R v McRae - [2013] SASCFC 89

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Application)
R v MCRAE
[2013] SASCFC 89
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Nicholson)
5 September 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - ABANDONMENT OF APPEAL
CRIMINAL LAW - EVIDENCE - HEARSAY - PARTICULAR MATTERS - TELEPHONE CALLS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - NOTICES OF APPEAL - TIME FOR APPEAL AND EXTENSION THEREOF
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Upon trial by jury, the applicant was convicted of two counts of aggravated serious criminal trespass in a place of residence, one count of aggravated causing harm with intent to cause harm, two counts of theft and one count of damaging property. He was sentenced to imprisonment for eight years, two months and nine days (taking into account time already served and a period of unexpired parole) with a non-parole period of four years.
The prosecution case was that the applicant broke into two residential houses with two other men. One Saunders, pleaded guilty to the charges. The identity of the third man was never ascertained. The case against the applicant was wholly circumstantial. DNA matching his DNA was found on a number of items in Saunders' car which was found abandoned near the second house after having been involved in an accident. Such DNA was also found on a cigarette butt some 15-20 metres from the car, the prosecution case being that the applicant had smoked a cigarette at some distance from the car. A large number of calls were made from a mobile phone associated with the applicant to various phone numbers, including to numbers associated with his then girlfriend and his identical twin, Adam McRae. The timing and geographical origins of the earlier calls were consistent with a person travelling towards the area of the offences. A later spate of calls made from the area of the second offence was consistent with the getaway vehcile having been rendered undrivable and its occupants calling for assistance. The applicant asserted that the prosecution had failed to negative the hypothesis that the applicant had left his mobile phone in Saunders' car; that the relevant calls were not made by him; and that his twin brother Adam McRae had been among the men in the car and was responsible for the relevant deposits of DNA. As part of its evidence, the prosecution relied on an unannounced phone call later made by a police officer to the phone number associated with Adam McRae, during which the recipient identified himself as "Adam McRae".
The applicant initially appealed against his convictions but his solicitor later filed a Notice of Abandonment of Appeal. The applicant subsequently sought permission to withdraw the Notice of Abandonment and to substitute amended proposed grounds that (1) the evidence of the recipient of the telephone call identifying himself as "Adam McRae" was inadmissible hearsay, and (2) that the jury's verdicts were unreasonable. He also sought an extension of time within which to seek permission to appeal against sentence.
Held (Peek J; Stanley J and Nicholson J agreeing, dismissing the applications):
(1) Permission to withdraw the Notice of Abandonment refused. The correct approach to such an application considered. [20]-[53].
(2) An important matter here is that the proposed grounds of appeal against conviction have no merit. [53].
(3) As to ground one, the telephone call evidence was admissible as an item of circumstantial evidence (to be taken with the rest of the circumstantial evidence) from which it could be inferred that the number dialed was associated with a person called Adam McRae. [47].
(4) As to ground two, an independent assessment of the evidence disclosed that the verdicts were not unreasonable. [48].
(5) Permission to extend the time within which to file an appeal against sentence refused. Neither the sentence nor the non-parole period was manifestly excessive: the aggravating features of the second criminal trespass made that offence particularly serious. The applicant committed the offences while on parole and showed no contrition or remorse. He has poor prospects for rehabilitation. [49]-[52], [54].
Supreme Court Criminal Appeal Rules 1996 (SA) r 9; Criminal Appeal Rules 1925 (SA) r 24; Criminal Appeal Rules (NSW) r 27; Supreme Court (Criminal Procedure) Rules 2008 (Vic) rr 2.40, 2.41; Supreme Court Rules 2000 (Tas) r 675(3); Criminal Rules 2006 (Tas); Court Procedure Rules 2006 (ACT) r 5471; Criminal Procedure Rules 2005 (WA) r 72(1); Supreme Court (Court of Appeal) Rules 2005 (WA) r 59(1); Supreme Court Rules (NT) r 84.15; High Court Rules 2004 r 42.14; Federal Court Rules 2011 r 36.73; Family Law Rules 2004 r 22.42; Criminal Practice Rules 1999 (Qld) r 70; Criminal Appeal Rules 1908 (UK), referred to.
