Perre v The King - [2023] SASCA 55

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
PERRE v THE KING
[2023] SASCA 55
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
25 May 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
The applicant died after his application for permission to appeal against a conviction for murder under ss 157 and 158 of the Criminal Procedure Act 1921 (SA) (the CPA) was heard by the Court of Appeal over four days in February 2023.
By that application the applicant only sought an acquittal.
When notifying of his client’s death, the applicant’s solicitor sought direction from the Court. At a subsequent hearing, neither counsel for the applicant nor the Director argued against the dismissal of the application. Whilst the position is settled in other jurisdictions, it does not appear to have been considered by this Court having regard to the terms of the CPA.
Held: (the Court) dismissing the application for permission to appeal against conviction:
1.The statutory right of appeal conferred by ss 157 and 158 of the CPA is personal to “the convicted person”. Apart perhaps from cases involving a pecuniary penalty, the personal representative of the deceased applicant’s estate has no proper interest in that right of appeal.
2.In consequence, from the time of the convicted person’s death the Court no longer has jurisdiction to proceed and determine the application or the appeal whether or not permission has been granted and regardless whether argument has been heard and judgment is reserved.
3.There is in any event no basis in ss 157 and 158 of the CPA, whether in the text or the statutory context, to suggest that there exists a discretion by which the Court of Appeal might decide to proceed and determine the appeal. On the death of the applicant, the Court cannot exercise any discretion to proceed because it no longer has jurisdiction.
4.Observations made about the contrasting language of s 173 of the CPA, under which the Attorney-General may on receipt of a petition for mercy make one of three references to the Court of Appeal which may be heard and determined notwithstanding the death of the convicted person.

Criminal Procedure Act 1921 (SA) ss 157, 158, referred to.
Bell (deceased) v The State of Western Australia [2015] WASCA 236; Quartermaine v The Queen [2002] WASCA 345; R v Chardon (2020) 6 QR 656; R v Jefferies [1968] 1 QB 120; R v Kearley (No 2) [1993] WLR 555; R v Kearley, deceased (by his agent, Brian Sharman) [1994] 2 AC 414; R v Maguire [1992] QB 936; R v Rimon (deceased) (2003) 6 VR 553; R v Rowe [1955] 1 QB 573; Re Conviction of McDermott (2013) 303 ALR 143; Roe (dec’d) v The State of Western Australia [2017] WASCA 218; Sen v R (1991) 102 ALR 71; Singh v The Queen (2020) 94 ALJR 714; TWM v R [2018] NSWCCA 276, considered.

PERRE v THE KING
[2023] SASCA 55
Court of Appeal – Criminal: Livesey P, Bleby and David JJA
THE COURT:
Introduction

By Notice of Appeal dated 20 July 2022, amended on 14 October 2022, the applicant sought permission to appeal against conviction pursuant to s 157(1)(a)(ii) of the Criminal Procedure Act 1921 (SA) (the CPA).
The application was made on the ground that the applicant’s conviction for murder, which was entered following a trial “by the judge alone” pursuant to s 7(1) of the Juries Act 1927 (SA), “is unreasonable or cannot be supported having regard to the evidence” within s 158(1)(a) of the CPA.
The Court heard argument from the parties over four days between 16 and 21 February 2023 and reserved its decision. On 9 May 2023, the solicitor for the applicant advised the Court that the applicant had died earlier that day. He sought further direction from the Court.
The issue is whether this Court has jurisdiction to determine the appeal notwithstanding the applicant’s death. For the following reasons, this Court does not have jurisdiction because on the death of the applicant his appeal rights abated. The application for permission to appeal must be dismissed.
The death of the applicant
At a hearing on 12 May 2023 the interests of the deceased appellant and, presumably, his personal representative, were represented by counsel who had appeared at the hearing in February 2023. This was without objection from counsel for the Director of Public Prosecutions (SA) (the Director). There was no dispute that the applicant had died, and a Death Report to the Coroner (Medical Practitioner’s Deposition) dated 9 May 2023 was tendered by the Director without objection.
As the Coroner will conduct an inquest into what was a death in custody, some delay before production of the death certificate is anticipated. Neither counsel for the deceased applicant nor for the Director opposed this Court proceeding before the death certificate is produced to the Court.
