Nelson v The Queen

[1991] HCATrans 36

A	>,, AUSTRALIA <!"'
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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B35 of 1990

B e t w e e n -

PETER CARL NELSON

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

BRENNAN J

DEANE J

DAWSON J

TOOHEY J

McHUGH J

Nelson 1 8/2/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 FEBRUARY 1991, AT 11.33 AM

Copyright in the High Court of Australia

MR W.T. McMILLAN:  May it please the Court, I appear with my

learned friend, MR P.J. ALCORN, for the applicant.

(instructed by The Public Defender)

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

learned friend, MS L.K. WELLS, for the respondent.

(instructed by the Director of Public Prosecutions)

BRENNAN J:  Mr McMillan?

MR McMILLAN:  Thank you, Your Honour. Your Honours, this

application concerns the issues involved in the

exercise of the discretion in a Court of Criminal

Appeal when dealing with an application to appeal

out of time. Now, the actual determination in this

case concerned an application to substitute a

ground of appeal for another. Section 671 of the

Queensland Criminal Code deals with the time for

appealing.

TOOHEY J:  Mr McMillan, what do you mean when you say, the

appeal deals with or raises the question of the

amendments to grounds of appeal when the appeal is

lodged out of time?

MR McMILLAN:  The notice of appeal itself was lodged within

time -

TOOHEY J: Yes, that is what prompted me to ask the

question.

MR McMILLAN:  But the grounds were sought to be substituted

out of time.

TOOHEY J: Yes, I understand that, so we are not concerned

with an appeal lodged out of time but with an
application to amend the grounds of a notice of

appeal lodged within time?

MR McMILLAN: Unfortunately there is no express

provision - - -

TOOHEY J: But is that the question with which we are

concerned?

Mr McMILLAN:  That is the question. However, there is no

express provision in the Queensland Criminal Code

or the Criminal Practice Rules that deal with the

amendment of a notice of appeal and what the

practice has developed in Queensland, as appeared

in both judgments in this case, is that it is

treated as if it were an appeal out of time.	An
application has to be made for leave to add or substitute the new ground of appeal.

Section 671 by subsection (1) deals with the

time that a proposed appellant has to contend with,

Nelson 2 8/2/91

it being 28 days in relation to lodgment of the

appeal, and subsection (3) says:

The time within which notice of

appeal ..... may be given may be extended at any
time by the Court.

At page 173 of the record, at the foot of that page, the first page of the reasons of the

Chief Justice, he says:

In accordance with the practice of this

Court, which has been explained on a number of occasions, appeals out of time or the

substitution of new different grounds will

only be permitted where special circumstances

justify it.

BRENNAN J:  What are the rules that deal with amendment of

grounds of appeal?

MR McMILLAN: There is nothing in the Criminal Practice

Rules, Your Honour, that deals with it. The only

rule that has any relevance is rule 23, and that

expressly - - -

BRENNAN J:	Where can we find that?
MR McMILLAN:	That is at the back of Carter at page 11,118

at paragraph 2290, Your Honour.

TOOHEY J:	What rule was that, Mr McMillan?
MR McMILLAN:	Rule 23, Your Honour.

TOOHEY J: But that is dealing with an application for

extension of time, is it not?

MR McMILLAN:  Yes, there is no express rule.

BRENNAN J: Is there any rule which requires the grounds to

be stated in the notice of appeal?

MR McMILLAN:  No, there is not. What the court has done in

Queensland in a number of decisions is to hold that

it was said so in Ollis v Andersen, a case which I

will be referring to later, that a notice of appeal

which contains no grounds - often one sees a notice

of appeal with the wording, "I appeal", and the

grounds are "such grounds of appeal as I shall be

advised by counsel". The courts have held that

that is not a sufficient notice of appeal.

BRENNAN J:	I see that Order IX rule 17 requires the notice to be in a form in Part IX of the schedule.	Where
do we find that?
Nelson	3	8/2/91

TOOHEY J: Presumably it is in the next volume, is it not?

MR McMILLAN: It is in the next volume, yes, Your Honour.

BRENNAN J: Yes, it is indeed. Justice Dawson has it.

TOOHEY J:  Mr McMillan, I am not sure what the argument is

here. Is it that the applicant was entitled, or

the appellant as he then was, was entitled as of

right to substitute grounds of appeal, subject no

doubt to the power of the court to adjourn the

matter or impose any other conditions it might
think appropriate; or is it that the applicant was
in the hands of the court, but that the court

exercised its powers or its discretion wrongly?

MR McMILLAN: It is not the former, Your Honour, because

that would give complete licence to an appellant to

lie low for quite some time and then add a ground

right at the commencement of the appeal hearing.

We say that we fall in the middle ground. Because

there is no express provision dealing with

amendment, we must come within the provision

dealing with appeals out of time.

TOOHEY J:  I do not see why that follows, but it may be

quite a different question as to whether the court

has some general supervisory power which would

enable it to reject a ground of appeal sought to be

added at the last minute. But that does not appear

to be the way in which you are putting your

argument.

MR McMILLAN:  No, that is not the way that we are putting

the argument, Your Honour.

TOOHEY J: Well, could I ask you again, what is the way in

which you are putting it?

MR McMILLAN:	The way that we are putting the argument is that in this peculiar type of matter where there is
already an appeal within time, that the court
should take into account the background of the
issues, and unless there has been a gross delay,
then they should grant the amendment with such
adjournments as may be necessary.

TOOHEY J: Well then that is a challenge to the exercise of

the court's discretion.

MR McMILLAN:  That is so, Your Honour, and it will be our

argument that the court, in this instance, failed
to take into account relevant matters when

exercising that discretion.

Nelson 4 8/2/91

TOOHEY J: Well, put that way, there might be some

difficulties in demonstrating the appropriateness

of the grant of special leave.

MR McMILLAN:  Yes, well I will formulate the particular

point of special leave and it will be this, that,

save where the grounds of appeal are untenable and

unless there has been a lengthy and unexplained

delay, the Court of Criminal Appeal considering an

application for leave to amend grounds of appeal

lodged within time should, in general, grant that

application.