R v Medway [1976] QB 779; R v Edwards (No 2) [1931] SASR 376; Macri v Thobaven [2010] WASC 18; R v Preston [2004] SASC 77; R v Cartwright (1989) 17 NSWLR 243; R v Clark [2003] NSWCCA 30; R v Brain (1999) 74 SASR 92; Walton v The Queen (1989) 166 CLR 283; R v Firman (1989) 52 SASR 391; R v Benz (1989) 168 CLR 110; Pollitt v The Queen (1992) 174 CLR 558; Bannon v The Queen (1992) 185 CLR 1; Baker v The Queen (2012) 245 CLR 632, discussed.
Tognolini v The Queen (No 2) [2012] VSCA 311; R v McNamara (No 2) [1997] 1 VR 257; R v Bell (1987) 8 NSWLR 311; Morgan v The Queen (No 2) [2013] NSWCCA 80; R v Basacar [2008] QCA 285; Bridges v The Queen (1998) 20 WAR 59; La Rosa v The Queen (1999) 105 A Crim R 362; Mullally v The Queen (2001) 123 A Crim R 371; Harris v The Queen [2004] WASCA 223; R v Johnston [2004] NSWCCA 58; R v Bell [2002] NSWCCA 2; R v Young [1999] NSWCCA 275; R v Pollitt (No 2) [2009] SASC 154; R v Parenzee (2008) 101 SASR 469; R v Keogh (No 2) (Unreported, Supreme Court of South Australia, Matheson J, 13 May 1997); R v Caruso (1988) 49 SASR 465; R v Shannon (1982) 32 SASR 5; M v The Queen (1994) 181 CLR 487, considered.

R v MCRAE
[2013] SASCFC 89
Court of Criminal Appeal: Peek, Stanley and Nicholson JJ

PEEK J. Application to withdraw an abandonment of appeal.
Introduction
After a trial by jury, the applicant was convicted of two counts of aggravated serious criminal trespass in a place of residence, one count of aggravated causing harm to Mr Donald Fiebig with intent to cause him harm, two counts of theft and one count of damaging property.
These offences were all committed over 3 and 4 September 2009 at two residential houses in the mid north of South Australia, the first being the home of Mr and Mrs Eric Fiebig at Booleroo Centre and the second being the home of Mr and Mrs Donald Fiebig at Murray Town. The prosecution case was that these offences were committed by three men, two of whom were the applicant and Mr Saunders. Saunders was a former employee of Donald Fiebig, knew both of the Fiebig families and pleaded guilty to all charges. The identity of the third man remains unknown.
The case against the applicant was wholly circumstantial but nevertheless a strong one. At the relevant time, the applicant and Saunders were working together on a building site at Hallett Cove. DNA matching the DNA of the applicant was found on a number of items found in, or near, Saunders’ Holden Commodore sedan which was found abandoned soon after the second of the two home invasions, it having been rendered undrivable after an impact with a spoon drain (the accident). Such DNA was also found on a cigarette butt some 15-20 metres from the car, the prosecution case being that the applicant had smoked a cigarette at some distance from the car. Inside the car was found property that had been stolen from the first home invasion. The car had undoubtedly been used to commit the offences at both houses.
A large number of calls were made over 3 and 4 September 2009 from a mobile phone which will be referred to as the applicant’s mobile phone.[1] “Telephone tower evidence” showed that a number of the calls were made chronologically from places moving north from Hallett Cove (where the applicant was working) towards the area of the offences, a number being made in that general area, and later further calls being made from places moving toward the south. Importantly, a number of these calls were made to a woman who was then the applicant’s girlfriend.
[1] The mobile phone was a “work phone” used by the applicant, the number of which was habitually given as his contact number by the applicant and established to have been used by various people in that way.
