R v Andrews

[2005] SASC 107

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v ANDREWS

Judgment of The Honourable Justice Gray

24 March 2005

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES

Application to re-open an appeal to the Court of Criminal Appeal - applicant convicted of murder by jury verdict - appealed conviction to Court of Criminal Appeal -  appeal dismissed - applicant applied to the High Court for special leave to appeal - application was dismissed.

Grounds advanced by applicant - whether evidence wrongly admitted - whether trial judge misdirected jury - directions about lies - directions on manslaughter - directions about the applicant not giving evidence.

Discussion of jurisdiction to re-open appeal - consideration of 352 of the Criminal Law Consolidation Act 1935 (SA) - no express power to re-open an appeal after disposition on merits - consideration of principles articulated in Grierson [1938] 60 CLR 431 and affirmed in Postiglione v The Queen (1987) 189 CLR 295 - consideration of exceptions to general rule - discusssion of principle of finality.

Held - no case of fraud or lack of procedural fairness identified - appeal previously disposed of on merits - application for leave to re-open appeal dismissed.

Criminal Law Consolidation Act 1935 (SA) s 352, referred to.
R v Andrews [2002] SASC 233; R v Edwards (No 2) [1931] SASR 376; Grierson v The King [1938] 60 CLR; Postiglione v The Queen (1987) 189 CLR 295; R v Brain (1999) 74 SASR 92; R v Preston [2004] SASC 77; Pantorno v The Queen (1989) 166 CLR 466; Simring v Registrar, Court of Criminal Appeal [2004] NSWSC 297; R v Gam (No 2) [2004] VSCA 117, considered.

R v ANDREWS
[2005] SASC 107

Application for Leave to Appeal

GRAY J:

Introduction

1. This is an application to re-open an appeal to the Court of Criminal Appeal.  At times the application has been advanced as an application for leave to appeal.  However, in substance it is an application to re-open an appeal that has been finalised.

2. The applicant, Robert Andrews, was convicted by jury verdict of murder on 11 April 1996.  He appealed against this conviction to the Court of Criminal Appeal.  The applicant complained about the admission of out of court statements of the victim and the directions in relation to this evidence, the seizure of evidence during the police investigation, the directions on manslaughter, the directions about the applicant not giving evidence and the directions in relation to lies.  This appeal was dismissed on 23 July 2002. [1] 

   [1]  R v Andrews [2002] SASC 233

3. The applicant applied to the High Court for special leave to appeal.  This application was dismissed on 11 April 2003. [2]  The applicant has now applied to re-open his appeal in this Court. 

   [2]  High Court Transcript 11 April 2003

4. The grounds advanced to support this application can be summarised 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.

   Jurisdiction to Re-Open an Appeal

5. Central to the determination of this application is whether the Court has jurisdiction to re-open an appeal in these circumstances or to entertain a second appeal.

6. Section 352 of the Criminal Law Consolidation Act 1935(SA) establishes a right of appeal in criminal cases and relevantly provides:

   (1)     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 the leave of the Full Court or on the certificate of the court of trial that it is a fit case for appeal;

   …

7. There is no express power in these provisions to entertain a second appeal.  Further, there is authority to suggest that the court has no power to permit a second appeal after the disposal of an appeal on its merits.  For example, in R v Edwards (No 2)[3] the Court observed:

   … The right of the appellant, under this section, to appeal, has been exercised. There is no express power to entertain a second appeal, or to hear a second application for leave to appeal, and there is no precedent in either case for its being done. There can be no doubt that the court has power to entertain a second application for leave to appeal, at any rate where it has not heard the merits of the application. ...

   ...

   Before the passing of the Criminal Appeals Act 1924, a man who had been convicted, though in truth he were innocent, had no alternative but to apply for clemency under the Royal prerogative of mercy. Then came a time when, in order to prevent miscarriages of justice, a right of appeal was given, and it was given as a right on questions of law, but subject to leave on questions of fact. But there might be cases, despite an appeal having been heard, where justice requires some further investigation, and in order to meet such cases in South Australia, the power was entrusted to the Chief Secretary to make a proper investigation of any petition presented to him for mercy, and if after such proper investigation was made he obtained the concurrence of the Attorney-General, he could transmit it to this Court, which would then be clothed with power to reopen the matter.

   The court went on to consider the consequences of a determination that the Court had jurisdiction to entertain further appeals from time to time after the first appeal had been dismissed. It said that such a practice or procedure “would lead to manifest inconvenience and possibly great absurdity”.