BRENNAN J:  Mr McMillan, it seems that Order IX rule 17

requires the notice of appeal to be in the form

found in Part IX of the schedule. That is at

page 11,116 of Carter. In Part 2 of Carter, at page 13,323, there is the form of the notice of

appeal or application for leave to appeal against a

conviction or a sentence which contains the words

relevant to the present matter, ~on the grounds

hereinafter set forth on page 2 of this notice".

So that there seems to be a requirement imposed by

the rules that notice contain the grounds.

But then, if one looks, as Mr Justice Dawson

has drawn my attention to, to the provisions of

Order IX rule 45, at page 11,138, there seem to be

powers of amendment notwithstanding noncompliance.

MR McMILLAN: That is so, Your Honour.

BRENNAN J:  Now, are there any other statutory provisions

which might bear upon this matter?

MR McMILLAN: No, Your Honour. I am unaware of any other

statutory provisions. Rule 45, in our submission,

would have no bearing on the question before this

Court because there had been a ground in the

original notice of appeal but shortly before the

hearing of the actual appeal but outside that

28 day period following conviction, the applicant

sought to substitute the ground.

DAWSON J: They sought to prosecute the appeal on grounds

which did not appear in the notice and that was a

non-compliance.

MR McMILLAN:  Yes, that is one way of putting

it, Your Honour.

DAWSON J: At all events there is a power to amend one way

or the other.

MR McMILLAN:  That is so. He cannot amend carte blanche.

He must come to the court.

Nelson	8/2/91
DAWSON J:	Power on the part of the court to give leave to

amend it.

MR McMILLAN:  Yes. The English rules relating to criminal

appeals have an express power relating to amendment

and practice in New South Wales, as we understand

it, is that amendment can be sought by an

application to the Registrar of the Court of

Criminal Appeal outside the time limited for

appeal. But there is no such provision, hence the

application that was made in this matter.

If I could just take the Court to the actual turn of events in this case. The applicant was

convicted on 3 August 1989; his notice of appeal

was lodged on 11 August 1989 with one ground in it;

the appeal record was received by the Public

Defender, the solicitors for the applicant, on

about 2 October - a matter of days before, no exact

time can be placed on it. This appears from the

affidavit of Mr Harland in support of the grant of

special leave in this Court. The record was

delivered to counsel on 2 October 1989 and counsel
informed the Director of Prosecutions on

6 October 1989 that fresh grounds would be sought

to be added. Those new grounds were delivered on

11 October 1989. There was a weekend intervening

there. The appeal came on for hearing on

12 October 1989. It was that application for leave

to add the grounds - was adjourned at the request

of the Crown and the application was heard on

16 October 1989.

As Mr Harland in his affidavit points out, in

Queensland, as soon as an appeal is filed that then commences the appeal process, a record is prepared,

and the record may take some months to be prepared.

It then is delivered to the parties involved, the

Crown and the solicitors for the appellant. Now

the system of call-overs in Queensland is such that
if a record is available or can be available during

the course of the sittings, it is set down for

hearing and it is a running list so no specific day

is appointed.

BRENNAN J:  Mr McMillan, however interesting the problems of

getting leave may be as a matter of court

arrangement, do you not have to come to grips with

the substance of this case as dealt with by

Mr Justice Thomas in his judgment, where he says

that, "Counsel are allowed to develop this

argument"? In substance what Mr Justice Thomas is

saying, as I understand him, is that there was

nothing in this proposed ground of appeal which

justified the slightest misgiving about a

miscarriage of justice. I am looking at page 177

Justice Lee agreed with that.

Nelson 6 8/2/91

MR McMILLAN:  Yes, a full argument was not permitted, if I

might indicate at this stage. Half-way down that

page, the first full paragraph at line 25 or

thereabouts:

The court permitted counsel in the present matter to develop his principal arguments, on

the basis (as it now seems to me) of his

overstrong description of the basis of the

appeal.

And he then deals with those principal arguments,

so much is conceded.

The argument which we would put before the

Court is that, on an application such as this and
considering the background of the short time

element that was involved between the date of the
original filing of the appeal and when the

application was made to amend, that it was not

incumbent upon the applicant to argue even the

principal arguments, that the correct test should

have been the test which appears in such decisions

as Bailey in this Court, (1988) 62ALJR 319, and

others which deal with the question of the

untenability of the argument. I could take the

Court to one of the decisions that we say is

relevant.

BRENNAN J: What do you say is the criteria? What is the

principle?

Mr McMILLAN: In Bailey at

BRENNAN J:  What is the principle in this case, do you say,

that should have been applied but was not applied?

Mr McMILLAN: 

The test that should have been was that the

court, after hearing short argument from both the
applicant and the prosecuting authority, if it was

satisfied that the argument to be advanced in the

additional ground was unte~able, well then it

should not have granted leave to amend.

BRENNAN J: Is that not what Justice Thomas has said?

MR McMillan: With respect, Your Honour, the test enunciated

by Mr Justice Thomas is that there is no	reason to
think that justice may have miscarried.	He says
that at line 54-55.

BRENNAN J: Well, if there is no reason to think that

justice has miscarried, it is difficult to think of

any form of words which might be more closely

equivalent to untenable.

Nelson 7 8/2/91

Mr McMILLAN:  The problem which counsel would have in

meeting that test is that the full argument could

not be developed particularly in relation to the

ground of appeal which was sought to be

substituted, namely, the unsafe and unsatisfactory

ground where full particulars had been delivered to

the Crown. The full particulars would require a

court to carefully review the evidence before

coming to a decision as to whether the verdict of

the jury was unsafe and unsatisfactory. To put to

counsel, arguing on an application such as this,

that he can develop only his principal arguments

and then come to a decision on that, that the justice has not miscarried, in our respectful submission, does not meet the issue, the point

which should have been decided, namely, was the

appeal so untenable and if that was the case then

the application should have been refused.

TOOHEY J: But what are the principal arguments that the

court permitted counsel to develop? Are they the

arguments that went to the original ground of

appeal or do they include arguments in support of

the amendments sought to be made?

Mr McMILLAN: There was no argument on the original ground

of appeal because it was not a tenable ground at

all.

