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
Continue reading Perre v The King
Sign in free to access the full text
- AGLC
- Perre v The King [2023] SASCA 55
- Case
- [2023] SASCA 55
- Decision Date
CaseChat Overview and Summary
The legal issue before the Court was whether the applicant's statutory right of appeal survived their death, thereby allowing the appeal to be continued and determined by the Court.
The Court reasoned that statutory rights of appeal are generally personal and, in the absence of specific legislative provision to the contrary, abate upon the death of the appellant. The Court contrasted this with provisions in other jurisdictions, such as New South Wales and Queensland, which expressly permit appeals to be heard and determined notwithstanding the death of the convicted person, often in circumstances where the Attorney-General refers the case to the Court. The Court found that the relevant South Australian provisions under the Criminal Procedure Act (CPA) did not contain such a saving provision.
Accordingly, the Court concluded that the statutory right of appeal died with the applicant and therefore could not be continued or determined. The application for permission to appeal was dismissed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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.