Hyde v The Queen
[2000] TASSC 102
•27 July 2000
[2000] TASSC 102
CITATION: Hyde v R [2000] TASSC 102
PARTIES: HYDE, Dwayne Andrew
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 136/1999
DELIVERED ON: 27 July 2000
DELIVERED AT: Hobart
HEARING DATE: 29 May 2000
JUDGMENT OF: Cox CJ, Crawford J, Slicer J
CATCHWORDS:
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Practice after criminal appeal legislation - Miscellaneous matters - Tasmania - Procedure - Whether Registrar obliged to prepare appeal books or may require appellant to do so.
Criminal Code (Tas), s408.
Aust Dig Criminal Law [1059]
REPRESENTATION:
Counsel:
Appellant: D F M Zeeman
Respondent: T J Ellis
Solicitors:
Appellant: G A Richardson
Respondent: Director of Public Prosecutions
Judgment Number: [2000] TASSC 102
Number of paragraphs: 26
Serial No 102/2000
File No CCA 136/1999
DWAYNE ANDREW HYDE v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
CRAWFORD J
SLICER J
27 July 2000
Orders of the Court
Application for Order directed to the Registrar refused.
Serial No 102/2000
File No CCA 136/1999
DWAYNE ANDREW HYDE v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
27 July 2000
The appellant has filed an appeal against a sentence of seven years' imprisonment imposed upon him in December 1999 on one count of attempted armed robbery and one count of committing an unlawful act intended to cause bodily harm. No appeal book has been prepared, but the matter was placed administratively in the Term List for mention. The Court is being asked to order the Registrar, pursuant to the Rules of Court under the Criminal Code Act 1924 ("the Rules"), O7, r13, to prepare an appeal book. That Rule provides:
"13The performance of any duty imposed upon any person under the Code or these rules may be enforced by order of the Court of Appeal [sic]."
The appellant, whose submissions in this regard are supported by the Director of Public Prosecutions on behalf of the respondent, submits that by virtue of the Criminal Code, s408, the Registrar is under a duty to ensure that the appeal book is prepared within the Registry and that a Practice Direction which purports to make the appellant in any appeal responsible for the preparation of the appeal book is ultra vires. The Practice Direction purports to impose obligations on appellants to file copies of the appeal book for the use of the judges, together with a certified copy for the Court file and to deliver a copy of the appeal book to every other party. Dispensation from these requirements, if undue hardship is demonstrated, is provided for in the Practice Direction and the Registrar, in those circumstances, is required to prepare the appeal book.
When originally enacted, s408 was in these terms:
"408 Judge's notes and report to be furnished ¾ (1) The judge of the court of trial shall, in case of any appeal or application for leave to appeal, furnish to the Registrar his notes of the trial, and also a report giving his opinion upon the case or upon any point arising in the case.
(2) Where shorthand notes have been taken, a transcript of such notes may be furnished in lieu of, or in addition to, such judge's notes.
(3) The Registrar shall, if the appellant makes application for the same, supply him with a copy of any such notes or transcript."
By Act No 38 of 1963, the following substitution was made:
"9 Section four hundred and eight of the Criminal Code is repealed and the following section is substituted therefor: ¾
'408 ¾ (1) On receiving a notice of appeal or of application for leave to appeal, the Registrar shall cause an appeal book to be prepared for the use of the Court.
'(2) For that purpose the Registrar may, if it will assist him so to do, appoint a time to settle the contents of the appeal book and give notice thereof to the Attorney-General and to the other party, or his attorney, requiring him then to attend.
'(3) For the purposes of this section the judge of the court of trial shall, if so requested by the Registrar, furnish him with his notes of the trial and also a report giving his opinion on the case or upon any point arising in the case.'"
In 1973, by Act No 30 of that year, the word "shall" was deleted from subs(1) and the word "may" substituted therefor. The last changes were made by Act No 13 of 1990, so that the section now reads as follows:
"408 ¾ (1) On receiving a notice of appeal or of application for leave to appeal, the Registrar may cause an appeal book to be prepared for the use of the Court.