TOOHEY J: Well, does that not simply point up the

difficulty that the applicant has because you

appear to be conceding that the court allowed

counsel to develop, to some extent, the arguments

that were included in the grounds of appeal sought

to be added and having heard that argument the

court was of the opinion that there was nothing

tenable in the argument and therefore it was not
appropriate to add those grounds to the notice of
appeal. Is that a fair description of what took

place?

Mr McMILLAN:  It was only the principal points that counsel

was allowed to enlarge upon. Counsel was not	permitted to go into as much, or, indeed, any
detail, as counsel would be allowed to do when
arguing the ground substantially.

TOOHEY J: But the court was obviously looking to see

whether there was anything in these grounds.

Mr McMILLAN:  That was so.

TOOHEY J:  Now, that does not require an exhaustive

examination of the grounds.	If counsel was given
the opportunity to make good	the proposition that
the grounds had something to	them; obviously

Nelson 8/2/91

failed to persuade the court to that end and so the

application was refused.

MR McMILLAN:	But on a much higher test, a far more - - -
TOOHEY J:	I do not know that it is a very high test because

if you look at line 42, Justice Thomas says:

Upon examination the submission cannot be

substantiated.

MR McMILLAN:  But an examination only of the principal

arguments, with respect.

BRENNAN J: But does this not really mean if you cannot get

the horse on its legs it is not going to win the
race and you were given the opportunity to see if

it could stand up and it did not do so?

MR McMILLAN:  All one can do is to expand on that analogy

and say that there was a case of a foal having been
got on to its feet and not the complete entire

horse. But that being so, we hear what

Your Honours are saying. But we come back and

iterate that the correct test should have been what

was laid down in Bailey and not this test of

listening to principal arguments only and then

arriving at a test as to whether those principal

arguments showed that there was a miscarriage of

justice. Two entirely different tests is what we

would say is present in the case.

BRENNAN J: Perhaps you had better refer us to Bailey and

what was said there.

MR McMILLAN: Bailey is reported at (1988) 62 ALJR 319.

DEANE J:  Mr McMillan, the appeal book indicates that

Justice Lee agreed with both lots of reasons.

MR McMILLAN:	Yes, both lots of reasons, Your Honour.
DEANE J: What, he said he agreed with both judgments?

MR McMILLAN: That is so, Your Honour. Bailey concerned an

appeal from the Court of Criminal Appeal of New

South Wales in which the question of a prisoner infected with AIDS virus and the proper sentencing factors were needed to be canvassed. This court,

by majority, considered that the ground had not

been properly looked at by the Court of Criminal

Appeal and, in the opening paragraph of the

majority judgment this appears:

Under -

the relevant section of the New South Wales Act -

Nelson 9 8/2/91

a person convicted on indictment may appeal to

the Court of Criminal Appeal with the leave of
the Court against the sentence passed on his
conviction. In contrast with special leave to

appeal, which is attracted only by some

special feature of the case, leave to appeal

is ordinarily granted when the applicant makes

out a sufficiently arguable case that the
sentence imposed is inappropriate in all the
circumstances.

This was not, of course, an application for special leave, it was only an application for leave.

McHUGH J: But this is a very different case. You are

seeking to amend a notice of appeal which is out of

time and prima facie the rules of court must be

obeyed and in order to justify a court extending

the time there has got to be some material put

before the court on which it can exercise its

discretion and when one is considering whether a

notice of appeal should be amended one has always

got to bear in mind the prospects of success on the

appeal.	And that is what the Court did in this
case.	You seem to treat the matter as though you

ought to have some automatic right of amendment.

MR McMILLAN:  Not at all, Your Honour. With respect, we

just could not support such a submission, that one

has an automatic right. One must show that there

is an arguable case, in our submission.

McHUGH J:  Is that not what you were given the opportunity

to do in the Court of Criminal Appeal?

MR McMILLAN:	The course of the conduct of the application, the hearing of the application, is set out on
page 177 of the record. In our respectful submission, it indicates that that did not occur.
If I could refer only to one other decision of this
Court, dealing with a test and it is this: it is,
the decision of the Court in Jones v Reg,
(1989) 166 CLR 409. That was an appeal from the
Court of Criminal Appeal of Tasmania and the complaint of the applicant there was that the Court
of Appeal had not addressed itself to a ground of appeal.

TOOHEY J: But that that case was concerned with grounds of

appeal properly before the Court.	How does that
help you in this case.

MR McMILLAN: If I could take the Court to page 415, the

final paragraph of the majority judgment:

No inference should be drawn from the

making of this order that this Court is

Nelson 10 8/2/91

inclined to favour any of the grounds upon

which the applicant has sought verdicts of

acquittal. What justifies the order of

remittal is not that the grounds relied upon

are correct but that they are not plainly

untenable.

My submission is that that is an analogous case.

TOOHEY J: But your difficulty, Mr McMillan, is that two

members of the court, at any rate, thought that the

proposed grounds were plainly untenable.

MR McMILLAN: Certainly, Mr Justice Thomas approached the

matter in the way he sets out at page - - -

TOOHEY J: Well, I say two members because were were told

that Justice Lee agreed with Justice Thomas.

MR McMILLAN:  Yes, I accept the majority there.

DEANE J: Perhaps the only thing you can say about that is

that if you look at the Chief Justice's judgment at

page 174, it could be said that it is inconsistent

with Mr Justice Thomas' judgment, where the

Chief Justice says:

The argument which the Court was invited to

consider wished rather to involve the Court in

appraising the reliability of that evidence.

No sufficient reason was shown why the Court

should undertake this exercise.

MR McMILLAN:  Yes. Certainly a far different approach to

the approach taken by Mr Justice Thomas.

DEANE J: So, one is left to speculate whether Justice Lee

sought to appraise the evidence to the extent that

Justice Thomas did, or whether he agreed that there

was no reason why he should undertake the exercise.

Mr McMILLAN: Well, at best, there is a grey area there

because of the way in which Mr Justice Lee gave his

confirmation of the other judgments.

BRENNAN J: There is another problem too, and that is

whether the test which the Chief Justice then

espouses, namely, no special circumstances, was

also espoused by Justice Lee. In other words,

whatever might be in the way of your argument, if

one looks simply at Justice Thomas' judgment, it

may be alleviated by - the strength of your

argument may develop if one looks at the

Chief Justice's judgment.

Mr McMILLAN:  Yes, Your Honour.

