Morgan v R (No 2)
[2013] NSWCCA 80
•18 April 2013
Court of Criminal Appeal
New South Wales
Case Title: Morgan v Regina (No 2) Medium Neutral Citation: [2013] NSWCCA 80 Hearing Date(s): 11 March 2013 Decision Date: 18 April 2013 Before: Beazley P at [1];
Hidden J at [104];
Harrison J at [105]Decision: The application is dismissed.
Catchwords: CRIMINAL LAW - appeal - indictment - "one indictment, one jury" rule.
CRIMINAL LAW - appeal - jurisdiction - indictment containing multiple counts - one appeal from an indictment.
CRIMINAL LAW - appeal - abandonment - whether appeal in respect of certain counts on indictment may be abandoned.Legislation Cited: Criminal Appeal Act 1912
Criminal Appeal Rules
Criminal Procedure Act 1986
Supreme Court Rules 1970Cases Cited: Arnaout v The Queen [2008] NSWCCA 278; 191 A Crim R 149
Burrell v The Queen [2008] HCA 34; 238 CLR 218
Cheatle v The Queen [1993] HCA 44; 177 CLR 541
Crane v Director of Public Prosecutions [1921] 2 AC 299
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
Eastman v R [2008] FCAFC 62; 166 FCR 579
Grierson v R [1938] HCA 45; 60 CLR 431
Matta v The Queen (1995) 126 FLR 127
Morgan v R [2011] NSWCCA 297
Munday v Gill [1930] HCA 20; 44 CLR 38
Napier v State of Western Australia [2008] WASCA 106; 36 WAR 543
R v Bell (1987) 8 NSWLR 311
R v Brain [1999] SASC 358; 74 SASR 92
R v Cartwright (1989) 17 NSWLR 243
R v Edwards [No 2] (1931) SASR 376
R v Grierson (1933) 50 WN (NSW) 71
R v JS [2007] NSWCCA 272; 230 FLR 276
R v Landy [1943] VLR 73
R v Lumley [2009] QCA 172
R v McDonnell (1928) 20 Cr App R 163
R v McGrane [2012] QCA 221
R v Nudd [2007] QCA 40
R v Reardon [2004] NSWCCA 197; 60 NSWLR 454
R v Saxon (1998) 101 A Crim R 71
R v Wickliffe [1986] 1 NZLR 4
Ridgeway v R [1995] HCA 66; 184 CLR 19
Sherkam v Parker [2002] WASCA 179
Swansson v The Queen [2007] NSWCCA 67; 69 NSWLR 406Category: Principal judgment Parties: Raymond George Morgan (Applicant)
Regina (Respondent)Representation - Counsel: Counsel:
P M Strickland SC (Applicant)
J A Girdham SC (Respondent)- Solicitors: Solicitors:
Bannisters Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)File Number(s): CCA 2008/20396 Decision Under Appeal - Court / Tribunal: District Court - Before: Knox DCJ - Date of Decision: 15 December 2009 - Court File Number(s): 08/11/1384 Publication Restriction: No
JUDGMENT
BEAZLEY P: The application before the Court is for an extension of time in which to file an appeal against the applicant's conviction on two counts on an indictment following a jury trial in the District Court. The Crown has contended that the Court has no jurisdiction to hear the application or any appeal should the application be successful in circumstances where the applicant, Raymond George Morgan, had already appealed against the convictions and the Court had determined that appeal. The applicant contends that the Court has jurisdiction because he did not, in his first appeal, appeal against his conviction in respect of counts 5 and 6. Alternatively, he contended that he abandoned his appeal in respect of his conviction on those counts and the Court has jurisdiction to go behind that abandonment.
The background to the application is as follows.
On 26 June 2009, the applicant was found guilty of the following counts on an indictment filed in the District Court on 20 May 2009:
Count 2: receiving a stolen motor vehicle;
Count 3: robbery in company at a hotel in Willoughby;
Count 4: robbery in company at a hotel in Drummoyne;
Count 5: possessing $4,650 in cash, the proceeds of crime; and
Count 6: possessing $25,000 in cash, the proceeds of crime.
A verdict of not guilty was returned on count 1 in the indictment, being a charge of stealing a motor vehicle. That count had been brought alternatively to count 2. Having found the applicant guilty on count 2, the verdict of not guilty on count 1 followed.
The applicant, by notice to appeal filed on 22 October 2010 (the original appeal), appealed against all counts of which he had been convicted. In his notice of grounds of appeal filed 22 October 2010, the applicant relied upon the following five grounds of appeal:
"Ground [o]ne: the learned trial judge erred in admitting the evidence of the witness Professor Maciej Henneberg to the effect that:
(a) the appellant was similar in appearance to one of the robbers;
(b) that the appellant was identical in appearance to one of the robbers:
(c) statistical evidence about the proportion of the population who would fit into ... Professor Henneberg's description of the 'person of interest'.
Ground two: his Honour erred in failing to give any or any adequate reasons for admitting the opinion evidence of Professor Henneberg.
Ground three: his Honour erred in failing to direct the jury ... that in order to convict the appellant of receiving a stolen motor vehicle (count two) the jury would have to be satisfied beyond reasonable doubt that the appellant did not steal the motor vehicle (count one).
Ground four: the verdict on count two was unreasonable and cannot be supported having regard to the evidence.
Ground five: the jury's verdicts on counts 3 and 4 were unreasonable and inconsistent with the evidence."
The notice of grounds of appeal, on their terms, were not directed to the convictions on counts 5 and 6. Nor did the applicant's written submissions in support of his appeal, filed 4 February 2011, refer to counts 5 and 6.
The Crown's written submissions, in response to ground 5 of the notice of appeal, noted:
"... that although the evidence to establish count 6 (the location of $25,000 in cash bundled in the same way as that taken from the Willoughby Hotel) supports the conviction on count 3, no challenge is made by the applicant to the verdict on count 6."