(2) For the purpose of causing an appeal book to be prepared, the Registrar -
(a) may require -
(i)the parties to the appeal or their representatives to submit to the Registrar a memorandum setting out the proposed contents of the appeal book as agreed by them; or
(ii)each party to the appeal or the representative of each party to submit to the Registrar a memorandum setting out the proposed contents of the appeal book; and
(b) may consult the parties or their representatives by telephone, or in writing or by requiring the personal attendance of the parties or their representatives.
(2A) The Registrar shall settle the appeal book when satisfied that the parties or their representatives have been given a sufficient opportunity to be heard.
(3) For the purposes of this section the judge of the court of trial shall, if so requested by the Registrar, furnish him with his notes of the trial and also a report giving his opinion on the case or upon any point arising in the case."
Clearly, the substitution of the word "may" for "shall" in subs(1) makes the preparation of appeal books permissive in the sense that the Registrar is given a discretion to determine whether or not an appeal book is necessary at all in any given appeal. Some appeals may not require the preparation of documentation in the form of an appeal book. However, undoubtedly many will and where the Registrar determines that an appeal book is necessary, the section gives him power to require the parties to the appeal to assist in the settling of its contents. The question is whether, having determined to cause an appeal book to be prepared for the use of the Court, he may achieve this result by requiring the appellant (which could be the Crown) to undertake that task.
In interpreting the section, regard must be had to some other sections of the Code. Further duties are laid on the Registrar by s416, which relevantly provides:
"416 (1) The Registrar shall take all necessary steps for obtaining a hearing of every appeal or application, notice of which is given to him, and shall obtain and lay before the Court in proper form all documents, exhibits, and other things relating to the proceedings in the court of trial which appear necessary for the proper determination of the appeal or application.
(2) ...
(3) The Registrar shall furnish the necessary forms and instructions in relation to notices of appeal or notices of application to any person who demands the same, and to officers of courts, governors of gaols, and to such other officers or persons as he thinks fit, and the governor of every gaol shall cause such forms and instructions to be placed at the disposal of prisoners desiring to appeal or to make any application, and shall cause any such notice given by a prisoner in his custody to be forwarded on behalf of the prisoner to the Registrar."
Section 417 relates to the custody of documents and exhibits and provides:
"417 Any documents, exhibits, or other things connected with any proceedings before a court of trial, in respect of which any person is entitled, or may be authorized, to appeal, shall be kept in the custody of the court of trial in accordance with the rules to be made for that purpose, for such time as may be provided by the rules, and subject to such powers as may be given by the rules for the conditional release of any such documents, exhibits, or things from that custody."
Section 413 imposes obligations on the Attorney-General or counsel on his behalf to appear on every appeal and contains concomitant obligations on the Court to furnish him with the necessary materials to fulfil his duties. It provides:
"413 (1) The Attorney-General, or counsel on his behalf, shall appear for the Crown on every appeal to the Court under this chapter.
(2) Provision shall be made by the rules under the Code for the transmission to the Attorney-General of all such documents, exhibits, and other things connected with the proceedings as he may require for the purpose of his duties under this section."
In many cases an appellant has available to him copies of all the materials normally included in an appeal book, such as the indictment, documentary exhibits, transcripts of the evidence and judge's memorandum (if any) to the jury. It has not been the practice of the Court to have summings up routinely transcribed and in the case of pleas of guilty, the oral statement of facts by the prosecutor and the plea in mitigation are often not transcribed either. Nevertheless, the tapes thereof are "things connected with any proceedings before a court of trial" within the meaning of s417 and "things connected with the proceedings" within the meaning of s413 and hence must be kept in the Court's custody and, if necessary, copies or transcripts thereof transmitted to the Attorney-General. The obligation to supply this material to the Attorney-General pursuant to s413 does not, however, require the Registrar to do so in the form of an appeal book prepared by him or under his direction. Since the 1963 amendments to s408, there is no express statutory obligation on the Registrar to provide copies of the judge's notes or any transcript to an appellant other than the Attorney-General, but for practical purposes their supply could be seen as a necessary part of the process of causing an appeal book to be prepared. There is no suggestion in this case that the Registrar has refused to make such material available so as to enable the appellant to assemble the appeal book as required by the Practice Direction.