Nelson 11 8/2/91

DEANE J:  Does that not mean that we really should have

before us exactly what Justice Lee said?

Mr McMILLAN:  It would be appropriate, yes, Your Honour. I

cannot assist there. I do not have the - unless I

just pause for a moment and look at the file.

DEANE J: Is there somewhere a record of what he said?

MR McMILLAN:  Yes, there is. When the decision is brought

down, the Court Reporting Bureau publishes what

each judge has said and if there is a concurrence

by one judge, well then the exact words are taken

down and it may be just one line.

BRENNAN J:  Why is it never included in the Queensland

Appeal books, do you know?

MR McMILLAN:  One hesitates to say "because it comes from

Queensland", Your Honour, but I cannot answer that.

Certainly, this instant shows that it should be.

TOOHEY J: Well, presumably it was delivered - I mean, the

concurring judgment was delivered in writing. Even if it was only one line, would it then be included,

or is it because the concurrence was delivered

orally that it is not included?

MR McMILLAN:  Even in writing one sees a front page and it

has, "Reasons delivered by A and B, X concurring". Quite often one only sees that, but I do not know whether than has occurred in this case.

DEANE J:  Mr McMillan, if it helps, I inquired into this

about 12 months ago and I was told that the

explanation was that a concurring judgment was not
retroduced to writing, but there was only an oral

statement, which presumably is reported by court

reporting.

MR McMILLAN:  Yes, taken down on that, as I refer to it, as

a front sheet. If the judge went on and, even in

two or three lines, gave any reasons why he

concurred, well then that is taken down and is

published as a separate set of reasons. We are in

the unhappy position of not being able to supply at the moment the exact copy of the sheet on which the

various judgments are set out.

BRENNAN J: Well, perhaps we might inquire whether Mr Byrne

has it?

MR BYRNE: Unfortunately, I do not, if Your Honour pleases.

BRENNAN J: Is it obtainable?

Nelson 12 8/2/91

MR McMILLAN: Certainly it would be obtainable from the

supreme court library, Brisbane.

BRENNAN J: Well that could be done, I take it, by phone

call and by fax.

MR McMILLAN:  Yes.

BRENNAN J: Yes, Mr McMillan.

MR McMILLAN:  We certainly accept the force of what has been

said by the members of the Court so far as to the

degree to which the principal argument was dealt

with, particularly by Mr Justice Thomas. If we

could then briefly point to other matters which we say are material or should have been material to a discussion of the correct rules in exercising the

discretion here, in a general sense could I take

the Court to the matter of Hughes v National

Trustee Executors and Agency Company of Australia

Limited, (1978) VR 257.

DEANE J:  Mr McMillan, may I interrupt you to ask you a

question, and that is, you took us through the

background, by reference to Mr Harland's affidavit.

MR McMILLAN: That is so, Your Honour.

DEANE J:  Now, strictly, that affidavit is irrelevant to the

merits of this application. What is primarily

relevant is what was before the Court of

Criminal Appeal.

MR McMILLAN:  Yes.

DEANE J: Well now, do we know what was before the

Court of Criminal Appeal in relation to background

explanations and so on beyond what Their Honours

said?

MR McMILLAN:  I must give evidence myself here. I was

counsel for the applicant before the

Court of Criminal Appeal and what is put in

Mr Harland's affidavit was outlined to the Court on

the first return date of that application.

DEANE J: What, everything that appears in Mr Harland's

affidavit as to background up to that time?

MR McMILLAN:  As to the timing of when the record was

received and when the grounds were delivered, yes.

DEANE J:	And by way of explanation?
MR McMILLAN:	By way of explanation.
DEANE J:	Thank you.

Nelson 13 8/2/91

MR McMILLAN:  The Crown, in that case, did not require an

affidavit, and that is the way that it was dealt

with.

Turning to Hughes, that concerned an

application for leave to bring an appeal out of

time. Some six months had elapsed in that case and

the court there was concerned at what were the

criteria that should be looked at when the

discretion was being exercised. At page 262,

towards the foot of that page, appears this

passage:

The application for an extension of the

time for appealing invokes the power of a

judge under -

the particular order in Victoria.	Under that
order -

the power is exercisable, even after the
expiration of the time appointed, on such

terms "as the justice of the case may

require".

And there is a reference to Ratnam's case.	Then
appears this:

The object of the rule is to give the

Court a discretion to extend the time with the view to the avoidance of an injustice.

And then if we can take the Court to half-way down

that page, at line 21:

The phrase "good reason" imports, I

think, a consideration of whether justice as

between the parties is best served by granting

or refusing the extension sought. The conduct
of the applicant may here be relevant.

Obviously an applicant is less likely to be

granted an extension of time where he has

indicated that he proposes not to appeal -

and then if I could go on to line 30 -

There may, in appropriate cases, be other

factors which would establish that injustice
would be caused to the respondent if the

extension of time were granted, as for

instance, if the respondent has, on the

footing that no appeal has been instituted,

dealt ..... with assets -

and so on, which is not material to the point here.

Now, towards the foot of that page appears this at

line 50:

Nelson 14 8/2/91

It is clear, however, that whether the

applicant seeks "special leave" or merely
"leave", consideration alike of the question

of possible injustice to the applicant if the

application be refused and the judgment left

undisturbed, and of possible injustice to the

respondent resulting from the disturbance of

his seemingly vested interest in the
maintenance of the judgment involves a
consideration of the prospects of success of
the appeal if the extension be granted. For
it would be unjust to the respondent to put
him to the trouble and expense of an appeal if

the judgment sought to be attached is plainly

right -

the reference to several authorities there.	Then
appears this paragraph, the next paragraph:

From this point of view the inquiry seems

generally to have been expressed in terms

whether the judgment attacked is attended with

sufficient doubt to justify the granting of

leave.

The next authority, on this point, looking at the

civil test, is a decision of Justice McHugh in this

Court in Gallo v Dawson, (1990) 64 ALJR 458 and, in

particular, at page 459. In that case there was a

delay of some 16 months. The application was

refused but in coming to that decision Your Honour

Justice McHugh dealt with issues generally at

page 459 approximately D onwards:

The grant of an extension of time under this

rule is not automatic.