Some 15 of the calls made on the applicant’s mobile phone were made from the Booleroo Centre area between 1:26am and 5:22am on 4 September 2009 in circumstances consistent with the Holden Commodore having been involved in the accident and the occupants attempting to contact various friends and associates to request help. Amongst the calls made on the applicant’s mobile phone at this time were calls to a mobile phone number asserted by the prosecution to be used by the applicant’s brother, Adam McRae, and to the mobile phone of the applicant’s girlfriend. Further, at this same time, the records of Saunders’ mobile phone show that that phone was also then being used to contact a number of Saunders’ associates; Saunders’ mobile phone continued to be used throughout this period at the same time as the applicant’s mobile phone was being used.
The prosecution asserted that it was highly unlikely that anyone but the applicant was using the applicant’s mobile phone during this time having regard to all of the circumstances including the calls to his girlfriend and to the number associated with his brother.
The case for the applicant at trial was that a hypothesis consistent with innocence had not been negated beyond reasonable doubt, which hypothesis can shortly be stated as including the following planks. First, that the applicant had accidentally left his mobile phone in the Holden Commodore and the relevant calls had been made by some person(s) other than the applicant. Second, that the applicant had a twin brother, Adam McRae, who could have been responsible for depositing the DNA samples relied upon by the prosecution.[2]
[2] Some of the DNA findings were on items found in the vehicle which could have been left there previously in innocent circumstances. However that explanation could not account for all items on which DNA matches were found. It was not positively established that the twins were genetically identical but the prosecution accepted that it was necessary to exclude the possibility that Adam McRae was responsible for the DNA findings.
At trial the prosecution led a good deal of evidence which it is not necessary to set out. It included evidence led to show that it was highly unlikely that Adam McRae, rather than the applicant, was present at the sites of the offences. One aspect of such evidence was that an investigating police officer (without prior arrangement) called the number which, on the prosecution case, was the mobile phone number of Adam McRae, and a person answered and identified himself as “Adam McRae”. This evidence was objected to at trial and was a matter sought to be complained of on appeal.
At trial the applicant did not give evidence and nor did his brother Adam McRae, his then girlfriend or Saunders. The applicant did not seek to adduce evidence from those or other witnesses on appeal.
The course of the appellate proceedings
On 22 November 2011, the jury returned its unanimous verdict. On 13 December 2011, an application for permission to appeal against conviction was filed in the name of the applicant. During January 2012, the hearing for permission to appeal against conviction was twice adjourned, a lawyer appearing for the applicant on both occasions. On 9 March 2012, the Director of Public Prosecutions (the Director) filed a detailed outline of argument opposing the grant of permission to appeal.
On 24 January 2012, sentencing submissions were made by the applicant’s lawyer (the applicant maintaining his innocence).
On 13 March 2012, Mr McRae’s lawyer filed a Notice of Abandonment of Appeal in relation to the conviction appeal. That notice was signed by the lawyer and stated that it was filed upon Mr McRae’s instructions. In consequence of that filing, and by operation of Rule 9, Supreme Court Criminal Appeal Rules 1996 a Notice of Final Determination of Appeal was entered upon the file and the appeal was thereafter to be treated as having been dismissed by the Court of Criminal Appeal.
On 27 June 2012, the trial Judge sentenced the applicant to imprisonment for eight years, two months and nine days (being eight years less one year time served plus the balance of his unexpired parole of one year, two months and nine days from offending in New South Wales). His Honour imposed a non-parole period of four years. Both the head sentence and the non-parole period commenced from 27 June 2012.
Nearly a year later, on 17 May 2013, a document purporting to be an application to withdraw the Notice of Abandonment of the appeal against conviction was filed. It also purported to be an application for permission to appeal against sentence; this was long out of time, the time within which to appeal against sentence having elapsed on 18 July 2012.
In a letter annexed to the document, the applicant gave reasons for seeking to revive his appeal against conviction as follows:[3]
As outlined in the ‘Notice of Appeal form’ I am applying for permission to appeal against both my conviction and sentence and to seek an extension of time.
…
… I have not had adequate finances to fund an appeal and legal aid would not assist. I appealed the decision by legal aid and was informed again that they would not assist (29^th of April 2013). At no point did any lawyer advise that I could represent myself.