I agree with Crawford and Slicer JJ, whose Reasons for Judgment I have had the opportunity to peruse, that the Court is entitled to regulate the practice to be followed with respect to an appeal before it and that the method set out in the Practice Direction does not offend any statutory provision. It is inappropriate to make the order sought by the appellant.
File No CCA 136/1999
DWAYNE ANDREW HYDE v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
27 July 2000
The preliminary issue for determination concerns whether the appellant or the Registrar may be compelled to prepare appeal books for the use of the Court. Neither wishes to do so.
The Criminal Code, s408(1), provides that the Registrar "may cause an appeal book to be prepared for the use of the Court". Although so empowered, the Registrar has no statutory duty to prepare the appeal book. That is particularly clear because of the amendment which was made to the sub-section by Act No 30 of 1973, when "may" replaced "shall". Section 408(1) may be contrasted with the provisions of s416 which impose duties on the Registrar to take certain steps.
The Rules of Court under the Criminal Code Act 1924, OVII, r13, provides that "the performance of any duty imposed upon any person under the Code or these rules may be enforced by order of the Court of Appeal". (Presumably it was intended to refer to the Court of Criminal Appeal.) As s408(1) merely empowers the Registrar to cause an appeal book to be prepared, but imposes no duty on him to do so, OVII, r13, does not authorise the Court to order him to exercise his power.
Conscious of the Registrar's lack of resources to prepare an appeal book, save in exceptional cases, the Chief Justice, with the agreement of the other judges, caused a Practice Direction to be published on 28 April 1997. The Practice Direction requires the appellant to prepare the appeal book. However, cl 11 provides that the Registrar will prepare the appeal book if he is satisfied that it will cause undue hardship for the appellant to prepare it. An appellant aggrieved by the Registrar's decision to refuse to prepare the appeal book may apply to a judge to review that decision.
I am not persuaded that the Practice Direction is ultra vires s408(1). If the Registrar determines that he will cause an appeal book to be prepared, pursuant to his power to do so under that subsection, he may do so. The Practice Direction does not purport to prevent him from doing so. However, in a situation where he determines not to exercise that power, the Court is entitled to insist on compliance with the Practice Direction. The Court is in any event entitled to regulate the practice to be followed with respect to an appeal before it, provided of course that it does not seek to offend the provisions of any legislation, statutory or otherwise.
The appellant has not sought to argue that he will be caused undue hardship if required to prepare the appeal book. I conclude that there is no reason why the Court should not require him to do so, in accordance with the usual practice.
File No CCA 136/1999
DWAYNE ANDREW HYDE v THE QUEEN
REASONS FOR JUDGMENT CRIMINAL COURT OF APPEAL
SLICER J
27 July 2000
The appellant has appealed against sentence imposed following his conviction of the crimes of attempted armed robbery and committing an unlawful act intended to cause bodily harm, contrary to the Criminal Code ("the Code"), ss240, 342 and 170.
When the appeal came before the court for hearing his counsel applied for an adjournment to enable an appeal book to be prepared. The issue raised by the application is whether or not it is incumbent on the party bringing the appeal to prepare the relevant material in a suitable form or whether that responsibility remains with the court. The respondent joins with the appellant in contending that the provisions of the Code, s408 require any appeal book to be prepared by the Registrar. The initial approach taken by the parties was that the Registrar had failed to apply the provisions of the Code, s408 in that having determined an appeal book to be necessary, he failed to give proper effect to the statutory requirements.
The Code, s408 provides:
"(1) On receiving a notice of appeal or of application for leave to appeal, the Registrar may cause an appeal book to be prepared for the use of the Court.
(2) For the purpose of causing an appeal book to be prepared, the Registrar ¾
(a) may require ¾
(i)the parties to the appeal or their representatives to submit to the Registrar a memorandum setting out the proposed contents of the appeal book as agreed by them; or
(ii)each party to the appeal or the representative of each party to submit to the Registrar a memorandum setting out the proposed contents of the appeal book; and
(b)may consult the parties or their representatives by telephone, or in writing or by requiring the personal attendance of the parties or their representatives.
(2A) The Registrar shall settle the appeal book when satisfied that the parties or their representatives have been given a sufficient opportunity to be heard.