The Director submitted that the Court must dismiss the appeal on the ground that the jurisdiction of the Court to determine the appeal ceased upon the death of the applicant.[1] With the reservation that the relevant proceeding to be dismissed was an application for permission, this course was not opposed by counsel for the deceased applicant.[2]
[1] The Director cited R v Chardon (2020) 6 QR 656, [28], where the appellant died after argument was heard: “The appropriate order is to dismiss the appeal against conviction and the application for leave to appeal against sentence on the ground that the Court’s jurisdiction to determine the appeal and application ceased upon the death of the appellant.”
[2] Counsel for the applicant cited Singh v The Queen (2020) 94 ALJR 714, where the appellant died after the hearing at which orders were sought quashing the conviction and ordering a retrial. As “[n]o other order is appropriate”, special leave to appeal was revoked.
Does this Court have jurisdiction to continue?
The authorities in relation to this issue in other jurisdictions appear to be settled. The provisions conferring a right of appeal which are comparable to s 157 of the CPA refer to “the convicted person”. Because the right is personal to “the convicted person” it cannot be taken up by an executor or personal representative and, on the death of the appellant, any appeal right abates.[3] Accordingly, the right of appeal may be said to have died with the appellant.[4]
[3] R v Kearley (No 2) [1993] WLR 555 (Lord Taylor of Gosforth CJ) and R v Kearley, deceased (by his agent, Brian Sharman) [1994] 2 AC 414, 422 (Lord Jauncey of Tullichettle).
[4] R v Kearley, deceased (by his agent, Brian Sharman) [1994] 2 AC 414, 422 (Lord Jauncey of Tullichettle).
That has been the approach taken under the English legislation from which provisions such as s 157 of the CPA have been drawn.[5] Whilst that approach has been consistently applied by intermediate Australian appellate courts,[6] it does not appear to have been considered by this Court having regard to the terms of the CPA.
[5] Criminal Appeal Act 1907 (UK), s 3; Criminal Appeal Act 1968 (UK), ss 1 and 9 and R v Jeffries [1969] 1 QB 120, 124 (Widgery LJ).
[6] See Sen v R (1991) 102 ALR 71 (Morling, Neaves and Foster JJ); Quartermaine v The Queen [2002] WASCA 345 (Parker J, Hasluck J and Olsson AUJ); R v Rimon (deceased) (2003) 6 VR 553 (Winneke P, Vincent and Eames JJA); Re Conviction of McDermott (2013) 303 ALR 143 (Bathurst CJ, Hall and Button JJ) and Bell (deceased) v The State of Western Australia [2015] WASCA 236 (McLure P, Buss and Mazza JJA).
The authorities
The cases usually commence with R v Jefferies, where the applicant sought leave to appeal against conviction and sentence for conspiring to cheat and defraud, where he was sentenced to 30 months’ imprisonment and ordered to pay £1,300 towards prosecution costs.[7] The applicant died before the application was heard and his widow and executrix sought leave to continue.
[7] R v Jefferies [1968] 1 QB 120 (Sachs and Widgery LJJ and Lyell J).
The Court of Appeal dismissed the application. In giving judgment for the court, Widgery LJ referred to s 3 of the Criminal Appeal Act 1907 (UK) which, like the CPA, confers the relevant right of appeal on “a person convicted”. With no authority on point, his Lordship referred to observations made by way of obiter, such as the view of Lord Goddard CJ that a widow might have an interest in an appeal where “a person is sentenced to pay a fine and dies having appealed”, but not so as to clear his name.[8] Notwithstanding this example of potential “injustice”, the court rejected the proposition that there was any right in the personal representatives of the deceased applicant:[9]
Whatever may be the powers of courts exercising a jurisdiction that does not derive from statute, the powers of this court are derived from, and confined to, those given by the Criminal Appeal Act of 1907. We take it to be a general principle that whenever a party to proceedings dies, the proceedings must abate, unless his personal representatives both have an interest in the subject-matter and can by virtue of the express terms of a statute (or from rules of court made by virtue of jurisdiction given by a statute) take the appropriate steps to have themselves substituted for the deceased as a party to the proceedings. Although in this case the estate would benefit if the widow were allowed to continue the appeal and were successful, there is no procedure whereby she can be substituted as an appellant and we do not see how there can be an inherent power in the court to allow this when the appeal is itself the creature of statute.
