R v Andrews
[2012] SASC 78
•11 May 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v ANDREWS
[2012] SASC 78
Judgment of The Honourable Justice Nyland
11 May 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN NO APPEAL LIES
Application to re-open appeal – Applicant convicted of murder by jury verdict – prior appeal to Court of Criminal Appeal dismissed – application for special leave to High Court refused – prior application to re-open appeal dismissed – multiple grounds advanced to re-open appeal including complaint about DNA evidence.
Discussion of jurisdiction to re-open appeal – s 352 Criminal Law Consolidation Act 1935 (SA) – no express power to re-open appeal after disposition on merits – discussion of the principle of finality in appeal process – whether exceptions to the rule against finality apply in this case.
Held – no power for this Court to re-open a dismissed appeal – no procedural irregularity or unfairness identified – appeal heard on its merits and order of Court of Criminal Appeal perfected – application refused.
Criminal Law Consolidation Act 1935 (SA) ss 352, 353; Criminal Appeal Act 1912 (NSW) ss 23, 26, referred to.
Grierson v The King (1938) 60 CLR 431; Postiglione v The Queen (1997) 189 CLR 295, applied.
R v Andrews [2005] SASC 107; R v Keogh [2007] SASC 226; R v Andrews (No 2) [1931] SASR 376; R v Grierson (1937) 54 WV (NSW) 144; R v McNamara (No 2) [1997] 1 VR 257; R v Brain [1999] SASC 358; The Queen v Shannon (1982) 32 SASR 5; R v Caruso (1988) 49 SASR 465; R v Preston [2004] SASC 77, considered.
R v ANDREWS
[2012] SASC 78
NYLAND J: Robert James Andrews (“the Applicant”) was charged with the murder of Christine Fay Jenkins on 18 December 1994. He pleaded not guilty and his trial proceeded before a jury. He was represented by counsel at the trial. On 11 April 1996 the jury returned a verdict of guilty of murder. On 2 September 1996 the Applicant was sentenced to life imprisonment with a non-parole period of 22 years.
On 9 February 2000 the Applicant filed an application for leave to appeal against his conviction. The delay in filing the application, and in the determination of it, was largely attributable to the fact that throughout most of that period the Applicant was acting in person.
On 7 September 2001 a single Judge refused the application for an extension of time and for leave to appeal against the conviction. Permission was subsequently granted on 20 November 2001 by a Court of Criminal Appeal sitting in private. On 23 July 2002, by majority, the Court of Criminal Appeal dismissed the appeal. On 11 April 2003 an application for special leave to appeal was refused by the High Court. The applicant was represented by counsel on the hearing of the appeal to the Court of Criminal Appeal, as well as on the application for special leave to the High Court.
On 6 December 2004 the Applicant filed a further application for leave to appeal against conviction. That application was heard by Gray J who indicated that although it was described as an application for leave to appeal, in substance it was an application to re-open an appeal that had been finalised.
The Applicant was unrepresented at the hearing before Gray J and primarily relied on a written outline of argument in support of his application. On 24 March 2005 Gray J dismissed the application.
On 13 February 2012 the Applicant filed the present application which, consistently with the view of Gray J, I treat as a further application to re-open an appeal which has been finalised. The matters raised by the Applicant on this application appear to be substantially the same as those considered by Gray J, who summarised the grounds advanced to him at the earlier hearing as follows:
- the conviction gives rise to a miscarriage of justice, both from a failure of the prosecution and the applicant’s then counsel to call witnesses who could give relevant evidence, and the applicant being discouraged by his former counsel from having an interpreter to help him in his case;
- there was an error in the presentation of DNA evidence;
- the trial judge erred in his direction in relation to the applicant’s failure to give evidence;
- counsel for the prosecution misled the jury during her final address;
- evidence adduced from the police investigation was unreliable;
- further relevant evidence ought to be considered, including evidence of injuries sustained by the victim and relationship evidence.
All of those grounds, with the possible exception of the DNA issue, appear to be similar to grounds canvassed in the earlier appeal to the Court of Criminal Appeal in 2002. Nevertheless, the Applicant once again seeks to re-argue issues affecting his 1996 conviction.
The Applicant was unrepresented at the hearing of the present application. In the course of the hearing I endeavoured to ascertain whether there were any matters now raised which had not been the subject of earlier hearings. There did not appear to be any new matters, but the Applicant indicated that Gray J had not had the benefit of all relevant documents. He then provided the court with two folders of what were described as Exhibit documents. Those folders contain a mixture of material, such as parts of the transcript from the trial, declarations of trial witnesses, as well as correspondence and advice from various people about the Applicant’s conviction and possible appeal.[1] In my view, none of that material takes the matter any further. However the file also includes copies of correspondence post-dating the hearing before Gray J on the topic of DNA evidence. I should therefore say something about that.