The Crown did not direct any remarks to count 5.
At the conclusion of his oral submissions on the appeal, not having addressed any submission to counts 5 and 6, senior counsel for the applicant was asked about those counts in the following exchange:
"HIDDEN J: Mr Stratton, the remaining two counts are not the subject of any appeal?
STRATTON: No. That's the money laundering counts, no.
HIDDEN J: The appellant is serving a sentence in respect of those along with the other sentences at present?
STRATTON: Yes, your Honour."
Nothing further was raised in relation to these counts.
The orders made by the Court on the original appeal: Morgan v R [2011] NSWCCA 257, were as follows:
"Appeal allowed in part. Conviction on count 2 quashed, verdict of acquittal entered. Convictions on counts 3 and 4 quashed, (by majority) new trial ordered."
The appeal was allowed in part, as the Court rejected ground 5 of the grounds of appeal. Following the Court's determination of the appeal, the Director of Public Prosecutions directed that there be no further proceedings in relation to counts 3 and 4. The sentences imposed by the trial judge in respect of counts 5 and 6 expired on 3 December 2010 and 3 December 2011 respectively and the applicant served the sentence in full.
The applicant now seeks to appeal against his convictions on counts 5 and 6. Alternatively, he contends that he had abandoned his appeal in relation to counts 5 and 6 and that the circumstances were such that, the Court, in the exercise of its discretion, should permit the applicant to withdraw that abandonment and now proceed to hear and determine the appeal against his convictions on those two counts.
The Crown contended that the Court has no jurisdiction to entertain an appeal against counts 5 and 6, as the applicant's original appeal was against all counts of which he was convicted, including counts 5 and 6, and that appeal was determined by the orders of the Court made on 1 December 2011. As the Court's orders were entered on the Court's computerised record system on 8 December 2011 and no application was made to set aside those orders within the 14 day time period prescribed by the Criminal Appeal Rules, r 50C, the Court's orders were final and no extension of time is permitted by the Rules: r 50C(4).
According to this submission, therefore, the original appeal, which included counts 5 and 6, could not be the subject of a further appellate determination. The Crown also submitted, in support of its primary contention that the applicant had already appealed against counts 5 and 6, that upon the proper construction of the statutory right of appeal contained in the Criminal Appeal Act 1912, s 5(1), one appeal only is maintainable from an indictment containing multiple counts (whether such appeal is brought as of right or pursuant to leave).
Relevant legislation
An appeal against conviction may be brought pursuant to the Criminal Appeal Act, s 5(1). That section provides:
"5 Right of appeal in criminal cases
(1) A person convicted on indictment may appeal under this Act to the court:
(a) against the person's conviction on any ground which involves a question of law alone, and
(b) with the leave of the court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal against the person's conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal ...(c) ..."
The Criminal Appeal Act, s 6 governs the powers of the Court in respect of any appeal under s 5. Relevantly, it provides as follows:
"6 Determination of appeals in ordinary cases
(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."
The Criminal Appeal Rules govern the procedural requirements of an appeal and also provide for the entry of orders made by the Court on the determination of an appeal, as well as for the consequences of entry of such orders. In addition, the Rules specify various powers of the Court to set aside or vary orders.
Rules 23C-24 specify the requirements for filing a notice of appeal, relevantly, as follows:
"23C Documents to accompany notice of appeal or notice of application for leave to appeal
A notice of appeal against conviction, or a notice of application for leave to appeal against sentence, may not be filed, except with the leave of the Court or the Registrar, unless it is accompanied by the following:
(a) a statement of the grounds for appeal,
(b) written submissions in support of the appeal,
(c) a certificate by or on behalf of the appellant that the following are available from the proper officer of the Court of Trial:(i) the transcript of the proceedings in the Court of Trial (including the transcript of the summing-up to the jury in the case of an appeal against conviction, and the transcript of the remarks on sentence in the case of an appeal against sentence),
(ii) the exhibits in the Court of Trial,(d) a statement nominating the solicitor and counsel acting for the appellant.
23D Effect of incomplete notice of appeal or leave to appeal
A notice of appeal against conviction, or a notice of application for leave to appeal against sentence, that is not accompanied by all the documents listed in rule 23C has effect as a notice of intention to appeal, or a notice of intention to apply for leave to appeal, as the case may be.
...
24 Requirement to complete form of notice of appeal etc
(1) Every person sending the following notices is to answer the questions and comply with the requirements set out in the relevant forms for the notices:
(a) notice of intention to appeal,
(b) notice of intention to apply for leave to appeal,
(c) notice of appeal,
(d) notice of application for leave to appeal,
(e) notice of an appeal under section 5F (3) of the Act.(2) The answers to the questions in such forms are taken to be applications to the Court in respect of the matters referred to in the forms." (emphasis added)
Rule 25A(1) provides that where an appellant intends to rely upon grounds of appeal not stated in the notice of appeal, the appellant is to send notice of additional grounds to the Registrar within 28 days after giving notice of the appeal or application for leave to appeal. The time specified in subrule (1) may be extended by the Court at any time: see subrule (2).
Rule 27 deals with the abandonment of an appeal and is in the following terms:
"27 Abandonment of appeal
An appellant who has given notice of appeal, or of any application, may abandon such appeal or application by forwarding a notice of abandonment (Form No III) to the Registrar, whereupon the appeal or application shall be deemed to have been dismissed or refused by the Court."
Form No III is in the following terms:
"Criminal Appeal Act 1912
(Title of proceedings)
Notice of Abandonment
The day of 19 .
I, , having given notice of my desire to appeal against my conviction (or against (the judgment or order made on ............... 19..) or the sentence passed upon me upon my conviction) before the [Court], held at , hereby give notice that I abandon all further proceedings in respect of my appeal." (emphases added)Rules 50A-50C govern the determination of appeals and applications:
"Determination of appeals and applications
50A Determination of appeal or application
An appeal or application for leave to appeal is determined on the making of orders disposing of the appeal or application.