[3] AB30.
On 18 June 2013, the matters were called on before the Court of Criminal Appeal. The applicant was unrepresented. When questioned about his reasons for abandoning his conviction appeal, he stated:[4]
ANDERSON J:     I’m in the dark and so are the other two members of the court as to where it’s up to in relation to your application.
APPELLANT:    The abandonment was purely funding.
ANDERSON J:     Tell me more about that. Tell me what you mean about that.
APPELLANT:    I wanted to proceed but the lawyers wouldn’t proceed unless they could get funding and I just can’t source that sort of money. The lawyer suggested that I abandon it for now because – he said that we haven’t gone too far and we can appeal later.
(Emphasis added)
[4]    T3.
Obviously, the emboldened statements last referred to, if made, reflect a starkly erroneous view of the applicable law and procedure in this area.
There appearing to the Court to be a chance that the applicant might gain legal representation, the matter was adjourned and it was subsequently relisted for hearing on 23 August 2013 (the present hearing).
The procedural issues
The matters of abandonment and Notices of Abandonment are currently dealt with in South Australia in Supreme Court Criminal Appeal Rules 1996. Rule 9 states:
At any time after an appellant has filed in the Registry a notice of appeal or a notice of application for permission to appeal, the appellant may abandon the appeal or application by filing in the Registry a notice of abandonment thereof in Form No 9 and upon such notice being filed, the appeal shall be deemed to have been dismissed by the Full Court. A notice of abandonment may be withdrawn by permission of the Full Court.
(Emphasis added)
In considering the correct approach to the application of the South Australian Rule, a provision deeming an appeal to have been dismissed by the Full Court will be referred to as “a deeming provision” and a provision of the type in the last emboldened sentence will be referred to as “a revival provision”.
It is to be noted that the inclusion of a revival provision is unusual and not to be found elsewhere in Australia except for Queensland.[5]
[5] Criminal Practice Rules 1999 r 70. See also Family Law Rules 2004 r 22.42.
The position in other jurisdictions
In New South Wales,[6] Victoria[7] and Tasmania,[8] there is a deeming provision and no revival provision.[9] In the Australian Capital Territory,[10] Western Australia[11] and the Northern Territory[12] the rules do not include a deeming provision but nor is there a revival provision.[13]
[6]    Criminal Appeal Rules r 27.
[7]    Supreme Court (Criminal Procedure) Rules 2008 r 2.41.
[8]    Supreme Court Rules 2000 r 675(3). These rules relate to civil proceedings only and there appears to be no equivalent provision in the Criminal Rules 2006.
[9]    See also Federal Court Rules 2011 r 36.73.
[10] Court Procedures Rules 2006 r 5471.
[11] Criminal Procedure Rules 2005 r 72(1) and Supreme Court (Court of Appeal) Rules 2005 r 59(1).
[12] Supreme Court Rules r 84.15.
[13] See also High Court Rules 2004 r 42.14.
One view as to the effect of such a deeming provision is that the Court is functus officio. Thus, in R v Medway, Lawson J (delivering the judgment of the English Court of Appeal) stated of the equivalent English rule:[14]
… Whichever formula is applied, either that from the Rules of 1908 “deemed to have been dismissed” or that from the Rules of 1968 “treated as having been dismissed or refused,” it follows that after abandonment the court is functus officio. That being so, there is no longer any proceeding extant before the court in relation to which its jurisdiction can be exercised. …
[14] [1976] QB 779, 785-786.