[8] R v Rowe [1955] 1 QB 573, 574-575 (Lord Goddard CJ).
[9] R v Jefferies [1968] 1 QB 120, 124 (Widgery LJ).
In R v Maguire the Court of Appeal relied on the different wording of the applicable provision to find that the Secretary of State could refer a matter for consideration by the Court of Appeal notwithstanding the death of the convicted person.[10]
[10] R v Maguire [1992] QB 936.
Subsequently, in R v Kearney (No 2) the Court of Appeal,[11] and then the House of Lords,[12] expressly followed the ruling of Widgery LJ in R v Jefferies.[13] In the House of Lords, Lord Jauncey echoed the concern of Lord Goddard that there could be injustice where the deceased person’s estate was obliged to “suffer a wrongly imposed pecuniary penalty”.[14]
[11] R v Kearney (No 2) (1993) 1 WLR 555 (Lord Taylor of Gosforth CJ, with whom Schiemann and Wright JJ agreed).
[12] R v Kearney, deceased (by his agent, Brian Sharman) [1994] 2 AC 414 (Lord Jauncey of Tullichettle).
[13] R v Kearney, deceased (by his agent, Brian Sharman) [1994] 2 AC 414, 422 (Lord Jauncey of Tullichettle), following the ruling of Widgery LJ “with his far greater experience in these matters”.
[14] R v Kearney, deceased (by his agent, Brian Sharman) [1994] 2 AC 414, 422-423 (Lord Jauncey of Tullichettle).
In Sen v R the Full Court of the Federal Court followed R v Jefferies in confining any right of appeal against conviction and sentence to the person convicted even though the appeal provision in s 24(1) of the Federal Court of Australia Act 1976 (Cth) was expressed in general terms and was not confined to “the convicted person”.[15] The Full Court accepted that the correctness of a conviction could nonetheless be examined under s 475 of the Crimes Act 1900 (NSW) in its application to the ACT where, “because of the discovery of fresh evidence or for other reasons, doubt arises as to guilt.” In circumstances where it was not suggested that the outcome of the appeal would have any effect on the appellant’s estate, the Court found that the relevant right abated on death and it dismissed the appeal.
[15] Sen v R (1991) 102 ALR 71, 73 (Morling, Neaves and Foster JJ).
In Quartermaine v The Queen the Court of Criminal Appeal of Western Australia followed, amongst others, Sen v R in finding that the right of appeal conferred by s 688 of the Criminal Code (WA) (now repealed) abated where the person convicted died before his application for leave to appeal could be heard. The Court dismissed the application.[16]
[16] Quartermaine v The Queen [2002] WASCA 345, [4]-[5] (Parker J, Hasluck J and Olsson AUJ). See also Johnson v Lapham (1992) 6 WAR 359, 364 (White J).
Following the passage of new appeal legislation, the same approach was again taken by the Court of Appeal of Western Australia in Bell (Dec’d) v The State of Western Australia, where the offender died before his appeal against sentence could be heard.[17] The relevant right of appeal was conferred on the “offender convicted of an offence” under s 23(1)(b) of the Criminal Appeals Act 2004 (WA). As McLure P explained:[18]
Section 23(1)(b) of the Criminal Appeals Act is the source of the appellant's right of appeal to this court. It is a personal, statutory right. There is no statutory provision extending the right to any other person. In the circumstances, on the appellant's death, no‑one has standing to conduct the appeal against his sentence of imprisonment, whether for or on behalf of the appellant or otherwise. That conclusion is supported by the statutory scheme as a whole.
Section 31(5) contains this court's powers in the event it allows an appeal against sentence. The court may impose a new sentence that is either more or less severe, or send the charge back to the court that imposed the sentence to be dealt with further. Neither option is arguably appropriate in circumstances where the appeal relates to a term of imprisonment imposed on an offender who is deceased.