50B Entry of order disposing of appeal or application
(1) Any order of the Court is to be entered.
(2) Unless the Court orders otherwise, an order is taken to be entered when it is recorded in the Court's computerised record system.
(3) If the Court orders that the Registrar enter an order by signing and sealing a minute of the order, the order is taken to be entered:
(a) when a document embodying the order is signed and sealed by the Registrar, or
(b) when the order is recorded as referred to in subrule (2),whichever first occurs.
50C Power to set aside or vary order
(1) The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order.
(2) If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the order under subrule (1), as if the order had not been entered.
(3) Within 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered.
(4) The Court may not extend the time limited by subrule (2) or (3).
(5) Nothing in this rule affects any other power of the Court to set aside or vary an order."
Further factual matters
On 30 April 2012, the applicant filed a Form No IV "Notice of Appeal or Notice of Application for Leave to Appeal" in which he specified that he appealed against conviction and sentence and specified that the offences of which he was convicted were counts 5 and 6. In his notice of grounds of appeal filed the same date, the applicant raised two grounds of appeal:
"1. In light of the quashing of the convictions for counts 3 and 4, the convictions for counts 5 and 6 should also be quashed.
2. The verdicts of guilty for counts 5 and 6 were unreasonable and cannot be supported having regard to the evidence."
That appeal was out of time and the Registrar refused an extension of time.
Issues on the application before the Court
I have outlined, in broad terms, at [1], the issues raised by the present application before the Court. In my opinion, those broad issues raise the following questions for consideration:
(1) Must a jury trial proceed upon a single indictment even where the indictment contains multiple counts?
(2) Can there be more than one appeal from an indictment that contains multiple counts?
(3) If there may only be one appeal from an indictment containing multiple counts, can there be an abandonment of the appeal in respect of some but not all of the counts of which the accused was convicted?
(4) If there can be more than one appeal from an indictment, did the applicant appeal from his convictions on counts 5 and 6 in his original appeal to this Court, so that he is precluded for that reason from bringing the application before the Court?
(5) If the answer to either question 2 or 3 is yes, did the applicant in this case abandon his appeal in respect of counts 5 and 6 on the indictment?
(6) If the applicant abandoned his appeal in respect of counts 5 and 6 on the indictment, should this Court grant leave to appeal in respect of those counts?
(7) If the answer to questions 5 and 6 is yes, and if an appeal from those counts is successful, what orders should this Court make?
The first of these questions arises as a preliminary consideration to the issue raised by the second question, which is a jurisdictional question and is therefore central to the determination of the application. If there can be only one appeal from an indictment, even if there is no ground of appeal in respect of one or more counts of which the accused was convicted, this Court has no jurisdiction to determine the application now before it. The third question also raises a jurisdictional question. If there can only be one appeal, the Court will only have jurisdiction to entertain the present application if an applicant can abandon an appeal in respect of some, but not all, counts on the indictment.
If there can be more than one appeal, the fourth and fifth questions raise factual matters that require determination. The sixth and seventh questions relate to the merits of, and the appropriate orders that should be made on, the application if the court has jurisdiction and determines that there was an abandonment of the appeal in respect of the convictions on counts 5 and 6.
Question (1): must a jury trial proceed on one indictment only?
The Criminal Procedure Act 1986, s 5, provides that an offence must be dealt with on indictment, unless it is an offence that is permitted or required to be dealt with summarily. "Indictment" is defined in Ch 2, Pt 2, "Indictments and Other Matters", s 15(2), to include, relevantly, "any ... process ... by which criminal proceedings are commenced". Section 23, which also falls within Ch 2 Pt 2, provides that up to three counts may be inserted in the same indictment, against the same person for distinct offences of the same kind committed against the same person. In this case, s 23 had no application because the offences charged were not committed against the same person. Section 24 provides that any number of accessories may be charged in the same indictment and tried together, regardless of whether the principal offender is or is not included in the indictment, is not in custody, or is not amenable to justice. Section 27 provides that the Supreme Court Rules may prescribe the form of indictment. Supreme Court Rules 1970, Pt 75, Div 1, r 3D prescribes the form of indictment.
The Criminal Procedure Act, Ch 3, governs the indictable procedure. There are provisions relating to the signing of an indictment: s 126; the manner of presenting an indictment: s 127; and the time within which an indictment is to be presented: s 129. Section 130 provides that the court (defined in subs (1) to mean either the Supreme Court or the District Court) has jurisdiction with respect to the conduct of proceedings on the indictment as soon as the indictment is presented and the accused person arraigned.
In Swansson v The Queen [2007] NSWCCA 67; 69 NSWLR 406, a five judge bench of the Court of Criminal Appeal considered the question whether the trial of a person was a nullity in circumstances where each appellant had been tried, along with other co-accused, upon separate indictments in respect of Commonwealth and State offences with which each was charged. The criminal conduct giving rise to the charges against each of the accused related to a conspiracy between 10 individuals to import prohibited drugs into Australia.
Swansson was charged with offences under the Customs Act and the Criminal Code. It had been alleged that he had aided and abetted the importation of the drugs into Australia. A second indictment was presented against Swansson for a State offence, that he knowingly took part in the supply of an amount of a prohibited drug. The Court was informed, at the time of presentment of this indictment, that it was an alternative charge.
Spigelman CJ, at [11], observed that the proposition that there can only be one indictment in any one criminal proceeding was long-established, observing that the rule had been stated in terms, "one indictment, one jury". His Honour noted that the rule was one of criminal procedure. His Honour accepted that the basis of the rule had never been clearly articulated, but its existence was well-entrenched: see Crane v Director of Public Prosecutions [1921] 2 AC 299.