However, courts in jurisdictions with a deeming provision may nevertheless seek to rely on an inherent jurisdiction to permit an appeal to be revived and it is possible to observe differences between the jurisdictions as to the expressed nature and width of such an inherent discretion.[15]
[15] See generally R v McNamara (No 2) [1997] 1 VR 257, 262 (Winneke P, Charles JA and Southwell AJA); Tognolini v The Queen (No 2) [2012] VSCA 311 [13] (Maxwell P, Buchanan and Redlich JJA); R v Bell (1987) 8 NSWLR 311, 313-314 (Street CJ); R v Cartwright (1989) 17 NSWLR 243, 246 (Hunt and Badgery-Parker JJ); Morgan v R (No 2) [2013] NSWCCA 80 [80] (Beazley P); Bridges v The Queen (1998) 20 WAR 59, 64 (Ipp J); La Rosa v The Queen (1999) 105 A Crim R 362, 370 (Pidgeon J); Mullally v The Queen (2001) 123 A Crim R 371, 373 (Kennedy J).
In New South Wales the jurisdiction has been expressed in relatively broad terms, the power to revive an abandoned appeal being said to emanate from the court’s inherent jurisdiction to avoid a miscarriage of justice.[16] In R v Cartwright, Hunt and Badgery-Parker JJ (with whom Mahoney JA agreed), expressed the approach to be taken thus:[17]
This Court has no power to grant leave to appeal in a case where it has already heard an appeal on its merits and dismissed it: Grierson v The King (1938) 60 CLR 431 at 434, 436. However, no such appeal has been heard on its merits in this case. The Court does, moreover, retain an inherent jurisdiction to go behind r 27 to ensure that a miscarriage of justice does not go unremedied: Grierson v The King (at 437). For the purpose of exercising that jurisdiction, it is necessary firstly to ascertain how the notice of abandonment came to be filed and then to have regard to the prospects of success which the applicant may have if leave to appeal were granted: R v Bell (1987) 8 NSWLR 311 at 314. Assuming that there were fair prospects of success in the appeal itself, leave may be granted to withdraw the notice if it is established that the applicant had signed it without fully appreciating its significance or the significance of its consequences (sic): R v Griffin (1969) 90WN (Pt 1) (NSW) 548 at 549; [1969] 2 NSWR 497; or as a result of fraud or of bad legal advice: R v Stubbs (1970) 71 SR (NSW) 76 at 7892 WN (NSW)768 at 770; [1970] 3 NSWR 392 at 395. Even if the explanation proffered for the abandonment is weak, that circumstance will not necessarily stand in the way of the grant of leave if it be seen that there would be a miscarriage of justice if leave were refused: R v Bell (at 315).
[16] R v Cartwright (1989) 17 NSWLR 243, 246 (Hunt and Badgery-Parker JJ); Morgan v R (No 2) [2013] NSWCCA 80 [80] (Beazley P).
[17] R v Cartwright (1989) 14 NSWLR 243, 246 (Hunt and Badgery-Parker JJ). See also Morgan v R (No 2) [2013] NSWCCA 80 [80] (Beazley P); R v Johnston [2004] NSWCCA 58 [97] (James J); R v Clark [2003] NSWCCA 308 [20] (Barr J); R v Bell [2002] NSWCCA 2 [29] (Smart AJ); R v Young [1999] NSWCCA 275 [48]-[50] (Smart AJ).

And in R v Clark, Barr J (with whom O’Keefe J and Hidden J agreed) stated:[18]
[20]… The matters to be considered are whether there may have been a miscarriage of justice at trial (which depends on the substance of the grounds of appeal desired to be argued), the reasons for abandoning the appeal and for seeking to withdraw the abandonment, the length of time which has elapsed since the conviction appealed from and, at any rate where it is desired to argue new trial grounds, any particular reason why the passage of that time may have prejudiced the other side.
[18] [2003] NSWCCA 308.