   [3] [1931] SASR 376 at 378 - 380

8. The court’s decision in Edwards was approved by the High Court in Grierson v The King.[4]  The legislation under consideration in Grierson was the Criminal Appeal Act 1912 (NSW), which was similar in all relevant respects to the South Australian legislation.

   [4] [1938] 60 CLR 431

9. In Grierson the appellant’s appeal against conviction was dismissed and his application for special leave to appeal to the High Court was refused.  The appellant then attempted to re-open his original appeal or obtain leave to bring a fresh appeal before the Court of Criminal Appeal.  He asserted in his application that “certain material facts had become known respecting the evidence of one of the material witnesses for the Crown in the trial”.

10. In Grierson, Jordan CJ of the New South Wales Court of Criminal Appeal observed:[5]

    The point which has been raised is exactly covered by the decision … in R v Edwards (No 2) and I am of the opinion that this Court should follow that decision. When an appeal has once been fully heard and disposed of that is, in my opinion, an 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 to his legal advisers or whenever a new fact is alleged to have come to light. This does not mean that injustice must necessarily occur when new substantial evidence pointing to the prisoner’s innocence is discovered after his appeal is finally disposed of. In such a case recourse may be had to section 26 of the Criminal Appeal Act 1912, or to section 475 of the Crimes Act 1900. There is no reason to suppose that the procedure provided by those sections is not adequate for the consideration of any matter which it may now be sought to raise on behalf of the prisoner.

    [5] (1937) 54 WN (NSW) 144

11. The High Court upheld the refusal of the Court of Criminal Appeal to re-open the appeal.  Dixon J observed:[6]

    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 than the statute confers.  The Criminal Appeal Act of 1912 (NSW) is based upon the English Act of 1907.  It does not give a general appellate power in criminal cases exercisable on grounds and by a procedure discoverable from independent sources.  It defines the grounds, prescribes the procedure and states the duty of the court.  The statute deals with criminal appeals rather as a right or benefit conferred on prisoners convicted of indictable offences and sets out the kind of convictions and sentences from which they may appeal and lays down the conditions on which they may appeal as of right and by leave and the procedure which they must observe.  It limits the time within which appeals and applications for leave to appeal may be brought, subject, however, to a discretionary power in the court to extend the period except where the sentence is capital.  The grounds or principles upon which the court is to determine appeals are stated, and the duty is imposed on the court of dismissing an appeal, unless on those principles it determines that it should be allowed.  The determination of an appeal is evidently definitive, and a conviction unappealed is equally final.  No considerations controlling or affecting the conclusion to be deduced from these provisions are supplied by analogous civil proceedings.  Appeal is not a common-law remedy, and proceedings at law are only subject to that remedy by statute ...

    [6] (1938) 60 CLR 431 at 435

12. The principles articulated in Grierson have remained unchallenged and were affirmed by the High Court in Postiglione v The Queen[7], where it was held that an appellate court could not entertain a second appeal when the first had been heard and determined on its merits and an order had been perfected.[8]

    [7] (1987) 189 CLR 295

    [8] As observed in R v Preston [2004] SASC 77 there are examples of the application of Grierson’s case in most jurisdictions: R v McNamara [1997] 1 VR 257; Matta v The Queen (WA) (1995) 126 FLR 127; R v Saxon (1998) NSW SC 115; R v Smith (No 2) [1969] Qd WN 10. The decision has also been applied by this court on a number of occasions for example see The Queen v Shannon (1982) 32 SASR 5; R v Caruso (1988) 49 SASR 465; R v Keogh (No 2) (unreported 13 May 1997, BC 9701803) and R v Brain (1999) 74 SASR 92.

13. In R v Brain[9] the South Australian Court of Criminal Appeal considered the application of the principles articulated in Edwards, and affirmed Grierson.  Doyle CJ observed:[10]

    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) ... 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 of New South Wales in Saxon ... .  I agree with the approach taken in those decisions.

    [9] (1999) 74 SASR 92

    [10] (1999) 74 SASR 92 at 100

14. Limited exceptions to the general rule discussed above have been recognised.  In R v Preston Duggan J described these exceptions as follows:[11]

    -filing of a notice of abandonment: - in some jurisdictions filing a notice of abandonment results in a dismissal of the appeal.[12]  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.

    -procedural fairness: - in circumstances where an applicant an applicant asserts that he or she has been denied procedural fairness, the Court may further consider the matter.[13]

    [11] [2004] SASC 77 at [12] – [17]

    [12] See R v Moore [1957] 1 WLR 841 at 842

    [13]  For example see Pantorno v The Queen (1989) 166 CLR 466

15. The procedural fairness exception was considered by the High Court in Pantorno v The Queen.[14]  In that case, 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 came 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 that drug.