He is dealing with the rule of this Court, dealing with extensions of time -

The object of the rule is to ensure that those

Rules which fix times for doing acts do not
become instruments of injustice.	The

discretion to extend time is given for the

whole purpose of enable the Court or Justice

to do justice between the parties.

the reference to Hughes -

This means that the discretion can only be

exercised in favour of an applicant upon proof

that strict compliance with the rules will

work an injustice upon the applicant. In

order to determine whether the rules will work

an injustice, it is necessary to have regard

to the history of the proceedings, the conduct

of the parties, the nature of the litigation,

Nelson 15 8/2/91

and the consequences for the parties of the
grant or refusal of the application for

extension of time.

there is a reference to several decision there, and

finally:

When the application is for an extension of

time in which to file an appeal, it is always

necessary to consider the prospects of the

applicant succeeding in the appeal.

Now, there is no criteria set out in relation

to that fourth point about what the applicant must

show - how far the applicant must take the case.

That point, in a criminal matter, was dealt

with by the Full Court of the Supreme Court of

Victoria in O'Keefe, (1979) VR 1. That dealt with

an application by the Commonwealth Crown to appeal

against a sentence. There had been some delay -

some two and a half month's delay - in the

Commonwealth attorney signing the requisite notice

of appeal.

A general comment as to dilatoriness on the

part of an applicant is dealt with at page 5 of

that report, at line 30:

An applicant who has been dilatory or who

has acted in such a way as to indicate that he

does not intend to appeal has small if any

claim to the exercise of the discretion of the

Court in his favour. On the other hand, if

the applicant has acted promptly, his case

will be considered very differently.

TOOHEY J: It seems to me, Mr McMillan, that these cases

really offer no usefull analogy and, if anything,

they perhaps set up a hurdle for yourself. This is

a case in which the notice of appeal was filed
within time.	A lot of the considerations that go

to granting leave to appeal out of time, such as
the way in a civil action, the way in which the

parties may have organised their affairs

subsequently - - -

MR McMILLAN: That is so, Your Honour.

TOOHEY J:  - - - might bear upon the decision whether to

grant an extension of time but none of those
considerations arise here. Perhaps you could tell

us: the Crown objected to the application; on

what basis did it do so?

Nelson	16	8/2/91
MR McMILLAN:	No reasons were given.	The Crown, as to my

understanding, said, "We oppose the application."

TOOHEY J: Well, the Crown asked for the adjournment, I

understand you to say.

MR McMILLAN:  And then asked for an adjournment.

TOOHEY J: Well, now, just a moment. The matter came on for

hearing on a particular day - 12 October. Did the

Crown object to the application and then seek an

adjournment or did it seek an adjournment in order

to consider its position?

MR McMILLAN:  Not at that time. The Crown said they

required an adjournment to consider the matter as
they only had the new ground placed in their hands

the previous afternoon.

TOOHEY J:  When the hearing resumed on 16 October, what was

the attitude of the Crown?

MR McMILLAN:  The attitude of the Crown was to oppose the

application.

TOOHEY J:  On what basis? I mean, did it say that it was

simply too late or that it did not have enough time

to prepare an answer to the argument sought to be

added, or what?

MR McMILLAN:  The only response, in that respect,

Your Honour, was that it was out of time and then

I, as counsel for the applicant, was asked to

develop an argument on the principal points. So

there was no detailed reason given for this stance.

TOOHEY J: Did the court then hear from the Crown in

response to your summary, as it were, of the

grounds of -

MR McMILLAN: That is so, Your Honour, it did.

TOOHEY J: Presumably with a view to showing there was

nothing in those grounds.

MR McMILLAN:  That is so.

TOOHEY J: Yes, thank you.

RENNAN J:  It seems that Mr Justice Lee agreed with both

sets of reasons.

MR McMILLAN:  Both sets of reasons. If I could finally

turn to page 6 of O'Keefe's case because it deals

with the test which the court there laid down as

controlling the exercise of discretion. It is the

first full paragraph at approximately line 5:

Nelson 17 McMILLAN 8/2/91

There is, however, no point in granting

the extension if the sentence appears, as a
matter of first impression, to be plainly

right or unattended with sufficient doubt to

warrant its being reconsidered on appeal.

There is a reference to several well-known cases.

Then it goes on:

We are strongly of the view that on an

application for extension of time it is

desirable to observe the distinction between

an application for leave to serve notice of

appeal out of time and the actual hearing of

the appeal. In this respect we would refer to

and adopt the observations of Murphy, J. in

Niemann v Electronic Industries Ltd: "On an

application for 'leave' the Full Court ought

not, in my opinion, to be required, before

granting leave, to determine the issue in

question, or to decide whether the primary

Judge's discretion miscarried. That would be

to duplicate the work of the Court. The

requirement for leave is designed to reduce

appeals from interlocutory orders as much as

possible. If leave can only be granted,

following an examination of the merits of the

matter and a decision that the order made by

the primary Judge was 'wrong', and the matter

goes then to be decided on the merits by

another Full Court, the object of the

legislature is negated, and absurdity is the

result. It therefore appears to me that in

using the word 'wrong' in Perry v Smith and in

the Darrel Lea case, the Full Court must have

used it in a sense which included decisions

'attended with sufficient doubt', to use the

Privy Council phrase, from which decisions

substantial injustice flowed."

This Court ought not, in our view, to be

required before granting leave, to determine

the issues in question or to decide whether

the learned sentencing judge's discretion

miscarried. Of course if the Court is of the

view that the decision is plainly right there

is no point in granting leave to appeal.

Our submission is that the manner in which

particularly Mr Justice Thomas carried out the

exercise did not meet those tests. The court

sought argument on principal points and, after

hearing that and the reply from the Crown, used the

test at the foot of page 177:

There is no reason to think that justice may

have miscarried.

Nelson 18 8/2/91

TOOHEY J:  I do not think that does justice to the judgment,

Mr McMillan. That sentence does not stand on its

own. It is a conclusion from several factors, the

primary one of which is that:

Upon examination a submission cannot be

substantiated.

It was that which, as I read the judgment, led

Justice Thomas to conclude that there was no reason to think that justice may have miscarried.