In Munday v Gill [1930] HCA 20; 44 CLR 38 the High Court, in obiter remarks, accepted Crane as correctly stating the law. In this regard, Gavan Duffy and Starke JJ commented, at 76:
"... in a trial upon indictment the jury is, and can only be, impanelled and sworn to try the issues of the particular indictment - to find whether the accused be guilty or not guilty upon that indictment and no other."
Their Honours observed that the simultaneous trial of several indictments was "impossible" and that such a trial was a nullity and without jurisdiction. Dixon J observed, at 87:
"... there is no way allowed by law of putting in charge of one jury at one time two or more prisoners arraigned upon separate indictments. The jurors are specially chosen for the single purpose of trying one indictment ..."
Isaacs CJ, although dissenting in the case, emphatically supported the "one indictment one jury" rule: see at 52.
The Crown had argued in Swansson that the rule was merely a technical procedural rule of no contemporary significance. However, Spigelman CJ observed, at [27], that the Criminal Procedure Act 1986, which had streamlined criminal procedure in this State, clearly proceeded on the assumption that the "one indictment one jury" rule existed as a rule of the common law of criminal procedure. His Honour noted, for example, that there was no provision in the Criminal Procedure Act for the joint trial of separate indictments, a matter regarded as determinative for upholding the existence of the rule by the Full Court of the Supreme Court of Victoria in R v Landy [1943] VLR 73 at 74-75.
McClellan CJ at CL (as his Honour then was), Sully J and Howie J agreed with the Chief Justice. Sully J, at [98], considered the rule not to be "a mere technicality", but "a fundamental norm of a trial upon indictment". Howie J considered, at [183], that the principle was a rule of law. Whilst Simpson J expressed doubt that the rule was anything other than a rule of practice (see at [148]), her Honour was of the opinion that the statements in Munday v Gill were:
"... of such power and force that, in my opinion, it is not now open to this Court to do other than accept that the law is as stated by their Honours." (at [151])
Although it is not necessary to determine the matter for the purposes of the issue before the Court, the observation of Gavan Duffy and Starke JJ that a trial conducted on two indictments was a nullity suggests that this is a rule of law, or, as Mason P said in R v JS [2007] NSWCCA 272; 230 FLR 276, at [165], "a fundamental aspect of the concept of trial on indictment": see Crane and Swansson.
In Landy, to which Spigelman CJ referred in Swansson, an accused was tried on separate indictments of offences which, in accordance with the legislation governing criminal proceedings on indictment (the Presentments Act 1916 (Vic), could have been brought on the same indictment. The Court concluded, following R v McDonnell (1928) 20 Cr App R 163, that the law did not permit an offender to be tried on two indictments at the same time, notwithstanding that the offences could have been contained in the one indictment. In McDonnell, it was held that a person tried at the one time for two offences, where the offences were contained in separate indictments, had not been properly tried at all and therefore the proceedings were a nullity. In Landy, Mann CJ observed that the same rule had been applied in Canada.
The result, therefore, is that a trial before a jury must proceed on the presentation of a single indictment. However, the indictment may contain multiple counts. For the reasons discussed below, this is relevant to the determination of the central issue in this appeal, namely whether there can be only one appeal from a person's conviction of multiple offences on an indictment
Question (2): Can there be more than one appeal from an indictment that contains multiple counts?
Having concluded that a trial must proceed on a single indictment, which may contain multiple counts, the next question that arises is whether there can be more than one appeal in respect of the convictions on the indictment. The question may be posed another way. Can one appeal be brought in respect of some of the convictions and a separate appeal brought in respect of other of the convictions of the various counts on the indictment? This question is the critical question for the Court's determination. The Crown relied, in support of its submission that one appeal only lay from an indictment, on obiter statements of the High Court in Grierson v R [1938] HCA 45; 60 CLR 431 and on two Western Australian decisions which are referred to below.
The question in Grierson was whether an appeal, once determined, may be reopened or whether a second appeal may be brought. Grierson, who was indicted on two counts and convicted of both, had appealed to the New South Wales Court of Criminal Appeal. The appeal was dismissed. Grierson later purported to bring a second appeal from his convictions on the same two counts on the basis that, since his original appeal, material facts had become known regarding one of the Crown's material witnesses. The Court of Criminal Appeal refused to reopen the original appeal or to grant leave to bring a fresh appeal: R v Grierson (1933) 50 WN (NSW) 71.
Grierson appealed to the High Court. Rich J, observing that a person's entitlement to appeal was founded in statute concluded, at 434, that:
"... the jurisdiction of the Court of Criminal Appeal is confined within the limits of the Act and that when the court has heard an appeal on its merits and given its decision the appeal cannot be reopened."
Dixon J was of the same opinion. His Honour observed, at 435, that the Court of Criminal Appeal had held, in accordance with the decision of the Supreme Court of South Australia in R v Edwards [No 2] (1931) SASR 376, that:
"... a second appeal from a conviction could not be entertained after the dismissal, upon the merits, of an appeal or application for leave to appeal and that the first appeal could not be reopened after a final determination."
After expressing his agreement with that proposition, Dixon J stated, at 435-436:
"The jurisdiction is statutory, and the court has no further authority to set aside a conviction upon indictment than the statute confers. The Criminal Appeal Act of 1912 N.S.W. ... does not give a general appellate power in criminal cases exercisable on grounds and by a procedure discoverable from independent sources. It defines the grounds, prescribes the procedure and states the duty of the court. The statute deals with criminal appeals rather as a right or benefit conferred on prisoners convicted of indictable offences and sets out the kind of convictions and sentences from which they may appeal and lays down the conditions on which they may appeal as of right and by leave and the procedure which they must observe. It limits the time within which appeals and applications for leave to appeal may be brought, subject, however, to a discretionary power in the court to extend the period except where the sentence is capital. The grounds or principles upon which the court is to determine appeals are stated, and the duty is imposed on the court of dismissing an appeal, unless on those principles it determines that it should be allowed. The determination of an appeal is evidently definitive, and a conviction unappealed is equally final." (emphasis added)
McTiernan J, at 437, agreed with the reasons of Rich and Dixon JJ.