It may also be noted that there are some indications that the absence of a deeming provision may enable a broader approach to be taken to the existence and extent of the Court’s inherent power.[19]
[19] In Western Australia, the Rules previously stated that an abandoned appeal is deemed to have been dismissed (with no revival provision) and were considered in that previous form in Bridges v The Queen (1998) 20 WAR 59, 64 (Ipp J) and Harris v The Queen [2004] WASCA 223 [22]-[27] (Steytler J). However, r 72(1) of the current Criminal Procedure Rules 2005 no longer contains a deeming provision (but nor does it contain a revival provision). In those circumstances, Blaxell J held in Macri v Thobaven [2010] WASC 18 that there is an inherent power to allow withdrawal of a notice of discontinuance where there would otherwise be a miscarriage of justice. His Honour stated:
18.In considering the extent of the court’s inherent powers with criminal appeals in this jurisdiction,
it is important to note s 40(1)(1) of the Criminal Appeals Act 2004 (WA) which confers the same
powers as in a civil case. In civil cases it is a general rule that subsequent orders cannot be made in
litigation that “has been brought regularly to an end” (Bailey v Marinoff (1971) 125 CLR 529 at 531
532).However, there are recognised exceptions to that rule, particularly when there was no
determination of the issues on their merits …
19.Although r 72 of the Criminal Procedure Rules 2005 is silent as to the effect of a notice of
discontinuance of an appeal, there is no longer a statutory deemed dismissal. It follows in my view,
that this court has an inherent power to allow a criminal appellant to withdraw a notice of
discontinuance in circumstances where there would otherwise be a miscarriage of justice. (In this case
there is the added factor that the appeal was not formally concluded in accordance with rules by the
issuing of a Form 27).
The general approach to be applied in South Australia
The revival provision enacted in r 9 in the South Australian Criminal Appeal Rules 1925 is obviously of high importance but there appears to be no South Australian decision which has directly considered the circumstances under which the power should be exercised so as to permit a Notice of Abandonment of Appeal to be withdrawn.
South Australian decisions before the enactment of Rule 9
The predecessor to r 9 in the Criminal Appeal Rules 1925 included a deeming provision and did not make specific provision for the withdrawal of a Notice of Abandonment. It provided:
An applicant at any time after he has duly served notice of appeal or any application for leave to appeal, or of application for extension of time within which under the Act such notices shall be given, may abandon his appeal by giving notice of abandonment thereof in the form No 3 in the Schedule to these rules to the Master, and upon such notice being given the appeal shall be deemed to have been dismissed by the Full Court.[20]
[20] The wording of this provision mirrors that of r 23 of the English Criminal Appeal Rules 1908.
In R v Edwards (No 2),[21] the Full Court (Angas Parsons, Napier and Piper JJ) considered the predecessor to r 9 in the different context of reopening appeals already determined on their merits. Their Honours cited with approval several decisions of the English Court of Appeal which express the inherent jurisdiction in a somewhat broader way than may be found in other places:[22]
… By r 24 of the Criminal Appeal Rules 1925, an appellant, after service of notice to appeal, or of application for leave to appeal, or of application for extension of time within which under the Act such notice may be given, may abandon his appeal by giving notice of such abandonment to the Master, and upon such notice being given the appeal shall be deemed to have been dismissed. The Court of Criminal Appeal in R v Barker, (1910) 5 Cr App Rep 283, where a notice of abandonment of an appeal had been given, allowed such notice to be withdrawn, and heard and allowed an appeal. In R v Pitman, (1916) 12 Cr App Rep 14, where a notice of abandonment had been given, the prisoner applied for leave to withdraw the notice. The Lord Chief Justice, in giving reasons for the refusal of the application, said at pp 14-15: - “There is no doubt that this Court has power either to allow the notice of abandonment to be withdrawn, or to re-open an appeal that has been dismissed. But that power will only be exercised where there are special circumstance which in the view of the Court justifies a departure from the ordinary procedure.” In R v Cox, (1920) 15 Cr App Rep 36, where the notice of the abandonment of the appeal had been given, an application was made for leave to withdraw the notice, and Salter J, in delivering the reasons of the Court which refused the application, quoted the passage above cited from R v Pitman. Reference may also be made to R v Sloan, (1923) 39 TLR 173. … (Emphasis added)
[21] [1931] SASR 376 (Angas Parsons, Napier and Piper JJ). At this time in 1931, r 24 provided for the filing of a Notice of Abandonment: see R v Edwards (No 2) [1931] SASR 376, 378.
[22] R v Edwards (No 2) [1931] SASR 376, 378-380.