MR McMILLAN:  Yes. Whichever way one looks at it,

Your Honour, what the applicant here got was not a full hearing. It was a truncated hearing on the

day. The whole of the record was not thereby

looked at and there were strong reasons why, the

merits of the case being put to one side, he should

have been allowed to amend the notice of appeal.

DEANE J: If you go back to the previous paragraph, what

would you say if one read Justice Thomas' judgment

as expressing a conclusion that the argument was

not "viable", to use His Honour's word?

MR McMILLAN:  He uses "viable", yes.

DEANE J: Could you protest or object to that?

MR McMILLAN:  We would object to that as being the proper

test, viable.

DEANE J:	Does not "not viable" mean the same thing as
"untenable"?
MR McMILLAN:	Meaning "sound", which goes further than the

O'Keefe test.

DEANE J:	Does it not mean the argument simply will not run?
MR McMILLAN:	No, with respect, Your Honour, it goes something further than that. It is not a term of
precision. That is really where the applicant
finds himself, is that it must be conceded there
was an examination. It was not simply a case of it
was rejected out of hand, that on the criteria
which should have been applied, leave should have been granted, but an examination having been
carried out, our argument in response to that is
that it was not an examination which resulted in
the proper test being applied and, therefore, that
should excite this Court to grant special leave.
If special leave is granted and the appeal is
allowed, the proper order would be to send the
matter back to the Court of Criminal Appeal and the
Court of Criminal Appeal would then be required to look at the whole of the record in terms of Morris

Nelson 19 8/2/91

to see whether the ground has been fully made out

and that is on a full appeal.

TOOHEY J: That could only follow if this Court ordered that

the Court of Criminal Appeal allow the amendment.

MR McMILLAN:  Yes.

TOOHEY J: Is that what you are asking?

MR McMILLAN: That what we are asking for.

TOOHEY J:	Not merely to send it back?
MR McMILLAN:	To send it back, yes.

TOOHEY J: With an order that the Court allow the amendment?

MR McMILLAN: That is so. Yes, there is that intermediate

step.

BRENNAN J:  And that would require us to consider whether or not the argument is viable.

MR McMILLAN: Well, we would

DEANE J: In the sense of has legs.

MR McMILLAN: Well it certainly has got to have legs, yes,

Your Honour. We have run from horses, to legs, to

viability, but I would come back to O'Keefe and say

that we only have to show that on first impression

the verdict was not plainly right or unattended

with sufficient doubt. Unless there is anything

further, those are our submissions.

BRENNAN J: Yes. Yes, Mr Byrne.

MR BYRNE:	May the Court please, I have prepared an outline.
BRENNAN J:	Mr Byrne, the Court does not require to hear you

in support of Justice Thomas' judgment.

MR BYRNE:  Thank you, Your Honour. It is the primary

submission that reading the judgments of the Court of Criminal Appeal it is clear that no

incorrect principle has been applied. The Court

generally has a discretion to allow or disallow

amendments of grounds out of time where they are

sought to be made. The court here exercised that

discretion and it is a general submission that the

discretion was exercised firstly on proper

principles and secondly correctly.

TOOHEY J: That rather begs the question, does it not, in

the case of the Chief Justice's judgment, because

he expressed it in terms that the amendment would

Nelson 20 8/2/91

be only permitted if special circumstances

justified? Is that a test that find support in any

authority?

MR BYRNE: It flows, initially, from the decision of the

Queensland Court of Criminal Appeal in Ollis v

Andersen.

McHUGH J: It is also supported by a case of Varney, is it

not, in Victoria, a judgment of Mr Justice Little?

MR BYRNE:	Yes, Your Honour. There are a number of decisions throughout the jurisdictions which state
that general principle.
DAWSON J:	What general principle?
MR BYRNE:	The general principle that the court has a

discretion.

TOOHEY J:	Nobody is arguing with that.
MR BYRNE:	I am sorry.
TOOHEY J:	The test postulated by the Chief Justice was that

special circumstances were needed to warrant the

addition of a ground of appeal or an amendment of
the ground of appeal. Is that a test that is

supported by authority?

MR BYRNE:  Yes, Your Honour. The special circumstances also

would include whether there has been a discernable

miscarriage of justice, in my submission.

DEANE J: But Chief Justice Macrossan says that where there

are no special circumstances, and the argument
involves apprising the reliability of evidence, you

do not even set out on that exercise.

MR BYRNE:  That must be read in the context that argument

was heard of the principal points by counsel for the applicant. So His Honour had the benefit of

hearing argument on those points.

BRENNAN J: But did not consider it?

MR BYRNE:  It could not be said that he did not consider it,

in our submission, Your Honour, no. It is a

submission that the special circumstances must

include whether a miscarriage can be demonstrated

or a possible miscarriage can be demonstrated.

TOOHEY J:  I just find it a little surprising, Mr Byrne,

that if the appellant in the criminal matter seeks

to add a ground of appeal or to amend a ground of

appeal which causes no difficult to the Crown in

the sense that it does not raise any substantially

Nelson 21 8/2/91

new issue or, if it does, that is you can be met by

the Crown, that the application will only be

granted if special circumstances justify it. But I

do not know what special circumstances are in that

situation.

MR BYRNE:  It is certainly consistent with the proposition

that the court - there must be some end to

proceedings. If there were unfettered amendments

allowed or additions to grounds of appeal, then the

court would be unduly fettered in exercising proper

jurisdiction.

DAWSON J: That would have some validity to the question of

extending the time to deliver a notice of appeal,
or file a notice of appeal, but there was an appeal

on foot here.

McHUGH J: In the jurisdictions there as much authority for

the proposition than if the notice of appeal is out
of time you have got to show substantial reasons,

or special circumstances, courts all over the

common law jurisdictions have said that in criminal

cases, but this is different altogether, is it not.

I mean, the Chief Justice seems to say that this

special circumstance rule applies both to appeals

out of time and to the substitution of new or

different grounds.

