Jeffers v The Queen

[1993] HCATrans 39

~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B40 of 1992

B e t w e e n -

DARREN CHRISTOPHER JEFFERS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DEANE J
DAWSON J

TOOHEY J

Jeffers 1 4/3/93

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 4 MARCH 1993, AT 11.03 AM

Copyright in the High Court of Australia

MR P.G. NASE:  May it please the Court, I appear for the

applicant. (instructed by Boe & Company)

MR M.J. BYRNE:  May it please the Court, I appear with my

learned friend, MR T.A. FULLER, for the respondent.

(instructed by D. Field, Solicitor to Director of

Public Prosecutions (Queensland))

DEANE J: Yes, Mr Nase.

MR NASE:  The special leave point in this case is two-fold.

Firstly, special leave is sought to correct the

individual injustice suffered by the applicant from
the refusal by the Court of Appeal to grant him an

extension of time within which to appeal.

DEANE J:  Mr Nase, the facts are in a bit of a mess, are

they not?

MR NASE:  Yes, in fact, the facts before the Court of Appeal

were confused.

DEANE J:  I mean, they are in a little bit of a mess now

when there is affidavit evidence put for the first

time before this Court creating a different factual

position as to service to that which was before the

Court of Appeal.

MR NASE: Although all the elements, when one looks at

Mr Boe's affidavit, were there to be discovered

within his affidavit.

DEANE J:  It was before the Court of Appeal that the Crown's

notice of appeal served on your client, apart from

the first page, was the wrong one?

MR NASE:  No, it was not, Your Honour.

DEANE J: Well, what do we do about that unless the Crown

admits it?

MR NASE: Well, it may not be necessary, and in the way I

had proposed to argue the application it is not

necessary, in my submission, for the Court to
resolve that question.

The second special leave point on which the applicant asks the Court to consider the

application is in order to vindicate the rule that

when considering applications for extensions of

time courts of criminal appeal should have regard

to the merits of the appeal in the exercise of a

discretionary judgment.

If the Court is familiar with the material

that was before the Court of Criminal Appeal - - -

Jeffers 2 4/3/93

DEANE J:  We are familiar with the material the parties have

placed before us. That does not disclose whether

or not there was anything additional before the

Court of Appeal.

MR NASE:  No, the material that was before the Court of

Appeal is the material contained in the document headed Appeal Record. That is in the application book. That was the affidavit by Mr Boe that is

contained in the application book. One does note

that there is some confusion in Mr Boe's affidavit

of 31 August in that in paragraph 9 - - -

DEANE J:  If we disregard the mess-up or suggested mess-up

of what was served, is the position as you now put

it this, that your client was served on the last

day allowed for service and gave instructions to

appeal some four days after that, those four days

including a weekend?

MR NASE:  It is not clear from Mr Boe's affidavit that

instructions were given as late as four days.	On
Mr Boe's affidavit at page 5 of the application
book, at paragraph 9 he says:

On or about 18 June 1992 I received a further

telephone call from the Applicant wherein he indicated that the Crown had that day served

an appeal against sentence upon him. I cannot

be certain of the exact day but I do recall

that at the time of my discussion with the

Applicant that it was outside the time for the

lodgment of any appeal.

One can see that that paragraph is a very confused paragraph if one knows that 18 June is the last day

upon which service was required.

DEANE J:  Then we can take it, can we, that what I put to

you as the worst scenario, reading the solicitor's	evidence, if one reads the applicant's affidavit	and disregards the suggested mix-up of pages, he
gave a form of instruction that he wanted to appeal on the day following?

MR NASE:  Yes.

DEANE J: Well, I do not think we need worry about the one

or the four days.

MR NASE:  No, indeed, the four days rather operates perhaps

unfairly to the applicant's disadvantage.

TOOHEY J: Could I just clarify one matter with you,

Mr Nase. Does the question of the Crown's appeal

against sentence being within time or not within

Jeffers 3 4/3/93

time turn solely upon the form of the document that

was served upon your client?

MR NASE:  I should indicate to the Court that there is a

controversy as to whether the Crown, in order to

make its appeal from sentence, is required both to

file a notice of appeal within time and to serve
the notice on the intended respondent within time.