Starke J, at 435, also considered that the application should be dismissed, expressing entire agreement with the reasons of Jordan CJ in the New South Wales Supreme Court, where Jordan CJ had stated:
"When an appeal has once been fully heard and disposed of, that is, in my opinion, an end of the matter ... and the prisoner cannot continue to appeal from time to time thereafter, whenever a new point occurs to him ... or whenever a new fact is alleged to have come to light."
The principle in Grierson that an appellate court had no jurisdiction to reopen an appeal that had been determined on the merits was endorsed by the plurality in Burrellv The Queen [2008] HCA 34; 238 CLR 218 at [24]. The Court in Burrell, at [26], found it unnecessary to consider whether there were qualifications grafted onto that general rule, and in particular, if there was any exception based upon a denial of procedural fairness. If there were such qualifications, the plurality held they were to be sourced in the Criminal Appeal Act.
The Crown relied upon two Western Australian decisions in which Grierson had been applied: Matta v The Queen (1995) 126 FLR 127 and Napier v State of Western Australia [2008] WASCA 106; 36 WAR 543. In Matta, the applicant had been charged with three drug offences, two contravening Commonwealth law and the third offence contravening a State law. The applicant was found guilty by unanimous verdicts of guilty in respect of each count. The applicant filed an application for an extension of time to appeal on the basis that the trial judge had erred in law by directing the jury that he would accept a majority verdict. Whilst a majority verdict was available in respect of the State offence, it was precluded in respect of the Commonwealth offences pursuant to The Constitution, s 80, as had been determined by the High Court in Cheatle v The Queen [1993] HCA 44; 177 CLR 541.
The application for extension of time was refused on the basis that there was no merit in the proposed appeal in circumstances where the jury had brought in unanimous verdicts in respect of both the Commonwealth and State offences. Relevantly for the question presently under discussion, the applicant's counsel, in the course of the hearing of the application for extension of time, informed the court that the applicant wished to appeal only against the convictions for the two Commonwealth offences.
Subsequently, the applicant filed a further application for extension of time to appeal against all counts on the basis that certain evidence had been wrongly admitted. The Crown opposed the application contending that the proposed appeal was not competent by reason of the Court's earlier refusal to extend time.
Pidgeon J, at 128-129, noted that Grierson was authority for the proposition that a second appeal or application for leave to appeal from a conviction cannot be entertained after its dismissal upon the merits. His Honour considered, at 129, that this rule was binding even where different grounds were put forward in the second application. See also R v Wickliffe [1986] 1 NZLR 4. His Honour concluded, on the basis of the reasoning in Grierson, that it made no difference whether the Court had refused an extension of time as distinct from refusing an application for leave to appeal. His Honour observed that in Grierson, Dixon J had stated that the principle applied both to an appeal or application for leave to appeal. Pidgeon J considered, at 129-130, that similar reasoning applied to an application for extension of time, because the determination of that application involved a consideration of the merits of the proposed grounds of appeal.
His Honour held that the position was no different where, in the original application for an extension of time, the proposed appeal on the State count had not been considered on its merits. As his Honour noted, at 130:
"It is not open to lodge separate appeals on each count of a multiple indictment. There is one appeal."
Rowland J, at 130, agreed with the reasons of Pidgeon J. Owen J also agreed with his Honour's reasons, but added additional comments on the question of multiple appeals. His Honour stated, at 131, that once an appeal had been heard on the merits, all statutory rights of appeal were exhausted and any further appeal was incompetent: see Grierson at 435-436. It was irrelevant, on his Honour's approach, that the second application was based on different proposed grounds of appeal from those advanced on the earlier occasion. His Honour considered that this principle applied, whether or not the question arose on a substantive appeal or on an application to extend time in which to appeal.
Owen J had earlier observed, at 130, that on an application for an extension of time, the merits of the proposed appeal fell, "almost inevitably", for consideration. This was particularly so where there was no satisfactory explanation for the delay, so that the merits of the proposed appeal would become the dominant consideration. In his Honour's opinion, the merits of the proposed appeal on the Commonwealth counts had been considered on the first application. It followed that the second application in respect of those counts was incompetent. This was so notwithstanding that an appeal, at least in respect of the Commonwealth counts, would almost certainly succeed having regard to the principles stated in Ridgeway v R [1995] HCA 66; 184 CLR 19 in respect of the discretion to exclude unlawfully obtained evidence.
Owen J then gave separate consideration to the application in respect of the State count. His Honour observed that the proposed grounds of appeal advanced on the first application were drafted in terms challenging the convictions on both the State and Commonwealth convictions. However, during the course of the hearing of that application, counsel had informed the Court that the application for leave to appeal and the proposed appeal would be pursued, if an extension of time was granted, only in relation to the Commonwealth convictions. This was because the proposed grounds drafted in the original notice of appeal, challenging the trial judge's direction that he would accept a majority verdict, could only succeed in relation to the Commonwealth counts.
Owen J observed, at 131-132:
"The applicant did not formally abandon the application for an extension of time within which to appeal against the State convictions and nor was the application formally amended. It was simply not pursued."
His Honour continued, at 132:
"Counsel for the applicant indicated to this Court that when the decision was made not to pursue the appeal in relation to the State counts the decision in Ridgeway was known to those advising the applicant but a position had not been taken on it. No mention was made to the Court in the earlier proceedings that the grounds might be enlarged to encompass the Ridgeway principle. In the circumstances I think that the dismissal by the Court of the application for an extension of time in the earlier proceedings must be taken to be a dismissal of the application in relation to all convictions."