MR BYRNE:  Yes, the two have certainly been equated and that

flows from the decision of the Court of Criminal

Appeal, Queensland, in Ollis v Andersen, (1986)

21 A Crim R 256, particularly at 258 at the bottom

in the judgment of His Honour Mr Justice Macrossan,

as he then was. His Honour deals with Order IX of
the rules in section 671 of the Code and goes on to

say that they:

make the position clear and show that, subject

to the court's discretionary power to waive

non-compliance or to extend time, every notice

of appeal and every notice of application for

leave to appeal is to be fully filled up with

the necessary particulars, including the

grounds on which it is intended to rely. A

notice without grounds is plainly defective as

a notice and an attempt to supply grounds out

of time and an attempt to add further grounds

out of time will both call for the exercise of

the court's discretion.

TOOHEY J: Yes, but where does the expression "special

circumstances" derive from?

MR BYRNE:  "Special circumstances" is also dealt with in

that decision. The phraseology is again on that

page 258 dealing with notice of appeal out of time.

Nelson 22 8/2/91

I take the Court's point that there is a

distinction between the two but they have been

equated. At about point 2 on that page, referring

to a decision of Brown in Queensland, the phrase:

very exceptional circumstances -

is used, which I suppose is equatable to "special

circumstances".

McHUGH J:  I think it probably comes from a New Zealand

judgment in Jeffrey's in 1949 where the New Zealand

Court of Appeal said that special and substantial

reasons must be advanced.

MR BYRNE:	I am unaware of that, Your Honour.
DAWSON J:	It may be that there is an argument that the two

are to be dealt with in the same way, because the

origin of the power to deal with them is the same,

which is Order IX rule 45. There is no other power

to amend that one can find and the power to amend is found in the same rule as to that which allows

an extention of time.

MR BYRNE:  Yes. I do not shrink from the proposition that

they are equatable, Your Honour. The

Court of	Criminal Appeal of Queensland has equated
them and	there is basis for doing so.

DAWSON J: But at the same time you cannot rely on the

principle that there be an end to litigation in

relation to a refusal to amend a proceeding which

is already on foot.

MR BYRNE:  On foot on a limited or a particular basis, Your Honour. As my learned friend has properly pointed

out, this Court in the decision of Jones v Reg
dealt with the duty of the Court of Criminal Appeal

to consider grounds of appeal and there it dealt

with grounds properly raised. If there was no

limit to what "properly raised" means, then the

possibility of continually adding grounds of appeal

could be raised.

TOOHEY J: Well, there can be no argument, I think, about

the court's power to control the proceedings before

it and the discretion that exists whether or not to

allow grounds to be added or amended. The

particular aspect that we are focusing on at the

moment is the criterion of special circumstances as

the justification for amending.

MR BYRNE:  The courts have always, in our submission, looked

for some sort of special circumstances. Going back

to the decision of Wise in Tasmania, that again

deals with a notice out of time but the rationale

Nelson 23 8/2/91

there was that the court was deprived of the

benefit of the trial judge's report.	The same
would apply to new grounds added.	So there is that
also.

The Court of Criminal Appeal in Queensland has

not failed to allow amendments where it is obvious

that miscarriages of justice may have occurred. I

have pointed out some of the decisions of both that

jurisdiction and other jurisdictions in the written

outline.

TOOHEY J:	Does the practice of the trial judge reporting to the Court of Criminal Appeal still obtain in
Queensland?

MR BYRNE: It does, Your Honour, yes.

BRENNAN J: What is the interest to be served by erecting a

strict criterion for amendment of a notice of
appeal lodged within time in a case, at all events,

where the Crown is not disadvantaged?

MR BYRNE:  The first is, as I have outlined, the court being deprived of the trial judge's report.

BRENNAN J: Is it the practice in Queensland for the trial

judge's report to contain anything other than this,

"Subject to the correctness of the transcript, I

have nothing to report."

MR BYRNE:	The reports do vary, Your Honour.
BRENNAN J:	Do they vary substantially from what I have just

put to you?

MR BYRNE: Yes, they have been known to do that.

BRENNAN J:  I see.

MR BYRNE: In relation - - -

TOOHEY J: Could I just ask you one question about that,

Mr Byrne? I can see how the judge might depart

from the sort of formula that Justice Brennan has

just put to you in the case, perhaps, of

sentencing. Are you saying that additional

comments are to be found also in the courts in

regard to appeals against conviction?

MR BYRNE: Yes, I have seen them, Your Honour.

TOOHEY J: Is it explaining the direction that has been

given, or what?

MR BYRNE: Principally, it relates, for example, to local

conditions. If a ground of appeal relates for

Nelson 24 8/2/91

example to adverse publicity generated at the venue

of the trial, a trial judge has been known to report on that aspect to give an example.

TOOHEY J: Because, ordinarily, the record would speak for

itself, would it not, and the transcript of the

hearing and the judge's direction, those things are

there for the Court of Criminal Appeal to see?

MR BYRNE: Quite so, Your Honour.

DAWSON J:	And one would ask, what could the trial judge have said in this case, the amendment had been
granted -
MR BYRNE:	In relation to an unsafe and unsatisfactory

ground, probably very little.

McHUGH J:  Not necessarily. I have seen a number of reports

where a trial judge has taken the view that the

verdict was unsatisfactory and told the Court of

Criminal Appeal that.

MR BYRNE: That has also occurred in Queensland,

Your Honour, yes.

BRENNAN J: There is the question of foregoing the

opportunity or the benefit of the trial judge's

report. Is there any other purpose to be served in

adopting a strict criterion for amendment?

MR BYRNE: Apart from the matters I have already raised,

that is, as the Court has heard, an end to
litigation and the Court having some control over

their own proceedings, no, I do not believe so.

His Honour Mr Justice Thomas has also dealt

with the point in a passage the Court has not been

specifically referred to. That is at 176, the

paragraph beginning about line 45 where His Honour

states that:

Such a problem not infrequently comes

before this Court. It is not the case that
the court will undertake an examination on a

matter on the merits for the purpose of

determining whether an appellant has a

convincing case on grounds that have not

properly been raised.

And he goes on to deal with what we respectfully

submit is the correct principle.

DAWSON J: Well, what he is saying there is that the court

is not going into the whole thing. He is not going

to have the point argued in full in order to

Nelson 25 8/2/91

determine whether to grant leave to amend to

improve it. That all he is saying, is he not?

MR BYRNE: That is what he is saying and that is the

practise adopted, not only in this case, but

generally. So it is the submission that flows from that that there is no demonstrated miscarriage here

or wrong principle.