[1] The Applicant also forwarded additional document to the Court following the appeal hearing, to which I have had regard.
The case against the Applicant at trial was circumstantial. Part of that case related to evidence that the deceased had been vaginally and anally penetrated at about the time of her death, together with evidence of complaints made by the deceased concerning the Applicant’s demands upon her for anal intercourse. However, on the defence case, there were other men in the deceased’s life with whom she had a sexual relationship, one of whom might have been the person who had sex with her at about the time of her death and had killed her.
In the course of the trial the prosecution called evidence from Ms K Williams, a forensic scientist, who had performed some tests on the vaginal washings of the deceased. Ms Williams’ evidence was that she located a low level of sperm in the sample taken. However, she did not attempt to carry out a DNA test because there were a large number of epithelial cells present in the sample and these swamped the typing. She said:
… I only saw one or two sperm on a number of samples that I looked at under the microscope as compared to many, many, many hundreds and hundreds of other cells which were likely to have come from Ms Jenkins … so … I made the decision that there was no point in doing any testing.[2]
[2] Trial transcript 661.
However, as I understand the Applicant’s current argument, because of the improvement in DNA technology over the years, the sample should now be tested for DNA and this would establish that he was not the donor of the sperm. That would therefore prove that someone other than him was the person who engaged in a sexual act with the deceased at about the time of her death. In that way, the DNA evidence would exculpate him from the guilt of this crime.
The sample appears to have been retained. There is a large amount of correspondence in the folders provided by the applicant, relating to his efforts to have it re-tested. However, it includes advice to the effect that a DNA profile might not be able to be obtained at this late stage due to the nature of the sample, the length of time it has been stored and the fact that during that time it may have been thawed and re-frozen. There is also a substantial fee attached to such testing, which I understand the Applicant is unable to pay. That leaves the present application in something of an impasse. The Applicant does not bring this present application on the basis of available fresh evidence which exculpates him, but rather in the belief that there is a possibility of such evidence being obtained. Even if there was positive evidence available at this stage which raised a doubt about the safety of his conviction, the Applicant would still have to establish that the circumstances provide the Court with jurisdiction to re-open his appeal or entertain a second appeal.
Jurisdiction to re-open an appeal
In South Australia, the right of appeal in Criminal cases is conferred by s 352 of the Criminal Law Consolidation Act 1935 (“CLCA”) which provides:
S 352-Right of appeal in Criminal cases
Appeals lie to the Full Court 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 leave of the Full Court or on the certificate of the court of trial that it is a fit case for appeal;
…
The grounds on which the court may allow or dismiss an appeal are set out in s 353(1) which provides:
S 353-Determination of appeals in ordinary cases
(1) The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regards to the evidence, or that 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 that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the if it considers that no substantial miscarriage of justice has actually occurred.
…
As can be seen, there is no express power under the provisions of the CLCA to re-open a dismissed appeal or to entertain a second appeal.
This was an issue addressed in considerable detail by Gray J with respect to the Applicant’s 2005 application.[3] More recently, the power was discussed by the Court of Criminal Appeal in R v Keogh.[4]For the benefit of the Applicant, who is unrepresented, I will re-state some of the principles established by the authorities.
[3] R v Andrews [2005] SASC 107.
[4] [2007] SASC 226.
In R v Edwards (No 2)[5] the South Australian Court of Criminal Appeal held that if this Court has jurisdiction to entertain further appeals from time to time after the dismissal of an appeal, it would lead to manifest inconvenience and possibly great absurdity.[6]
[5] [1931] SASR 376.
[6] Ibid at 380.
The decision in Edwards was approved by the High Court in Grierson v The King.[7]The legislation under consideration in that case was the Criminal Appeal Act 1912 (NSW), the provisions of which in substance are the same as the appeal provisions in the CLCA. Grierson has since been treated as authorative by the High Court and State Courts.
[7] (1938) 60 CLR 431.
In Grierson the Appellant appealed against his conviction to the NSW Court of Criminal Appeal. That application was dismissed. The High Court then refused special leave to appeal against the conviction. After four years, the Appellant applied to the Supreme Court to re-open his appeal, or for leave to bring a fresh appeal. It was asserted that fresh evidence concerning a material Crown witness had become known. The Court of Criminal Appeal followed Edwards and refused the application as it considered it had no jurisdiction to allow it. Jordan CJ observed:[8]
When an appeal has once been fully heard and disposed of, that is, in my opinion, the end of the matter so far as appeal is concerned, and the prisoner cannot continue to appeal from time to time thereafter, whenever a new point occurs to him or his legal advisers or whether a new fact is alleged to have come to light.
