent that the proposed further evidence was not already before Duggan J, none of it should be received. In the circumstances, there is no utility in granting an extension of time to seek permission to appeal against sentence. The orders of the Court will be:1.The application to receive further evidence is dismissed.2.The application for an extension of time is dismissed.3.The application for permission to appeal sentence is dismissed.