BRENNAN J: 

And if one finds a divergence between the

reasons for judgment of the Chief Justice and the
reasons for judgment of Mr Justice Thomas and is of
the view that the Chief Justice's approach is not

to be supported, what is the course which this

Court should take?

MR BYRNE: This Court has said on occasions that if there is

a divergence between members of the

Court of Criminal Appeal, that is a basis on which

special leave may be granted. It would be a

question of interpretation, we would submit, of the

Chief Justice's reasons, in this case, whether there is such a divergence of view.

DEANE J:  Or rather an interpretation of Justice Lee's

reason?

MR BYRNE: That is why I highlighted that passage of

Mr Justice Thomas' judgment. It is the submission

that flows that there is nothing inconsistent

therefore with His Honour Mr Justice Lee agreeing

with both sets of reasons.

TOOHEY J: There is a sentence in the judgment of the

Chief Justice on page 174 line 41 which really is

the culmination of his judgment:

The point however is that nothing was shown to

persuade the Court to allow its addition.

It is a bit difficult to know quite what to make of

that taken on its own. It may suggest a

consideration of some of the matters referred to by

Mr Justice Thomas or it may be simply a consequence

of applying the test for special circumstances.

MR BYRNE: That is so. There is nothing demonstratively

different in the approach. His Honour

the Chief Justice has approached it on the basis of

the need to show special circumstances, but on the

way the matter was argued before the

Court of Criminal Appeal, those special

circumstances must have included a consideration, at least, of the principal submissions supporting the new, or sought to be, new ground of appeal.

Nelson 26 8/2/91

DEANE J:  The problem about that - and what you say may well

be right - but the problem I have with it is it

seems to me that at page 174 the Chief Justice says

where the ground involves appraising the
reliability of evidence in the absence of special
circumstances, which must mean other special

circumstances outside that ground, we do not need

to engage in the exercise at all. There is not one

word in His Honour's judgment that I can see which

indicates a view that the ground was untenable.

MR BYRNE:  Nothing specifically, and in the paragraph on

that page beginning at about line 6, His Honour

deals with the argument which was placed before the

court, and that must include submissions on the

merits. His Honour adopted a similar approach in
the case of Ollis v Andersen which I have referred

to, where the merits were examined to see whether

leave should be given to amend or to add grounds.

So there is a consistency of approach.	The
judgment is quite brief.

DEANE J:  What you are saying is that in the absence of

identified plain inconsistency one reads

Justice Lee as agreeing with Justice Thomas'

assessment of the ground as not viable?

MR BYRNE: Certainly, Your Honour, yes.

DEANE J: Yes, I see that. Those are our submissions.

BRENNAN J: Yes, Mr McMillan.

MR McMILLAN:	Very briefly, Your Honours, the question of the expression "where special circumstances
justifying the application for leave" has had an
interesting history, and I would briefly refer to a
number of decisions.  The first one is the matter
of Sunderland, (1927) 28 NSWSR 26, a Court of
Criminal Appeal of New South Wales decision. In
that case, Chief Justice Street referred to an
English decision at page 27 of Rhodes, and at the
foot of page 27 sets out the gravamen of Chief
Justice Lord Alverstone's remarks -

that an extension of time will not be granted as a matter of course but that the Court will

in every case require substantial reasons to

be advanced before granting such a concession.

And there is a reference to Williams' case -

where there had been a lapse of time extending

over six months, which was sought to be

explained on -

a certain other ground.

Nelson 27 8/2/91

BRENNAN J: Is this in reply to anything?

MR McMILLAN:  Yes, it is in reply, Your Honour, to our

learned friend's submissions on that expression of

substantial or special circumstances and our

submission briefly is that the expression is

generally used in the authorities in relation to

considerable delay. In this case it is only six

weeks.

The other authority, without taking

Your Honours through it, is the matter of

Varney v Reg, (1964) VR 143. It is a single judge

decision - a decision of Mr Justice Little - and

particularly at page 144.

Finally, a decision of the Court of Criminal

Appeal in Queensland, in Reg v Trew,

(1979) Qd R 29. It is a short judgment but, in

essence, the court there was confronted with a

delay of 11 months and it was in that context that

the court referred, at page 30, to Varney and used

the expression:

The principle that there must be shown

satisfactory, substantial reasons is well

established.

Our submission is that there was no lengthy or

substantial delay in this case which would warrant
the use of that expression, "special
circumstances". It could only apply where there

has been lengthy delay. It was not a proper test

which was used by either the Chief Justice or

Mr Justice Thomas. Those are our submissions.

BRENNAN J: Yes. The Court will adjourn until 2 pm.

AT 12.55 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM: 

BRENNAN J: It is difficult to envisage circumstances in

which a Court of Criminal Appeal could, in the
absence of some reason such as inordinate delay or

prejudice to the Crown properly refuse leave to

amend a regularly filed notice of appeal so as to

add a tenable further ground of appeal.

If the judgment of Chief Justice Macrossan, in the present case, is read as laying down as a

Nelson 28 8/2/91

general rule that the Queensland Court of Criminal

Appeal should not, in the absence of special

circumstances, grant leave to amend a regularly

filed notice of appeal so as to add a ground

requiring an appraisal of the reliability of

evidence, even if it appears that that proposed additional ground is a tenable one, we consider

that His Honour was in error in that regard. It is

not, however, necessary to pursue that question for

the purposes of disposing of the present

application.

The Court of Criminal Appeal heard argument on

behalf of both the applicant and the Crown on the question of whether the proposed ground of appeal

was a tenable one. Mr Justice Thomas clearly

indicated a conclusion that the proposed ground was

not a viable or tenable one. His decision that
leave to amend should be refused turned on his
conclusion in that regard. In that context, we
consider that Mr Justice Lee's expression of

be understood as indicating agreement with

agreement with the reasons of both

Mr Justice Thomas' conclusion that the proposed

ground of appeal was not a viable or tenable one.

In the light of that conclusion of the

majority of the Court of Criminal Appeal, leave to

amend was correctly refused.

Special leave to appeal from the order of the

Court of Criminal Appeal is, therefore, refused.

AT 2.03 PM THE MATTER WAS ADJOURNED SINE DIE

Nelson 29 8/2/91