The Crown takes the view that it is required only

to file the notice of appeal within time, and that

question is presently awaiting decision of the

Court of Appeal here in Queensland.

TOOHEY J: But if the Crown is right in that view, then its

appeal was within time, was it not?

MR NASE:  Yes, in the sense that the notice was filed in the

registry within time and there was apparently an attempt to serve a document on the respondent on the last day.

DAWSON J: Did the Attorney-General's appeal come on at the

same time as the application for extension of time

by the applicant?

MR NASE:	Yes, it did, Your Honour, and when that was -
DAWSON J:	So that it was before the court at the time?
MR NASE:	Both matters were before the court, although the

attention of the court was not drawn to the
circumstance that the attempted service on the

applicant on the last day may not have been

effective.

DEANE J:  And did the Crown oppose the application for leave

to appeal out of time?

MR NASE: Yes, it did.

DAWSON J:  You are only asking, Mr Nase, if you are

successful, for the matter to be sent back for the

substance of the appeal to be heard?

MR NASE:  Yes.

DEANE J: That is if you are ultimately successful.

MR NASE: Yes, Your Honour. May I take the Court to the

judgment of Justice Davies, which commences at

page 8 of the application book. On the first page,

His Honour summarized the material that was before the Court of Appeal - - -

DEANE J:  You can take it we have read the judgment.

Jeffers 4 4/3/93

MR NASE:  May I take Your Honour more directly to

His Honour's reasoning. Towards the bottom of

page 9, that is the third page of the judgment,

His Honour, after summarizing the material and the

conflicting argument, continued then to express the

view that in the exercise of the court's

discretionary judgment in that case, the court

would not consider whether the appeal from
conviction possessed any merits, and emphasis was
placed on the reasoning expressed from line 58 on

page 9, the words:

the applicant in this case deliberately chose

not to appeal and decided to appeal only after
he had received the Attorney's appeal against

sentence.

And then if one moves down to about line 30 on

page 10, His Honour then characterized the

application before the court as:

This is a case where the applicant, having

made his election, based upon the risks of a

greater sentence upon conviction after

re-trial, should not be given an opportunity

to make a decision outside time only after he

has received the notice of appeal against

sentence by the Attorney.

The submissions that I wish to make on that

reasoning are these: the material before the Court of Appeal was merely that the applicant within time

had decided not to appeal. There was not an

election that possessed any binding legal character

on his part.	He was, at any time, free to change
his mind and instructions.	Nor was it an election

not to appeal even in the event of an appeal from

sentence by the Attorney. It was an election only

in the limited sense that he had, for reasons that

were unstated, decided not to appeal at that time,

and the time limited for appeal had passed or was

about to pass when the Attorney's appeal was
brought to his notice. Naturally, he decided to

appeal at that point.

On one view of the material before the Court

of Appeal he formed his decision to appeal within

time, that is, if there was service upon him on the

last day limited for appeal.

In stepping back and looking at the matter,

one can see that he should have gone about the

exercise in a different way, that he himself should

have lodged an appeal from conviction on the last

or second-last day and then, if the Attorney had

not appealed, later abandoned the appeal.

Jeffers 5 4/3/93

DEANE J: What, and served the Crown after the court office

closed on that day?

MR NASE:  Or if he wished not to proceed with the appeal

from conviction, in the absence of no appeal from

sentence by the Crown, to simply file a notice of

abandonment.

DEANE J:  Mr Nase, can you remind me, on the Crown's case of

what happened, what time does the Crown say your

client was served by fax?

MR NASE:	The Crown was silent before the Court of appeal.
DEANE J:	No, I was talking about some material from the

Crown that is before us.

MR NASE: There is, in fact, a letter that we placed before,

and it is Exhibit B to Mr Boe's affidavit. It
indicates only that on 18 June copies of the

Attorney's notice of appeal were faxed, if I can

read:

to the Brisbane Correctional Centre with a

request that they be served on the prisoner -

on the applicant. And then apparently there was

some problem because on 7 July at 11.35 am one sees

from the final paragraph in that letter there was

proper service on the applicant.