[17] Bell (Dec’d) v The State of Western Australia [2015] WASCA 236, [12] (McLure P, with whom Buss and Mazza JJA agreed).
[18] Bell (Dec’d) v The State of Western Australia [2015] WASCA 236, [9]-[10] (McLure P, with whom Buss and Mazza JJA agreed).
That decision was followed in Roe (dec’d) v The State of Western Australia.[19]
[19] Roe (dec’d) v The State of Western Australia [2017] WASCA 218 (Buss P, Mazza and Beech JJA).
In The Queen v Rimon, where the applicant died before his application for leave to appeal conviction and sentence could be heard, the Victorian Court of Appeal also followed the R v Jeffries approach:[20]
Section 567 of the Crimes Act 1958 confers the right to appeal or make application upon “a person convicted on indictment”, and there is nothing in the Rules which would suggest that the right which the Act confers applies to a personal representative. On the contrary, the provisions of the Crimes Act and their tenor make it appear that the right of appeal is strictly personal to the person convicted. This was, and is, a view adopted in England, where the right of appeal is cast in the same terms as the right of appeal in this State. Indeed, the provisions of s 567 of the Crimes Act derive from the Criminal Appeal Act 1907 (UK), s 3.
[20] The Queen v Rimon (deceased) (2003) 6 VR 553, [4] (Winneke P, with whom Vincent and Eames JJA agreed).
This same approach was recently taken in R v Charndon, where the Queensland Court of Appeal construed the rights of appeal against conviction and sentence under s 668D of the Criminal Code (Qld) as personal to “the person convicted”:[21]
The evident purpose of the provisions for appeals against conviction in Ch 67 is to supply a remedy to a person whose conviction involves a miscarriage of justice. That purpose is implemented in part by imposing upon the Court an obligation to decide in each appeal against conviction which of an acquittal or a new trial is the more appropriate remedy for a miscarriage of justice found to have been suffered by the convicted person, a remedial choice that would be artificial in a case in which the appellant has died. Other provisions we have mentioned assume that the appellant is the person who was convicted of the offence. The provisions of the Chapter concerning appeals against conviction appear to be consistent only with the right of appeal and the Court’s power to determine such an appeal not surviving the death of the person who was convicted.
The provisions concerning appeals against sentence seem consistent with the same conclusion. Upon the death of an appellant who was sentenced to imprisonment (as in this case), the statutory remedy of quashing the sentence and passing a different sentence in substitution therefor would be meaningless; the right of appeal against a sentence of imprisonment and the Court’s power to make orders in such a case could not survive the appellant’s death.
[21] R v Charndon (2020) 6 QR 656, [11]-[12] (Fraser and Mullins JJA and Applegarth J).
That was a case where the appellant was found not guilty by a jury of murdering his wife but guilty of manslaughter. The appellant was sentenced to imprisonment for 15 years. He appealed against conviction and sought leave to appeal against sentence. After the appeal was heard, but before the Court had delivered its decision, the appellant died.
The solicitor who had acted for the appellant was instructed by the appellant’s adult daughters to contend that the Court should give judgment on the merits. After the Court invited argument, their position changed and they withdrew their instructions. They indicated that they would no longer act as the appellant’s executors. They and others were the primary beneficiaries under the appellant’s will. However they were also the primary beneficiaries, with the appellant, of the will of the appellant’s deceased wife. The solicitor had not spoken with the children about the appeal or their parent’s estates, though he held both wills. He had been told that the children would not speak with the solicitor or any other lawyers “because of the likely trauma involved”.[22] The solicitor and counsel were given leave to appear as amici curiae.
[22] R v Charndon (2020) 6 QR 656, [3] (Fraser and Mullins JJA and Applegarth J).
The Court of Appeal was referred to TWM v R, where N Adams J had observed, but did not decide, that where an appellant was alive when the appeal was heard and nothing more was required of the appellant, the right of appeal may not abate.[23] The Court of Appeal did not regard this decision as “authority on the point”.[24]
[23] TWM v R [2018] NSWCCA 276, [74] (N Adams J).
[24] R v Charndon (2020) 6 QR 656, [21] (Fraser and Mullins JJA and Applegarth J).