(3) For the purposes of this section the judge of the court of trial shall, if so requested by the Registrar, furnish him with his notes of the trial and also a report giving his opinion on the case or upon any point arising in the case."
The operative words are "may cause an appeal book to be prepared". Section 408 sets out procedures which result in the settling of the contents of an appeal book. Subsection (2) provides for discretionary power in the identification of the contents of any appeal book and the consultation with the parties as to the contents. Subsection 2A requires the Registrar to afford those parties an opportunity "to be heard" in relation to the contents of that document. The section is silent in relation to the responsibility for the completion, copying and presentation of the appeal book when settled. Whilst there are occasions where the use of the word "may" is to be construed as being mandatory (Barrenger v Coward [1965] Tas SR 245; Ward v Williams (1954 - 1955) 92 CLR 496) the addition of the word "shall" in subs(2A) and the replacement of the word "shall" by "may" in subs(1) by Act 30 of 1973 gives meaning to the earlier use of "may". The Registrar is required to afford the parties an opportunity to be heard if he decides that an appeal book should be prepared. If he decides that an appeal book is warranted, the section does not require him to compile it or to furnish copies.
The general duty of the Registrar is imposed by s416, which states:
"416 ¾ (1) The Registrar shall take all necessary steps for obtaining a hearing of every appeal or application, notice of which is given to him, and shall obtain and lay before the Court in proper form all documents, exhibits, and other things relating to the proceedings in the court of trial which appear necessary for the proper determination of the appeal or application.
(2) ...
(3) The Registrar shall furnish the necessary forms and instructions in relation to notices of appeal or notices of application to any person who demands the same, and to officers of courts, governors of gaols, and to such other officers or persons as he thinks fit, and the governor of every gaol shall cause such forms and instructions to be placed at the disposal of prisoners desiring to appeal or to make any application, and shall cause any such notice given by a prisoner in his custody to be forwarded on behalf of the prisoner to the Registrar."
which is in terms identical to that provided by the Criminal Code, 1899 (Qld).
An equivalent provision in the Criminal Code (WA), s701, was considered in the case of Armanasco v R (1914) 16 WALR 174 in which Burnside CJ said, at 174:
"This appeal must stand over for a week and in the meantime the proper papers provided for by the Act must be prepared. The registrar must also, under Order 16, rule 2, require the court of petty sessions, the court where the case was tried, to furnish him with a report in writing, giving him an opinion on the case generally, which report must be furnished to the registrar as soon as possible."
However, those comments are in the form of a specific direction given by the court in a particular case and do not establish a legal principle. The Queensland and Western Australian Codes require the Registrar to "obtain and lay before the Court in proper form all documents, exhibits and other things relating to the proceedings in the court of trial which appear necessary for the proper determination of the appeal or application". No provision is contained in the Code, s408, for the provision of copies. In Queensland there is no statutory right for a party to receive a copy of any transcript except upon payment of a fee. (The Criminal Practice Rules, 1900 (Qd), OIX, r36) and any requirement as to the provision of "short hand" notes as stated in s671K has been held in the United Kingdom to be directory only (R v Elliott [1909] 2 Cr App R 171). Even if the contention of the parties is correct, there are no statutory requirements placed on the Registrar to supply the parties with a copy of any appeal book prepared by him.
During the course of argument attention was given to the terms of a practice direction published on 28 April 1997, the terms of which relevantly state:
"…
2 Every appellant must, within seven days of filing either a Notice of Appeal or Notice of Application for Leave to Appeal, deliver to the Registrar a list of contents proposed to be included in the appeal book.
3 Upon the filing of the list the Registrar shall give an appointment for the settlement of the appeal book contents, and every appellant shall forthwith serve a copy of the proposed list of contents and notice of appointment on every other party interested in the appeal.
4 The Registrar shall settle the contents of the appeal book when satisfied that the parties or their representatives have been given a sufficient opportunity to be heard.
…
6 For the purposes of settling the appeal book contents, the Registrar may consult with the trial judge. The trial judge may direct the parties to attend before him for the purpose of settling the contents of the appeal book.
7 The appeal book must be prepared by the appellant in the manner prescribed by O76 rr 19(2A), (4) and (5)(a) and (e) of the Rules of Court unless otherwise determined by the Registrar.