'·

TOOHEY J:  Mr Nase, the orders sought by the notice of

appeal are special leave to appeal and the judgment

be set aside, the conviction quashed and the

verdict of acquittal entered - that is a bit

optimistic, is it not?

MR NASE:  Yes, of course. It is understood that the appeal

is from the refusal to grant an extension of time.

TOOHEY J: Yes, but even the extension of time itself raises

a question. In other words, it would have been

open to the Court of Criminal Appeal, I take it, to

have refused an extension of time if, having

considered relevant material, that court formed the

view that an appeal had no prospect of success.

MR NASE: 

Yes, one can accept that.

TOOHEY J: 

So in other words, it would not be appropriate

for this Court, if it was otherwise minded to
accept your submissions, to order that an extension
of time be granted, or would it?

MR NASE: 

Unless the Court were of the view that almost as a

matter of course the extension of time should be

Jeffers 6 4/3/93

granted, but technically the point that Your Honour

takes is, I suppose, a correct one.

DAWSON J:  So when it comes down to tin tacks, you are

asking us to grant special leave - well, that is

all you are asking at the moment.

MR NASE:  Yes.

DAWSON J: But ultimately what you would be asking would be

for the appeal to be allowed and the matter to be

remitted to the Court of Appeal in Queensland.

MR NASE:  Yes, that is so, Your Honour.

DEANE J: Unless this Court thought it was such a clear case

for extension of time that the order extending time

should be made.

MR NASE:  Yes, to save time in the long run. And I would,

of course, ask the Court to do that in the fullness

of time.

TOOHEY J: Because even if we did not do that and it went

back, at least without some expression of view from

this Court, the applicant is really in the same

position as he was when the matter first came

before the Court of Criminal Appeal.

MR NASE:  Although he would be in the added advantage that

he could now file further material, which would

presumably improve his position somewhat. I can

make these other submissions: the normal approach

by Courts of Criminal Appeal to applications for

extension of time within which to appeal, in cases

where, in the opinion of the court there is no

sufficient explanation of the delay in appealing,

is to nevertheless grant leave if the merits of the

appeal suggest that leave should be given in the

overall interests of justice. And I could refer

the Court to cases where that approach has been

adopted, where the court has looked to see whether

there is any substance in the grounds of appeal.

In this case, the Court of Appeal adopted the

opposite approach. It expressly declined to

examine the merits of the appeal and this, it is

submitted, is a point of such importance as to warrant the grant of special leave. Those, in

rather short form, are the submissions that I make.

DEANE J: Thank you, Mr Nase. Yes, Mr Byrne.

DAWSON J:	The Crown opposes this application, I take it?
MR BYRNE:	Yes, it does.  It opposes it simply on this

basis, that the general principles submitted by my

Jeffers 4/3/93

learned friend, Mr Nase, are accepted. I think

they are accepted in the form of the Crown written

outline before this honourable Court. The

submission on behalf of the Crown is that this case

is a rather unusual one in that there were no

reasons placed before the Court of Appeal to

explain either the delay or an apprehension of

miscarriage of justice by the applicant, except the

commencement of the Attorney's appeal. It was in

those unusual circumstances, as the Court of Appeal

recognized - - -

DEANE J:  But why does one need any material of that? I

mean, it is an obvious case where somebody is told

that he has a reasonable appeal against his

conviction but if he does so he will subject

himself to the double jeopardy of a Crown appeal
against sentence and, for any of a vast variety of
possible reasons, he decides that he will not do

that and then, on the very last day, the Crown

appeals against the sentence, serves him in prison,

where he has not got access to a solicitor, and

then opposes an application for extension of time

so he can lodge his counter appeal against his

conviction. What further facts are needed?

MR BYRNE:  Those facts, of course, are accepted,

Your Honour.

DEANE J: Then, on what basis does the Crown, having lodged

the appeal on the very last day and served a man in

prison where he has not got ready access to a

solicitor, oppose an extension of time, so he can

raise matters which he wishes to raise in relation

to the propriety of his conviction.

