Gould v R

Case [2023] NSWCCA 103


Court of Criminal Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: Gould v R [2023] NSWCCA 103
Hearing dates: 22–24 November 2022
Date of orders: 10 May 2023
Decision date: 10 May 2023
Before: Bell CJ at [1];
Rothman J at [148];
Garling J at [164]
Decision:

An extension of time within which to file the application for leave to appeal is refused.

Catchwords:

APPEALS – leave to appeal – principles governing – second application for leave to appeal – where applicant had previously been refused leave to appeal against conviction in the Court of Criminal Appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) after a hearing on the merits – where applicant sought to bring a second application for leave to appeal, notwithstanding that there had been no change in circumstances other than appointment of new lawyers – whether prior refusal of leave to appeal created a jurisdictional bar precluding the Court of Criminal Appeal from entertaining a second application for leave to appeal – whether extension of time should be granted to bring the second application for leave to appeal

APPEALS – procedure – time limits – extension of time – relevant considerations – finality – second application for leave to appeal – where applicant had previously been refused leave to appeal against conviction in the Court of Criminal Appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) – where applicant sought to bring a second application for leave to appeal, notwithstanding that there had been no material change in circumstances – whether extension of time should be granted to bring the second application for leave to appeal – prior refusal of leave to appeal a powerful factor weighing against the grant of leave

CRIME – appeals – appeal against conviction – extension of time in which to appeal – relevant considerations – finality – second application for leave to appeal – where applicant had previously been refused leave to appeal against conviction in the Court of Criminal Appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) – where applicant sought to bring a second application for leave to appeal, notwithstanding that there had been no change in circumstances – whether extension of time should be granted to bring the second application for leave to appeal – prior refusal of leave to appeal a powerful factor weighing against the grant of leave

CRIME – appeals – appeal against conviction – incompetence of counsel – where applicant had previously been refused leave to appeal against conviction in the Court of Criminal Appeal after a hearing on the merits – where applicant sought to bring a second application for leave to appeal – applicant alleged (among other things) that counsel were incompetent both at the trial and the first application for leave to appeal – allegations of incompetence of counsel were not raised in grounds of appeal or written…

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Gould v R [2023] NSWCCA 103
Case
[2023] NSWCCA 103
Decision Date

CaseChat Overview and Summary

Gould appealed against his conviction in the Court of Criminal Appeal, seeking leave to appeal. The Court of Criminal Appeal had previously denied his application for leave to appeal. Gould now sought leave for a second application, despite no changes in circumstances apart from the appointment of new lawyers. The legal issues included whether the prior refusal of leave to appeal created a jurisdictional bar and whether an extension of time should be granted for the second application.

The court examined whether the prior refusal of leave to appeal created a jurisdictional bar that prevented the Court of Criminal Appeal from entertaining a second application. The court considered the principle of finality and the importance of allowing appeals to be determined definitively. The court noted that the prior refusal of leave to appeal was a powerful factor against granting leave for the second application. Additionally, the court considered whether an extension of time should be granted for the second application, weighing factors such as the absence of a material change in circumstances and the need to avoid unnecessary prolongation of proceedings.

The court held that the prior refusal of leave to appeal did not create a jurisdictional bar but significantly influenced the decision on the second application. The court found no material change in circumstances, and the allegations of incompetence of counsel were not substantiated. The court concluded that an extension of time should not be granted, given the importance of finality in criminal appeals. Therefore, the application for leave to appeal was dismissed, and the extension of time for the second application was refused.

The court ordered that the appeal against the conviction be dismissed and that the application for leave to appeal be dismissed. The court also ordered that the application for an extension of time for the second application be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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