[8] (1937) 54 WV (NSW) 144.
The other members of the Court agreed with this statement.[9]
[9] (1937) 54 WV (NSW) at 432.
The High Court subsequently upheld the refusal of the NSW Court of Criminal Appeal to re-open the appeal. Rich J held:[10]
…the jurisdiction of the Court of Criminal Appeal is confined within the limits of the Act and that when the court has heard an appeal on its merits and given its decision the appeal cannot be reopened.
Further, Dixon J said at 436:
The Supreme Court held, in accordance with a decision of the Supreme Court of South Australia (R v Edwards [No 2])…, that a second appeal from a conviction could not be entertained after the dismissal, upon the merits, of an appeal or application for leave to appeal and that the first appeal could not be reopened after a final determination.
In my opinion this conclusion is correct. The jurisdiction is statutory, and the Court has no further authority to set aside a conviction upon indictment that that statute confers … The determination of an appeal is evidently definitive, and a conviction unappealed is equally final.
[10] (1938) 60 CLR 431 at 434.
The principles established in Grierson were further considered and upheld by the High Court in Postiglione v The Queen.[11] Postiglione dealt with sentencing principles, in particular the question of parity of sentencing. The High Court confirmed that an appellate court could not entertain a second appeal when the first had been heard and determined on its merits and the order had been perfected.
[11] (1997) 189 CLR 295.
In their joint reasons in Postiglione, Dawson and Gaudron JJ referred to the power of the court to entertain a second appeal and said:[12]
If a final order was made perfecting the decision of the Court of Criminal Appeal on Postiglione’s first application, the assumption of the jurisdiction to entertain his second application and the ensuing appeal was contrary to the decision of this Court in Grierson v The King. It was held in that case that the Criminal Appeal Act 1912 (NSW) does not confer jurisdiction to re-open an appeal which has been heard on its merits and finally determined.
[12] Ibid at 300.
In R v McNamara (No 2)[13]the Victorian Court of Criminal Appeal reviewed the existing case law, and concluded (at 268) that absent fraud or some fundamental procedural mistake, once an order dismissing an appeal had been perfected, the Court had no power or jurisdiction to entertain a further appeal, or to re-open the hearing of the appeal.
[13] [1997] 1 VR 257.
The Court in McNamara made it clear that if there were further matters that could or should have been argued, but were not, then that did not indicate that an appeal had not properly been argued on its merits.[14]
[14] [1997] 1 VR 257 at 264.
In R v Brain[15] the South Australian Court of Criminal Appeal reviewed the case law, which included a discussion of Edwards (No 2). Doyle CJ (with whom Bleby and Wicks JJ agreed) concluded that that once an order dismissing an appeal against conviction or an appeal against sentence had been perfected, there was no jurisdiction to re-open hearing of the appeal, or to entertain a further appeal.[16]
[15] [1999] SASC 358.
[16] Ibid - Doyle CJ at [45-55].
In his reasons Doyle CJ said that the approach taken by the Court in Brain was determined by the decision in Grierson. Doyle CJ referred to the following decisions of this Court which established the principles of finality: R v Edwards (No 2),[17] The Queen v Shannon,[18] R v Caruso[19] and R v Preston.[20] Doyle CJ observed at [56]:
It would be inconsistent with the cases referred to above to assert a general jurisdiction to reopen an appeal, once the appeal has been finally disposed of. To assert such a jurisdiction would mean that there is no real finality. In R v McNamara (No 2) [1997] 1 VR 257 the Court of Appeal of Victoria rejected a submission that there was a general, albeit exceptional, power to reopen an appeal although the appeal had been finally disposed of. So did the Court of Criminal Appeal in New South Wales in Saxon (1998) 101 A Crim R 71 in particular at 76-81. I agree with the approach taken in those decisions.
[17] [1931] SASR 376.
[18] (1982) 32 SASR 5.
[19] (1988) 49 SASR 465.
[20] [2004] SASC 77.