    [14] (1989) 166 CLR 466

16. The High Court concluded 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 observed:[15]

    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.

    [15] (1989) 166 CLR 466 at 484

17. These comments were referred to by the High Court in Postiglione.[16]  In that case the appellant and a co-accused were charged with two counts of conspiring to import narcotic drugs into Australia.  The appellant pleaded guilty and was sentenced to a term of imprisonment.  He appealed against the sentence to the Court of Appeal but the appeal was dismissed.  The co-accused then stood trial and was convicted and sentenced.  The appellant then applied for leave to appeal to the Court of Appeal on the ground of disparity between his sentence and that of the co-accused.  Leave to appeal was granted and the appeal dismissed.  The appellant then sought leave to appeal to the High Court.  Dawson and Gaudron JJ observed:[17]

    If a final order was made perfecting the decision of the Court of Criminal Appeal on Postiglione’s first application, the assumption of 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 the merits and finally determined. A fortiori, in a case where what is involved is the hearing of a second appeal ... . Pantorno does not suggest otherwise. The view was expressed in Pantorno that an intermediate court of appeal can entertain an application to remedy a denial of procedural fairness whether or not its order has been perfected ... . Nothing was said as to the jurisdiction of an appellate court to entertain a second appeal when the first has been heard and determined on the merits and an order perfected.

    [16] (1997) 189 CLR 295

    [17] (1997) 189 CLR 295 at 300

18. The matter was then remitted to the Court of Appeal to be dealt with in accordance with the decision of the High Court.  Hunt CJ of the Court of Appeal observed:[18]

    In the High Court, it was held by majority (Kirby J dissenting) that, where an appeal has been heard by this Court on its merits and the order of the Court has perfected, this Court has no jurisdiction to hear a second appeal, although that Court confirmed the limited opportunity to have the first appeal re-opened where there has been a denial of procedural fairness in the hearing of that first appeal.  An argument based upon disparity with a sentence imposed after the first appeal has been heard on the merits would not demonstrate a denial of procedural fairness in that first appeal.  It was because the High Court was unable, upon the material before it, to determine whether the order of this Court in relation to the first appeal, heard on 13 December 1993, had been perfected that the matter was remitted to this Court.

    [18]  R v Postiglione (Court of Criminal Appeal, 4 December 1997, unreported)

19. The above-mentioned authorities affirm the importance of finality of an appeal process.  This principle is recognised in all Australian States and Territories by legislative provisions that provide procedures for enquiries after conviction in appropriate cases after the usual appeal rights have been exhausted.  When considering whether to re-open an appeal or to hear an appeal a second time, the need for finality is a fundamental consideration.  This was recently emphasised by Duggan J in Preston.  His Honour pointed out that the existence of “new” grounds for appeal, or previous grounds articulated differently, of itself would not constitute sufficient grounds for re-opening the matter:[19]

    It must follow from the reasoning of the court in Grierson that it matters not whether the application to re-open an appeal or seek a second appeal is based on grounds which were not argued at the hearing of the original appeal.  The language of the legislation, its purpose and the procedures which it provides, including a post-conviction enquiry ordered by the executive, lead to the conclusion that there can be only one appeal on the merits.  The appellate procedure cannot be re-opened simply because other arguments occur to an appellant or his legal advisers after the delivery of judgment and the perfection of the appeal.  Nor does it make any difference that the application is based on a claim of fresh evidence.  This was the basis of the applications which were rejected in Grierson (new facts becoming known in relation to a material witness) and Edwards (No 2) (fresh evidence which it was claimed would have proved that the applicant was not guilty).  The powers of the Full Court in relation to the reception of fresh evidence assume the existence of a valid appeal.

    [19] [2004] SASC 77 at [24]

20. Since the decision of Preston, the courts have emphasised the need for finality in the appeal process.[20]  For example, in Simring v Registrar, Court of Criminal Appeal[21], the New South Wales Supreme Court considered an application to appeal to the Court of Criminal Appeal a second time, after an appeal to the Court of Criminal Appeal and an application for special leave to appeal to the High Court had been dismissed.  The unrepresented applicant sought to raise grounds that could have been, but were not, raised in the original appeal.  The applicant sought to distinguish Grierson on the basis that the grounds that he sought to raise were different to those previously relied upon.  The application was dismissed.  Simpson J observed:

    It might be true that these grounds were not raised in the earlier appeal, but that does not mean that the merits of the plaintiff’s appeal have not been finally determined by the judgment of the Court of Criminal Appeal. Accordingly, it is correct, as the plaintiff has been told, that the Court of Criminal Appeal has no jurisdiction to entertain the appeal he now seeks to bring.