Similarly, it doubted the Canadian approach which, in R v Smith, had recognised the existence of a discretion to exercise jurisdiction following death. The Court of Appeal held that this approach could not be applied in Queensland where neither the source of the discretionary power nor the factors by which it was to be exercised could be found in the Criminal Code.[25]
[25] R v Charndon (2020) 6 QR 656, [22] (Fraser and Mullins JJA and Applegarth J), citing R v Smith [2004] 1 SCR 385, 390 (Binnie J): the discretion “should be exercised only in exceptional circumstances where the death of the appellant is survived by a continuing controversy which … requires resolution in the interests of justice”.
The Court rejected the suggestion that “the forfeiture rule” represented a potential basis for contending that the deceased appellant’s personal representatives had an ongoing interest in the appeal:[26]
The forfeiture rule is the only suggested basis for thinking that the appellant’s personal representatives might have a legal interest of the kind adverted to in Rowe and Sen as possibly preventing abatement of the appeal upon the appellant’s death. The sentence imposed upon the appellant is irrelevant to that topic. As to the conviction appeal, a conviction is not a criterion of the operation of the forfeiture rule and nor does an acquittal operate as an estoppel precluding reliance upon the forfeiture rule in a civil proceeding.[27] The forfeiture rule is incapable of giving the appellant’s personal representative a legal interest in the subject matter of his appeal or his application.
[26] R v Charndon (2020) 6 QR 656, [24] (Fraser and Mullins JJA and Applegarth J).
[27] Helton v Allen (1940) 63 CLR 691, 710 (Dixon, Evatt and McTiernan JJ); see also Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352, 371 [32] (French CJ, Hayne, Kiefel, Bell and Keane JJ); Wiedenhofer v Commonwealth (1970) 122 CLR 172, 175-176 (Gibbs J); and Harvey v Attorney-General (Qld) (2011) 220 A Crim R 186, 188-189 [10]-[11] (McMurdo P) and at 194-195 [32] (Boddice J, White JA agreeing).

Finally, the Court of Appeal found it unnecessary to decide whether there was “any procedural mechanism” by which the deceased’s personal representatives could be heard if, contrary to its conclusion, they had an interest in the appeal. The Court found that its jurisdiction ceased upon death and dismissed the appeal against conviction and the application for permission to appeal against sentence.
References to the Court of Appeal
The authorities have generally drawn a distinction between the statutory appeal rights of a convicted person and the different terms in which legislation permits the Executive to refer a matter to the appeal court. For example, the Full Court in Sen v R accepted that a reference could be made under the Crimes Act 1900 (NSW) notwithstanding the death of the convicted person. In the matter of The Queen v Rimon the Court left to one side and did not determine what might occur on a “reference” to the Court from the Executive Government concerning the exercise of the prerogative of mercy pursuant to, for example, s 584 of the Crimes Act 1958 (Vic) (now repealed).[28]
[28] The Queen v Rimon (deceased) (2003) 6 VR 553, [5] (Winneke P, with whom Vincent and Eames JJA agreed). See Criminal Procedure Act 2009 (Vic) s 327.
However in Re Conviction of McDermott the Court of Criminal Appeal of New South Wales considered Sen v R and The Queen v Rimon before holding that the Court could entertain a reference from the Attorney-General made under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) notwithstanding the death of the convicted person. The relevant conviction had been entered in 1947, following a Royal Commission the convicted person was released in 1952, and he had died in 1977. The relevant provision was as follows:
77—Consideration of petitions
(1)     After the consideration of a petition—
(a)     the Governor may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or
(b)     the Attorney General may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912, or
(c)     the Attorney General may request the Court of Criminal Appeal to give an opinion on any point arising in the case.
On receipt and consideration of a petition from “the convicted person or by another person on behalf of the convicted person” under s 76, the Executive had power under s 77 to direct an inquiry and the Attorney had power to refer or request.
As with the approach taken in England in R v Maguire, the Court construed s 77 as conferring it with power to deal with the case as if it were an appeal under the Criminal Appeal Act 1912 (NSW), notwithstanding the death of the convicted person.[29] The Court found that this was consistent with the purpose of the provisions, enabling it to remedy injustices that cannot be addressed by the normal appellate process.[30]
[29] Re Conviction of McDermott (2013) 303 ALR 143, [13]-[22] (Bathurst CJ, with whom Hall and Button JJ agreed).