MR BYRNE:  On behalf of the Crown I can submit little more

than what was accepted by the Court of Appeal that,

in the circumstances where there is a discretion to

be exercised, the court is entitled to take into

account all of the circumstances, and the court

here recognized that a large and important part of

those circumstances - - -

DEANE J: Surely, one of the circumstances is the prospects

of success in the appeal.

MR BYRNE:  And that was recognized as a matter which is

normally taken into account by courts of appeal in

these circumstances.

DEANE J: But completely disregarded in this case?

MR BYRNE: In this particular case, yes, Your Honour.

TOOHEY J: Did that aspect of it ever get off the ground,

Mr Byrne, I mean was there any discussion before

Jeffers 8 4/3/93

the Court of Criminal Appeal, either on the
applicant's part of the merits of the appeal or on

the Crown's part of the demerits of an appeal?

MR BYRNE:  It never got past the written submissions by both

my learned friend and myself which I understand

Your Honours have before you. There was no oral

argument advanced further to those matters.

TOOHEY J:  I am just not entirely familiar with the

procedure in that situation. Do you mean -

MR BYRNE: If I can briefly explain, Your Honour, the

appeal, or both the appeal by the Attorney and the

application for extension of time came before the

court at the same time. The Court of Appeal had

before it the full record, that is a transcript of
the proceedings of the trial in the district court;

it also had before it the written outlines of

submissions on both the Attorney's appeal against

sentence and the applicant's appeal against

conviction if the extension of time were to be

granted. The court heard, firstly, the extension

of time, refused leave - - -

TOOHEY J:  I am sorry, when you say it heard it, I thought

you said there were no oral submissions.

MR BYRNE:  On the merits, no, Your Honour.

TOOHEY J: I am sorry, yes. There were oral submissions

made as to why, in the particular circumstances,

there should be an extension of time but not going

to the merits or otherwise of the appeal if an

extension were granted?

MR BYRNE: That is correct, and the reasoning of the court

is fairly apparent in the short judgment. The

court refused the application for extension and

then went on to hear the appeal by the Attorney.

There was no point taken in the Court of Appeal

that that appeal may have been out of time. Unless

there is something further - - -

DAWSON J:  I am not sure what reason you advance for the

upholding of the Court of Appeal's decision.

MR BYRNE: 

The reason is simply this, Your Honour, that the

case was an unusual one, and the circumstances of
the case, that is a considered decision was made on

legal advice not to appeal, then the

subsequent - - -

DAWSON J: In circumstances which subsequently changed.

MR BYRNE:  And it is submitted that that change of

circumstances, namely the Attorney's appeal, was

Jeffers 9 4/3/93

not something which would normally give rise to the

exercise of discretion to allow someone to apply

out of time to appeal against conviction when he

had decided within time not to appeal. That is as

high as it can be put.

TOOHEY J:  Mr Byrne, if the matter were to go back, on what

basis do you suggest, having regard to some of the

questions that were asked of Mr Nase.

MR BYRNE:  I would respectively submit the approach

suggested by His Honour Justice Dawson would be the

correct one, that the matter simply be remitted to

the Court of Appeal so that they could then
consider the application for extension with the
benefit of Your Honours' remarks. That would leave
the option to the Court of Appeal to grant the
extension, having considered the merits, or to
refuse the extension if, having considered the

merits, they were not of opinion that the matter

was sufficiently arguable.

TOOHEY J: Yes.

DEANE J: Thank you, Mr Byrne. The Court will take a short

adjournment at this stage and will then indicate

whether we wish to hear Mr Nase in reply.

AT 11.28 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.34 AM:

DEANE J: In this case there will be a grant of special

leave to appeal. Mr Byrne, the grant of special

leave to appeal is on the basis that the question
for this Court will be whether, in all the
circumstances of the case, the Court of Appeal
should have granted an extension of time for
appealing unless it considered that an appeal would

enjoy no real prospect of success. As I understand

it, counsel are agreed that that would be the

question if this Court were not going to get

involved in the merits of the substantive appeal.

MR BYRNE:	Yes, Your Honour.
DEANE J:	In the context where that is the question which

would be involved in an appeal, the Court is

naturally conscious of questions of time and money.

