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…
Grounds of appeal
[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
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.