[30] Re Conviction of McDermott (2013) 303 ALR 143, [23]-[24] (Bathurst CJ, with whom Hall and Button JJ agreed).
Similarly, in R v Charndon the Court of Appeal followed Re Conviction of McDermott and contrasted the appeal power conferred by s 668D with the power conferred on a Crown Law Officer under s 672A of the Criminal Code (Qld) to refer a petition for the exercise of the pardoning power to the appeal court. A reference could therefore be made on the application of the deceased appellant’s personal representatives notwithstanding the death of the appellant.[31]
[31] R v Chardon (2020) 6 QR 656, [5] and [27] (Fraser and Mullins JJA and Applegarth J).
The South Australian provisions
Because the relevant appeal rights are entirely statutory, it is necessary to commence with the terms of the CPA. The relevant parts of ss 157 and 158 of the CPA are as follows:
157—Right of appeal in criminal cases
(1)     Appeals lie to the Court of Appeal as follows:
(a)     if a person is convicted on information—
(i)the convicted person may appeal against the conviction as of right on any ground that involves a question of law alone;
(ii)the convicted person may appeal against the conviction on any other ground with the permission of the Court of Appeal or on the certificate of the court of trial that it is a fit case for appeal;
(iii)subject to subsection (2), the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the permission of the Court of Appeal …
…
158—Determination of appeals in ordinary cases
(1)The Court of Appeal, on any such appeal against conviction, will only allow the appeal if it thinks that—
(a)     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
(b)     the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c)     on any ground there was a miscarriage of justice.
(2)The Court of Appeal may, notwithstanding that it is of the opinion that the point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
(3)Subject to the special provisions of this Act, the Court of Appeal will, if it allows an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial.
(4)On an appeal against acquittal brought by the Director of Public Prosecutions, the Court of Appeal may exercise any 1 or more of the following powers:
(a)     it may dismiss the appeal;
(b)     it may allow the appeal, quash the acquittal and order a new trial;
(c)     it may make any consequential or ancillary orders that may be necessary or desirable in the circumstances.
(5)If the Court of Appeal orders a new trial under subsection (4)(b), the Court—
(a)     may make such other orders as the Court thinks fit for the safe custody of the person who is to be retried or for admitting the person to bail; but
(b)     may not make any order directing the court that is to retry the person on the charge to convict or sentence the person.
(6)If an appeal is brought against a decision on an issue antecedent to trial, the Court of Appeal may exercise any one or more of the following powers:
(a)     it may revoke any permission to appeal granted by the court of trial;
(b)     it may confirm, vary or reverse the decision subject to the appeal;
(c)     it may make any consequential or ancillary orders that may be necessary or desirable in the circumstances.
(7)Subject to subsection (8), on an appeal against sentence, the Court of Appeal must—
(a)     if it thinks that the sentence is affected by error such that the defendant should be re‑sentenced—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for re‑sentencing; or
(b)     in any other case—dismiss the appeal.
As with the English decisions since R v Jefferies and the Australian decisions since Quartermaine v The Queen and The Queen v Rimon, the relevant appeal right is conferred on “the convicted person”.[32] Depending on the course of the application for permission or the appeal, as the case may be, the Court of Appeal may:
1.Dismiss the application or the appeal.
2.Grant permission (if it is required) and, if it allows the appeal, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial (s 158(3)).
3.Grant permission and, if it allows the appeal, quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (s 158(7)).
[32] Leaving to one side appeals by the Director, which need not be considered in this case.
Save perhaps in cases involving some form of pecuniary penalty, it is difficult to see how the personal representative of the deceased appellant’s estate could assert a proper interest in an appeal against conviction or sentence under ss 157 and 158 of the CPA.
By r 23.3 of the Joint Criminal Rules 2022 (SA), where the informant dies the Court may substitute another informant. Perhaps unsurprisingly, no provision is made for the death of the convicted person.