It followed, in his Honour's opinion, that the application to extend time in respect of the State count was also incompetent.
The question of the competency of a second application to extend time to appeal was again considered by the Western Australian Court of Appeal in Napier. That case involved a single count of murder of which the appellant had been convicted. An application to extend time in which to appeal was refused after the Court considered that the delay in bringing the application was inexcusable and that none of the proposed grounds of appeal had any substance. Some 15 years later, the appellant brought a further application for an extension of time in which to appeal. The question in issue before the Court was whether the second application was competent.
Steytler P (McLure and Buss JJA agreeing) noted, at [24], that notwithstanding that the dismissal of the first application for an extension of time was an interlocutory order, not a final determination of the merits of the appeal, the parties had accepted that the Court's decision in Matta was correctly decided. His Honour also observed that the provisions of the WA Criminal Code were in similar terms to those of the Criminal Appeal Act, considered in Grierson. His Honour concluded that because the refusal of the first application resulted from a consideration of the merits of the proposed grounds of appeal, the decision was to be treated as if it dismissed the appeal. It followed that the second application was incompetent.
Matta was also applied by the Court in Sherkam v Parker [2002] WASCA 179, where the Court stated, at [6] and [7], that the relevant statute provided for one appeal from a conviction. It was irrelevant that different grounds of appeal might be sought to be advanced in a second appeal.
In R v Brain [1999] SASC 358; 74 SASR 92, the South Australian Court of Criminal Appeal stated, at [46]:
"It is well established that the legislation is to be read as permitting only one appeal against conviction and only one appeal against sentence. There are powerful legal and practical reasons for so deciding. It suffices to refer to the following decisions binding this Court: R v Edwards (No 2) [1931] SASR 376; Grierson v The King (1938) 60 CLR 431; The Queen v Shannon (1982) 32 SASR 5; R v Caruso (1988) 49 SASR 465; Postiglione v The Queen (1997) 189 CLR 295. The same view has been taken of similar legislation in other States: Saxon (1998) 101 A Crim R 71 (Court of Criminal Appeal, New South Wales); Stone (1989) 42 A Crim R 189 (Court of Criminal Appeal, Western Australia); R v McNamara (No 2) [1997] 1 VR 257 (Court of Appeal, Victoria)." (emphasis added)
A consideration of the authorities referred to in Brain confirms that only one appeal lies from an indictment, regardless of whether there is one or more than one conviction on the indictment.
In R v Reardon [2004] NSWCCA 197; 60 NSWLR 454 Hodgson JA (Simpson and Barr JJ agreeing) observed, at [41], that Grierson was authority for the proposition that once an appeal had been heard and determined and the order perfected, there is no jurisdiction to re-open the appeal. His Honour accepted that this principle was subject to the slip rule, cases of fraud and possibly where there had been a breach of procedural fairness. In regard to the last of these matters, his Honour stated, at [41]:
"Failure to deal with an argument that has been advanced, or deciding an appeal on a basis not properly argued, although possibly amounting to a denial of procedural fairness and thereby to an error of law, could not of itself in my opinion be a failure to determine the appeal such as could avoid the operation of the principle in Grierson."
In R v McGrane [2012] QCA 221, the Court stated that it had "no jurisdiction to hear a further appeal". The Court referred, inter alia, to Grierson. See also R v Nudd [2007] QCA 40 and R v Lumley [2009] QCA 172 as supporting this proposition.
In Arnaout v The Queen [2008] NSWCCA 278; 191 A Crim R 149, the Court was concerned with an appeal against sentence of a person convicted of seven separate offences. The Crown had argued that even if sentencing error was established, the Court would not intervene, as no other sentence was warranted in law: Criminal Procedure Act, s 6(3). An issue as to the proper construction of s 6(3) arose and, in particular, in determining whether to re-sentence, the Court was concerned only with the individual sentence or sentences subject of the appeal, or whether it extended to those not subject of the appeal.
Whilst the provisions of s 6(3) are not relevant to the present appeal, the applicant relied upon the remarks of Basten JA, at [20], where his Honour stated:
"It follows that the use of the singular form of 'sentence' in s 6(3) does not mean an aggregation of sentences, merely because use of the singular may import the plural. No doubt an appeal under s 5(1) may relate to more than one conviction or sentence; but if an offender appeals against one only of three convictions, the court is not empowered to consider the validity of other convictions."
The applicant submitted that his Honour's remarks supported his submission that the Court was empowered to consider the validity of the convictions in relation to counts 5 and 6 because there had been no appeal against those convictions. It was submitted that this was so, notwithstanding that the original notice of appeal referred to those counts. The applicant's argument was that there was no appeal from those convictions because none of the grounds of appeal related to counts 5 and 6.
This submission, in my opinion, faces two difficulties. First, it begs the question whether there was an appeal against the convictions on counts 5 and 6. That matter is considered below in question four. Secondly, it fails to grapple with the question, which I consider is central to the applicant's present application before the Court, whether separate appeals may be brought against individual convictions tried on the one indictment.
In this regard, in Arnaout, Basten JA had also said, in a passage not referred to by the applicant:
"The question is not whether separate 'appeals' are required in relation to separate sentences ... but rather to identify the matter with respect to which an applicant has sought to invoke this Court's jurisdiction." (emphasis added)
Basten JA referred to the observation of Price J at [80], where his Honour had stated, in unequivocal terms:
"Where an offender has been convicted of more than one offence and more than one sentence is imposed, there is one appeal to this Court although that appeal may be founded on a number of grounds." (emphasis added)
Price J thus considered that the reference to "sentence" in s 6(3) was a reference to the aggregate sentence and was not confined to the sentence imposed in respect of which the appeal was brought. Although Basten JA did not, as I understand his Honour's reasons, commit himself to a view as to whether only one appeal lay: see at [20], Price J's observation, albeit obiter, is consistent with the statements in Grierson and Matta to which I have referred.