    [20]  For example see El-Masri v Minister for Immigration & Multicultural & Indegenous Affairs [2004 FCA 742; Simring v Registrar, Court of Criminal Appeal [2004] NSWSC 297; R v Gam (No 2) [2004] VSCA 117; R v Michael Leonard Reardon [2004] NSWCCA 197.

    [21] [2004] NSWSC 297

1. The Victorian Court of Criminal Appeal considered the principle recently in the matter of R v Gam (No 2)[22].  That case concerned an application for extension of time in which to file and serve a notice of appeal against conviction. The application stated that the conviction and a dismissal of his appeal against conviction by the Court of Appeal had been procured by fraud, and that the fraud alleged consisted of false evidence given at trial by the complainant.  The complainant recanted her allegation by way of statutory declaration after the court dismissed the appeal against conviction.

   [22] [2004] VSCA 117

2. The Director of Public Prosecutions informed the Court in Gam (No 2) that when the Office of Public Prosecutions was alerted to the complainant’s statutory declaration, the police had made investigations resulting in a further written statement in which the complainant stood by her allegations at trial.  Affidavits with annexures were put into evidence to this effect.  Also annexed to one of the affidavits was a statement by the complainant’s sister saying that the complainant had told her that she had been pressured to make the allegations that she had made.  The Court held that it had no jurisdiction to entertain the application.  Winneke P delivered the leading judgment and observed:[23]

   I do not regard the emphasized comments made by this Court in R v McNamara as indicating that this Court has the power, in circumstances such as those existing in this case, to re-open the conviction application at the instance of the applicant. Although the words of qualification in the first paragraph of the passage cited suggest that an application or appeal which has been determined on its merits might be re-opened in the presence of “fraud”, it is apparent from the context of the judgment, and the authorities referred to, that the circumstances to which the Court was referring were those which have been applied where the Court allows a prisoner to withdraw a notice of abandonment which, by virtue of the Rules, is deemed to be the dismissal of the appeal. Various courts, both in England and Australia, have spoken of the “very restricted circumstances” in which appeals which have been abandoned might be re-opened, even though no appeal has been heard on its merits. However, the authorities (to which I will refer) demonstrate that, whilst an abandoned appeal might be re-opened where the abandonment has been procured by fraud or procedural error or mistake, the hearing and disposal of an appeal or application on its merits renders the Court functus officio.

   …

   Insofar as the words cited by this Court in R v McNamara (No 2) .. suggest that such an appeal, or application, decided on its merits, can be reopened in consequence of fraud or procedural mistake, it seems to me that the Court may have overstated the principle which, so the authorities suggest, is only applied to grants of leave to withdraw notices of abandonment. … In any event, the application which was brought to this Court by GAM in December of last year was decided, as the rules provide, on the material placed before the Court. In those circumstances, and for reasons to which I have previously adverted, I find it difficult to conclude that the appellate process was vitiated by fraud, using that term in its relevant sense. It could scarcely be suggested that, because there is “fresh” material reflecting on the truth and accuracy of the complainant’s evidence at trial, either the trial or the appeal was a “nullity”.

   [23] [2004] VSCA 117 at [12], [21]

3. Winneke P later noted that there have been some qualifications read into the seemingly strict approach in Grierson, in particular the discretion to look at the matter afresh where there has been a denial of procedural fairness in a Court of Criminal Appeal.  Winneke P rejected the applicant’s argument that a distinction should be drawn between the power of an appellate court to re-open a criminal appeal which has been dismissed on the merits and an application for leave which has been refused after argument on the merits. He also rejected an argument that the Court’s capacity to re-open the application, or to hear a further application, so as to receive “fresh evidence” demonstrating a miscarriage of justice, ought not be frustrated because of the time at which the evidence becomes available.  Winneke P observed:[24]

   The short answer to these submissions, in my view, is that the Court’s powers under s 574 of the Act to receive fresh evidence presupposes the existence of a competent application or appeal; it is not an independent “trigger” of a further appeal or application. Secondly, the Court’s power to re-open an appeal or application which has been determined on the merits is exhausted once that determination has been perfected. The limits derive from the construction of the statutory provisions found in Pt VI of the Crimes Act, including as they do the “prerogative powers” contained in s 584. The applicant is not without remedy because he can petition under that section.

   [24] [2004] VSCA 117 at [40]

   Consideration of the Present Application

4. In the present case the applicant has appealed his conviction to the South Australian 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 now articulated.  The Court of Criminal Appeal dismissed the appeal.  The High Court refused leave to appeal. 

5. 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.

6. 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.

7. 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. 

8. This application is dismissed.