What extra submissions would you have to make

Jeffers 10 4/3/93

directed to that narrow question I have stated, and

what would be your attitude to the Court as

presently constituted dealing with the appeal?

MR BYRNE: Frankly, Your Honour, I do not believe I could

make further substantive submissions in respect to

that question. There is no objection by the Crown

with this Court dealing with the matter now.

DEANE J:  Which means it is an unusual situation for the

Court of three to deal with an opposed appeal from

a Court of Appeal or Court of Criminal Appeal, but

the Crown has no objection, or would you urge us to

take that course?

MR BYRNE:  I would in fact urge Your Honours to take that

course in the circumstances.

DEANE J: Thank you. Mr Nase, you have heard what I have

said to Mr Byrne.

MR NASE:	Yes, I have, Your Honour.
DEANE J:	What is your attitude on that?
MR NASE:	I am content for this Court to deal with the

substantive -

DEANE J: Is "content" the right word, or would you urge us

to, because we do not want to impose anything on

counsel.

MR NASE:  No, I urge Your Honours to do that.

DEANE J: Is there anything in addition to your written

submissions and what you have said that you would

need to put in support of an appeal?

MR NASE:  No, but can I make it clear that what the

applicant asks the Court to do is to quash the

order refusing a grant of leave to appeal out of

time and to take the step of granting leave in the

circumstances of the case.

DEANE J:  I follow that, but I think you might be forewarned

that if the appeal were to succeed, a possible or

perhaps likely order would be that it would go back

to the Court of Appeal to deal with the matter on
the basis that the application should succeed

unless it considers that the appeal would have no

real prospect of success.

DAWSON J:  You would put that as an alternative less

preferred submission, would you not?

Jeffers	11	4/3/93
MR NASE:	Yes.	I do not know whether the Court has had an

opportunity to look at the outline of argument

prepared for the substantive appeal.

DEANE J: Yes, but can you appreciate - - -

MR NASE:	Yes, I do.
DEANE J:	And from the point of view of your client there is

no real difference because you are going to have to

address the substantive merits before the Court of

Appeal in any event.

MR NASE:	Yes.
DEANE J:	What we are concerned about is, it does not seem

to us to be desirable that we address the

substantive merits at this stage if that course can

be avoided.

MR NASE:  I understand the attitude of the Court. I urge

the Court to deal with the matter, but I do urge

the Court to take the step of granting leave itself

and remitting the substantive appeal back to the

Court of Appeal to be determined.

DAWSON J: If you are unsuccessful in that submission then

what would you be submitting?

MR NASE:  Then I would be submitting that the Court follow

the second proposition that was put to me.	But
that avoids the applicant facing the Court of

Appeal on an application for an extension of time

and then later facing the Court of Appeal, perhaps.

TOOHEY J: But the Court would deal with the two together,

surely?

MR NASE: Yes, I suppose it would deal with the two

together.

TOOHEY J: Well, it would be very odd if it did not.
DEANE J:	In the event that you succeed on the appeal and

the Court follows the second course, you would ask
us to indicate that we would think that the
application for leave and the substantive appeal if

leave is granted should be dealt with together.

MR NASE:  Yes, I do, although as Your Honour Justice Toohey

points out, that may not be necessary.

TOOHEY J: Because the only matter before the Court of

Criminal Appeal would be, in effect, the merits of

the appeal.

Jeffers 12 4/3/93

MR NASE:  Yes. Although on an application for an extension

of time the Court may look at the merits, as it

were, in short form rather than receive a more

detailed argument on the merits. So there is that

advantage to the applicant in the Court itself
allowing him, or granting him the extension of

time.

DEANE J:  Thank you, Mr Nase. Mr Byrne, is there anything

you want to say arising out of that discussion?

MR BYRNE:	No, thank you, Your Honour.
DEANE J: Very well.	The Court as presently constituted

embarks upon the hearing of the appeal and reserves

its decision.

AT 11.41 AM THE MATTER WAS ADJOURNED SINE DIE

Jeffers 13 4/3/93