The ratio of Grierson is that an appeal against conviction is final and cannot be reopened, subject only to the rules of Court which allow an appeal to be revisited if application is made within the time prescribed by the rules. The observations in Grierson to which I have referred tend to suggest a negative answer to the question under consideration, particularly the comment of Dixon J that an appeal is determinative and that a conviction from which there is no appeal is final.
There is an observation in Matta by Pidgeon JA, agreed with by the other members of the Court, that there is only one appeal from an indictment containing multiple counts. Having regard to the matter that was in issue in that case, that comment was, in my opinion, part of the ratio of the case.
The same issue arose in R v Saxon (1998) 101 A Crim R 71, where the New South Wales Court of Criminal Appeal reviewed the decisions of this Court and other State intermediate appellate courts which had held that there may only be one appeal notwithstanding that an indictment may contain a number of different counts. Smart J held, at 81, that the present case fell within the terms of Grierson. No suggestion was made by counsel on the argument on appeal that Saxon or the other cases in which this question has arisen, whether as part of the ratio or by way of dicta, were wrong or should not be followed.
In any event, I consider that these decisions correctly state the law. This flows, in my opinion, from the one indictment/one jury rule considered in Swansson and from the principle of finality of litigation. If there can only be one indictment presented to a jury of the counts which are charged against an accused person, any appeal must be from the verdicts on the indictment. Were it otherwise, the principle of finality of litigation would be offended.
The principle of finality of litigation was examined by the High Court in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 at [34]:
"A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances."
In Burrell the Court emphasised that the reargument or reagitation of issues already decided by a court involves an unacceptable and, indeed, unavailable, departure from the principle of finality: see especially at [15], [16] and [19]; see also Kirby J at [98]. See also Eastman v R [2008] FCAFC 62; 166 FCR 579.
If more than one appeal was allowed from convictions of different counts on an indictment, there may well be an overlapping of issues in the different appeals. There may also be a determination in one appeal which would conflict with the determination in the second appeal.
The present case is an example. The Crown case was that the money which was the subject of count 6 was the proceeds of the robbery of the Drummoyne Hotel, being the robbery subject of count 3. The evidence relating to Count 6 was thus directly relevant to count 3. If separate appeals were permissible from the conviction on the robbery count (count 3) and from the possession of the proceeds of crime count (count 6), differently constituted courts could arrive at different conclusions as to whether the respective convictions were unreasonable and inconsistent with the evidence.
Subject to the question of abandonment, it follows in my opinion, therefore, that this Court does not have jurisdiction to hear and determine a second appeal in respect of counts 5 and 6.
Question (3): Abandonment
The next question that arises for consideration is whether there can be an abandonment of the appeal in respect of some but not all convictions on the indictment.
The Criminal Appeal Rules, r 27 permits an abandonment of an appeal (described as a "procedural dismissal": R v Bell (1987) 8 NSWLR 311 at 314). The court, in its inherent jurisdiction, is entitled to go behind the Rule because there has been no determination on the merits and will do so if the maintenance of the abandonment would lead to a miscarriage of justice. As Dixon J explained in Grierson at 436-437:
"If the prisoner has abandoned his appeal, the Court of Criminal Appeal in England will exercise a discretion to allow him to withdraw his notice of abandonment, notwithstanding that it operates as a dismissal of the appeal ... But in such a case there has been no determination by the court, and there is no English case in which, after such a determination, an appeal has been reopened or a fresh appeal has been entertained."
It is relevant to observe that the Form No III Notice of Abandonment, set out at [20] of these reasons, is drafted on the basis of there being an abandonment of the appeal, that is, the appeal from the convictions of the counts on the indictment. It is not premised on the possibility of an abandonment of some only of the grounds of appeal or the abandonment of some only of the convictions on an indictment.
If there can only be only one appeal, it seems to me that the appeal is either proceeded with or abandoned. There cannot be an abandonment of a portion of the appeal leaving open the possibility of a further or fresh appeal in respect of the abandoned part. If a convicted person decides not to pursue part of the appeal so as not to contest a conviction on some counts, the consequence, in my opinion, is that there has been a determination of the appeal. The position in such a case is that described in Grierson by Dixon J in the emphasised portion in the passage set out at [42] above, viz: "The determination of an appeal is evidently definitive, and a conviction unappealed is equally final".
Accordingly, even if the appeal in respect of convictions on some counts is not argued the effect, in my opinion, is that those convictions go unchallenged. Being unchallenged, they will not be the subject of a specific order of the Court in its determination of the appeal, but those convictions are nonetheless final and are not amenable to a separate appeal. Were it otherwise, the principle of finality discussed in the previous section of these reasons would be offended for the same reasons as are discussed there.
Therefore, it is not open to the applicant to argue that, in respect of his original appeal, he had abandoned his appeal on counts 5 and 6. Accordingly, I consider that the appeal should be dismissed and the other questions identified at [23] above do not arise for consideration. However, should I be wrong in this conclusion, I will express my views on the other questions, but I do so relatively briefly.
Question (4): If there can be more than one appeal, did the applicant appeal from his convictions on counts 5 and 6 in the original appeal?
The Crown submitted that, even if there may be more than one appeal where there are multiple counts on the indictment, the applicant appealed against his convictions on counts 5 and 6 in his original appeal so that there has been a final determination of his appeal on all counts. This submission was based essentially on the provisions of r 24(2) (set out above at [17]). For the purposes of understanding the effect of r 24(2), it is convenient to refer to the prescribed form for a notice of appeal or notice of application for leave to appeal, being prescribed Form No IV.
The information required to be included in Form No IV is as follows: the name of the appellant; the date of birth of the appellant; the lower court file number; and a statement as to whether the appellant appeals against conviction only, conviction and sentence, or sentence only. Details of the plea entered at trial must be given, that is, either guilty or not guilty.