Where the only order sought by the applicant is, as in this case, an acquittal there is no basis to find that anyone apart from “the convicted person” has a proper interest in the right of appeal conferred by ss 157 and 158 of the CPA.[33]
[33] The usual alternative of orders quashing the conviction and ordering a new trial were not explicitly sought in this case.
There is no reason for this Court to depart from the view consistently expressed since R v Jeffries and since followed in Australia: the statutory right of appeal under the CPA is personal to “the convicted person” and, on death, that right abates and the Court no longer has jurisdiction to continue and determine the appeal. From the time of the convicted person’s death the Court no longer has jurisdiction whether or not permission has been granted and regardless whether argument has been heard and judgment is reserved.
There is in any event no basis in ss 157 and 158 of the CPA, whether in the text or the statutory context, to suggest that there exists a discretion by which the Court of Appeal might decide to proceed and determine the application for permission or the appeal. On the death of the applicant or appellant, the Court cannot exercise any discretion to proceed because it no longer has jurisdiction.
The language and structure of ss 157 and 158 may be contrasted with the language and structure of s 173 of the CPA, under which the Attorney-General may on receipt of a petition for mercy make one of three references to the Court of Appeal:
173—References by Attorney-General
(1)Nothing in this Part affects the prerogative of mercy but the Attorney‑General, on the consideration of any petition for the exercise of Her Majesty’s mercy having reference to the conviction of a person on information or to the sentence passed on a person so convicted, may, if the Attorney‑General thinks fit, at any time, either—
(a) refer the whole case to the Court of Appeal, and the case must then be heard and determined by that Court as in the case of an appeal by a person convicted; or
(b) refer any point arising in the case to those judges for their opinion and those judges, or any 3 of them, must consider the point so referred and furnish the Attorney‑General with their opinion accordingly.
(2)If a full pardon is granted to a convicted person in the exercise of Her Majesty's mercy in relation to a conviction of an offence, the Attorney‑General may refer the matter to the Court of Appeal and the Court of Appeal may, if it thinks fit, quash the conviction.
It can be seen that the relevant right of referral vests in the Attorney-General, not the convicted person. In addition, on a referral of the whole case to the Court of Appeal, “the case must then be heard and determined … as in the case of an appeal by a person convicted” (s 173(1)(a)) or, alternatively, on the referral of any point the judges of the Court of Appeal, or any 3 of them, “must consider the point so referred and furnish the Attorney‑General with their opinion accordingly” (s 173(1)(b)). Finally, in the event of a full pardon, the Attorney may refer the matter for consideration as to whether, if the Court of Appeal thinks fit, the conviction should be quashed (s 173(2)).
It is not necessary to reach any conclusion in the circumstances of this case regarding the breadth of the jurisdiction conferred by s 173 of the CPA.
Nonetheless, it is difficult to see why this Court should take a view different to the views taken in Re Conviction of McDermott and in R v Charndon: on a reference from the Attorney-General, the Court of Appeal must determine the reference regardless whether the person convicted is already dead or dies before the reference is heard and determined. That seems particularly clear where a point is referred under s 173(1)(b) or a full pardon has been granted and the question whether to quash the conviction is referred under s 173(2) of the CPA. Where the whole case is referred under s 173(1)(a), that the Court must hear and determine it “as in the case of an appeal by a person convicted” does not mean that it becomes an appeal under ss 157 and 158 of the CPA. Rather, the Court proceeds as if it were an appeal under those provisions.
This conclusion appears to accord with the text and purpose of s 178 of the CPA as well as the public role associated with the office of the Attorney-General.[34] One can readily conceive of cases where the Attorney might determine that there is a public interest in having a longstanding controversy quelled or a disputed point heard and determined by the Court of Appeal even where the convicted person has died.
[34] Bradley Selway, The Constitution of South Australia (Federation Press, 1997), [6.5]ff.
Conclusion
In the circumstances of this case, where the fact of death is not in dispute and the applicant only sought an acquittal, the abatement of the right of appeal means that it cannot be continued or determined in this Court. The statutory right of appeal died with him.
It follows that this Court must dismiss the application for permission to appeal. Accordingly, the order of the Court is that the application for permission to appeal conviction is dismissed.