8 The appeal book must contain a certificate by the appellant or his solicitors that each book has been examined and is correct.
9 The contents of the appeal book must be arranged in the following order:-
(a) title page etc.
(b) index;(c)the certificate by the appellant that the appeal book has been examined and is correct;
(d) the Notice of Appeal to the Court of Criminal Appeal;
(e) the indictment;
(f) evidence, oral or by affidavit;
(g) exhibits;
(h) any ruling given during the trial;(i) the summing up by the trial judge;
(j) the trial judge's comments on passing sentence;(k) any other relevant material.
10 An appellant must no later than fourteen days prior to the first day of the Term following the settling of the contents of the appeal book or such other time as the Court or a judge allows:
(a) file in the Registry three copies of the appeal book for the use of the judges of the Court of Criminal Appeal, together with a certified copy of the appeal book for the Court file; and
(b) deliver a copy of the appeal book to every other party.
11 In cases where the Registrar is satisfied it would cause undue hardship for the appellant to prepare the appeal book, the Registrar will prepare the appeal book. An appellant aggrieved by a decision of the Registrar to refuse to prepare the appeal book may apply to a judge to review that decision."
The parties contended that the practice direction was beyond power in that it contradicted the terms of the Code, s408. The argument failed to take into account other statutory provisions. The Criminal Code Act 1924, s12 provides:
"(1) The judges may make Rules of Court prescribing all such matters and things as are required to be prescribed or as may be necessary or desirable for giving effect to the provisions of the Code; and such rules may provide for all matters relating to procedure and practice on appeals to the Court of Criminal Appeal on questions reserved for the consideration and determination of that Court, or referred to that Court, pursuant to Chapter XLII of the Code, and in all proceedings before courts of trial, and all matters incidental thereto respectively."
The requirement that the parties prepare and submit in suitable form copies of pleadings, transcripts and other relevant material is a matter connected with the "procedure and practice on appeals to the Court of Criminal Appeal".
The note set out in Criminal Law of Queensland, Carter, 7th ed, in relation to a comparable power afforded by the Criminal Code Act 1899 (Qd), s10 states:
"Although the rule-making powers contained in this section and in s707 of the Code remain unrepealed, all rules of court made since 1921 have been made under the powers contained in s11 of The Supreme Court Act of 1921."
This unification in procedure was made possible (in part) by the provision of the Queensland Code, s671B, which affords supplementary powers to the court which include:
"… and exercise in relation to the proceedings of the Court any of the powers which may from time to time be exercised by the Supreme Court on appeals or applications in civil matters."
The Code, s409, affords power in identical terms. The Rules of Court (rr668 and 669) relating to the preparation of civil appeals require the appellant to file three copies of the appeal book in the Principal Registry and to serve a copy of that appeal book on each respondent.
The practice direction does not purport to alter the duties of the Registrar in relation to the custody of exhibits (s417) the settling of the contents of any appeal book (s408). The Registrar remains responsible for the production to the court of "any document, exhibit or other thing connected with the proceedings" (s409 (1)(a)) but is not required by statute to prepare copies of such material for the use of each member of the appellate court. The Registrar is not required to furnish the parties with a copy of each document or transcript in the custody of the court in the form of an appeal book. The position advocated by the parties would inhibit the orderly determination of criminal appeals. The production of the original of the transcript, pleadings and documentary exhibits, without copies, would lead to delay or confusion. The converse, namely that the Registrar provide to each party and member of the court is likewise fraught with difficulty. Parties who had lodged an appeal could easily defer any decision to continue with or abandon the appeal until after the production by the Registrar of the appeal book. The number of appeals, together with the volume of material associated with a contemporary trial, require procedural management. Even if the responsibility of the Registrar is confined solely to the presentation of material to the members of an appellate court, the result would remain confusing. Counsel for a party, in referring to a particular document or transcript reference, would be unable to readily identify the location of such material in the possession of each judicial officer. An exercise of power in accordance with the Criminal Code Act, s12 and the Code, s409 as manifested in the practice direction is designed to secure the orderly presentation, hearing and disposition of appeals is not inconsistent with the provisions of the Code, s408, and is a valid exercise of power.
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