In R v Preston, the Appellant attempted to raise numerous matters which arose both before and after the trial. The Court followed the decision in Brain. Duggan J said at [19]:
In the present case it is apparent that the applicant’s original appeal was dealt with on the merits. Numerous grounds of appeal were raised and argued by senior counsel on the applicant’s behalf. The fact that different grounds are raised subsequently does not mean that the original appeal was not argued on its merits: R v McNamara (No 2); R v Saxon. (footnotes omitted)
Duggan J (with whom Bleby and Sulan JJ agreed) concluded that it made no difference to the application of the principle in Grierson that the application to re-open the argument on the appeal was based on a claim of fresh evidence.[21]
[21] [2004] SASC 77 at [26].
However, Duggan J recognised that there were two limited exceptions to the rule of finality which he described as follows, at [12-13]:
There are some limited exceptions to the general rule. The filing of a notice of abandonment in some jurisdictions results in a dismissal of the appeal. In certain exceptional cases, the courts have permitted the withdrawal of such a notice, but not where there has been a deliberate abandonment of an appeal: R v Moore [1957] 1 WLR 841 at 842. A further exception was suggested by the High Court in Pantorno v The Queen (1989) 166 CLR 466. The applicant for special leave to appeal was sentenced under drugs legislation which provided that, in the circumstances of that case, a lower maximum penalty than would otherwise apply comes into effect “where the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose relating to trafficking in the drug”.
The High Court reached the conclusion in Pantorno that, as a result of a combination of circumstances, the applicant had not been given the opportunity before the sentencing judge or the Court of Criminal Appeal to give evidence as to the purpose for which he was in possession of the drug. This had led to a denial of procedural process. After deciding that the matter should be remitted to the sentencing court for further consideration, Deane, Toohey and Gaudron JJ said at (484):
“There is one further matter which should be mentioned. It is that the application for special leave to appeal to this Court was argued on the basis that, once judgment had been delivered by the Court of Criminal Appeal or (at the latest) once the judgment had been perfected, the jurisdiction of that Court was exhausted. In a case such as the present where there has been an inadvertent denial of procedural fairness in a criminal matter by a Court of Criminal Appeal, it would ordinarily be preferable that the matter be dealt with by further application to that Court.”
The present application does not appear to come within either of the exceptions discussed by Duggan J. Since Preston, Courts have made it clear that an emphasis must be placed on the need for finality in the appeal process.
When dismissing the Applicant’s earlier application to re-open his appeal, Gray J said at [24-28]:
In the present case the applicant has appealed his conviction to the South Australian Supreme Court of Criminal Appeal and then sought leave to appeal to the High Court. A number of grounds then advanced are similar to the grounds not articulated. The Court of Criminal Appeal dismissed the appeal. The High Court refused leave to appeal.
No case of fraud or lack of procedural fairness has been identified. The fact that the applicant now seeks to present a perceived new complaint or a variation of some earlier complaint does not mean that his earlier appeal was not disposed of on the merits.
As emphasised by the authorities, even the existence of “new” or differently expressed grounds for appeal will not warrant the re-opening of an appeal or the hearing of an appeal for a second time. The applicant asserts that further evidence ought to have been presented at trial. However, something more must be shown to justify a reconsideration of the appeal. The existence of further or new evidence of itself does not constitute an exception to the fundamental principle of finality.
On the basis of the papers that have been presented by the applicant and the submissions advanced, there are no matters that would indicate any procedural irregularity or unfairness that would warrant the hearing of a second appeal before this Court. There was an appeal on the merits and the decision of the Court of Criminal Appeal was perfected.
As earlier mentioned, the power of a court to re-open an appeal was more recently considered by the South Australian Court of Criminal Appeal in R v Keogh.[22] Mr Keogh applied to re-open an appeal which had been heard and dismissed. The application to was made to a differently constituted court from that which had dismissed the earlier appeal. It was asked to consider further submissions based on the record of the trial and further material which had not been before the previous Full Court. However, the Court applied Grierson and held that it was deprived of jurisdiction to re-open the hearing of the appeal or to entertain a second appeal. In his reasons, Doyle CJ (with whom Bleby and Sulan JJ agreed), once again reviewed the relevant authorities, which included a reference to his comments in R v Brain and said at [93]:
In my opinion the decisions by State Courts do not support the existence of a power to reopen a dismissed appeal … in any event this Court is bound by the High Court authority to so decide. It is for the High Court to decide if the principle in Grierson should be relaxed.
[22] [2007] SASC 226.
In this case, the Applicant has not produced any evidence to bring him within the exceptions to the rule against finality. There are no matters which indicate any procedural irregularity or unfairness with respect to his trial that would support the hearing of a second appeal by this Court. The appeal was heard on its merits and the order of the Court of Criminal Appeal dismissing it was perfected. This application is therefore dismissed.
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