The form also requires that the court, that is, the Supreme Court or the District Court, be specified, as well as the location of the court of trial. In addition, the following information must be given: the name of the trial or sentencing judge, the dates of trial and sentence hearing, the date of sentence, the offences of which the person was convicted; the longest sentence; the non-parole period; the location of the gaol in which the person is held if in custody; and, if not in custody, the person's residential address. The appellant's legal representative must be nominated. The appellant is also required to state whether he or she wishes to be present at the hearing of the appeal, the preferred hearing date for the appeal and the estimated length of hearing.
Prescribed Form No IV also requires a response to the question, "CONVICTED OF (list all offences)". In response to that requirement, the applicant's notice of appeal, in respect of his original appeal, particularised his convictions on counts 2 to 6 inclusive.
The particulars required by Form No IV perform a number of functions. Some are administrative. For example, the requirement that the details of the trial court's file are required so as to enable the Court to ensure that the appellate Court has the correct file in its possession. The information as to whether the appellant wishes to attend is required so that the appropriate steps can be taken to bring the person to the Court for the hearing of the appeal if that person is in custody.
However, some of the particulars required have substantive implications. This is particularly so in the specification of the type of appeal and the counts on which the person was convicted. The form requires that all counts upon which the applicant was convicted must be specified in the notice of appeal. Rule 24(2) specifies that the answers to the questions on the form are taken to be applications to the Court in respect of those matters. The applicant, as the form required him to do, included counts 5 and 6 in his original notice of appeal.
It follows, as the Crown correctly contended, that the combination of the terms of the applicant's original notice of appeal and the effect given to that form by r 24(2), that the applicant's original appeal included an appeal in respect of counts 5 and 6. As the Court has determined the appeal arising from that notice of appeal, I am of the opinion that there can be no further appeal in respect of those counts.
For that reason also, the present application must be dismissed.
Question (5): Did the applicant abandon that part of his original appeal in respect of his conviction on counts 5 and 6?
This question also only arises if I am wrong in all that I have determined thus far.
In the present case, no notice of abandonment was filed. Leaving that aside for the moment, and also assuming that there could be an abandonment of the appeal in respect of the convictions on counts 5 and 6, the abandonment occurred in circumstances where the applicant had given instructions to appeal against all convictions and the notice of intention to appeal referred to all convictions. However, there were no grounds of appeal directed to those convictions, nor did the written submissions address them. The Crown's written submissions, filed nearly two weeks before the hearing of the appeal, drew attention to this. It was expressly noted in the submissions that whilst the bundling of the cash subject of the charge in count 6 supported the conviction on count 3, no challenge had been made by the applicant to the verdict on count 6.
On the hearing of the original appeal, senior counsel for the applicant did not advance any argument in respect of the convictions on those counts and informed the Court, in response to a question from the Court, that there was no appeal in respect of those counts. It should also be observed that the written submissions of senior counsel for the applicant filed for the purposes of the appeal were detailed and were filed nearly four months before the hearing of the appeal.
In my opinion, senior counsel's response to his Honour's question as to the remaining two counts not being "the subject of any appeal" tends to indicate that counsel was informing the court that it had never been intended to pursue an appeal in respect of counts 5 and 6. If that is so there could not be an abandonment of something that had never been pursued. Accordingly, notwithstanding that there was some reasonably available argument that what occurred was an abandonment, on a review of all of the material, I am not satisfied that there was an abandonment. In any event, as I have already concluded, there could not be an abandonment of part of an appeal.
Questions (6) and (7)
Given my determinations thus far, I can deal with questions (6) and (7) together and briefly.
In determining whether to exercise its jurisdiction to go behind an abandonment, the court will in the first instance ascertain how the notice of abandonment came to be filed and then have regard to the prospects of the success of the appeal if leave to appeal were granted: Bell at 314; R v Cartwright (1989) 17 NSWLR 243 per Hunt and Badgery-Parker JJ at 246.
In assessing the circumstances in which a notice of abandonment was filed, a court would be likely to grant leave to withdraw the notice if it was established that the applicant had signed it without fully appreciating its effect, or as a result of fraud or bad legal advice: see Cartwright at 246. It is also established that even if the explanation proffered for the appeal having been abandoned is weak, the principal consideration will be whether there would be a miscarriage of justice if leave to withdraw the notice of abandonment were refused: Bell at 315; Cartwright at 246.
The Crown conceded that if the Court concluded that what occurred during the course of the hearing of the appeal constituted an abandonment, then the appropriate order to make in respect of count 5 was that the conviction be quashed and that there be a retrial. The Crown case was that the money subject of count 6 was the proceeds of the robbery at the Willoughby Hotel. Accordingly, the evidence in respect of count 6 was inextricably linked with the evidence in count 3 and, as the Crown recognised, had the appeal been argued in respect of count 6, the Court would have quashed that count and ordered a retrial. The concession was fair in the sense that it involved a recognition that there would be a miscarriage of justice in respect of count 6 if the applicant was refused leave to withdraw from the abandonment, as I am presently assuming occurred and could occur.
It was but slightly more arguable that the Court may not have quashed the conviction on count 5. However, the Crown conceded there would be a miscarriage of justice if count 5 was not quashed. Accordingly, if the Court had jurisdiction I am satisfied that count 5 also ought to be quashed.
In circumstances where the Crown has decided not to require the applicant to stand trial again in respect of counts 3 and 4, I am of the opinion that there would be no prospect of the applicant being convicted on counts 5 and 6. It would follow, that if the Court had jurisdiction to hear and determine an appeal in respect of the convictions on counts 5 and 6, there should be a verdict of acquittal on those counts.
Absent jurisdiction however, the only order this Court can make is that the application is dismissed.
HIDDEN J: I agree with Beazley P.
HARRISON J: I agree with Beazley P.
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