I note that in 1978, in R v De Angelis, the South Australian Court of Criminal Appeal considered an application to withdraw a Notice of Abandonment under r 23, Criminal Appeal Rules 1925 (in the same terms as the previous r 24).[23] On 19 March 1979, the Court (King CJ, Sangster and Cox JJ) refused the application after a hearing in private. The order of the Court reads:
The Full Court has finally determined the said appeal, and has this day given judgment therein to the effect following:–
Order (1)That the application to withdraw the Notice of Abandonment cannot be granted. (Emphasis added)
[23] The Criminal Appeal Rules 1925 were amended from time to time and the rule numbers changed.
It might be said that the use of the word “cannot” tends to suggest a lack of jurisdiction to permit the withdrawal of a Notice of Abandonment, but I consider that it is very doubtful that the words were intended to be used in an absolute sense.
South Australian decisions after the enactment of r 9
In R v Brain[24] (decided after the enactment of r 9 in its current form), the Court was dealing not with an appeal that had been abandoned by the filing of a Notice of Abandonment but an appeal that had been struck out due to the failure of the appellant to attend at the various dates set down for its hearing.
[24] (1999) 74 SASR 92. See also R v Shannon (1982) 32 SASR 5, 8 (Cox J); R v Caruso (1988) 49 SASR 465, 480-481 (White J); R v Keogh (No 2) (Unreported, Supreme Court of South Australia, Matheson J, 13 May 1997); R v Parenzee (2008) 101 SASR 469, 492 [121] (Bleby J); R v Pollitt (No2) [2009] SASC 154 [13]-[15] (Duggan J).
However, in discussing the importance of finality, Doyle CJ (with whom Bleby and Wicks JJ agreed) referred to the power of the Full Court to permit a Notice of Abandonment to be withdrawn:[25]
[59]In some States the rules permit an appellant to file a notice abandoning an appeal. This provision in the rules appears to be drawn from an equivalent provision in the English rules, and is of long standing. There is a line of decisions in Australia and in England permitting an appellant to withdraw a notice of abandonment, although such a notice operates as a final dismissal of the appeal. A reference to these cases can be found in R v Edwards (No 2) [1931] SASR 376 at 378-379 and in Grierson v The King (1938) 60 CLR 431 at 437. Decisions to that effect were referred to and approved of in Saxon. The power to allow the notice of abandonment to be withdrawn, appears to rest on the premise that in such a case there has been no appeal heard on its merits. A number of the cases were reviewed by the Victorian Court of Appeal in R v McNamara (No 2). The court there emphasised the narrowness of this exception. The court said that the inherent power to permit a notice of abandonment to be withdrawn was (at 262):
... only available to be exercised in circumstances where the notice can be said to be ‘a nullity’ in the sense that the applicant has failed to understand or appreciate the nature or effect of the document; ie that his mind did not ‘go with his act’ ...
[60]Rule 23 of the 1925 rules provides for the filing of the notice of abandonment. Rule 9 in the 1990 Rules and in the 1996 Rules provides for the filing of a notice of abandonment. Each of them provides:
A notice of abandonment may be withdrawn by leave of the Full Court.
But there was no notice of abandonment in the present case.
[25] R v Brain (1999) 74 SASR 92, 100-101.
Although emphasising that the Court was not dealing with a case involving a notice of abandonment, his Honour proceeded to make a number of remarks that do have application to such cases. Thus, his Honour later stated:[26]
[76]I have come to the conclusion that as the merits of Mr Brain’s appeal were not considered at all, and as the order dismissing the appeal is an order for summary dismissal, this Court has an inherent power to revoke that order and to resume the hearing of the appeal. It has power to do that even though the appeal by Mr Brain was finally disposed of. I consider that to recognise this limited exception is not inconsistent with the line of authority to which I have referred. As I have mentioned, I have not found any case dealing with the circumstances now before the Court. I consider that it is consistent with the interests of justice to conclude that the Court has an inherent power of the type identified by me. The power is available for exercise in very limited circumstances. I do not consider that to hold that such a power exists is likely to have consequences that are adverse to the public interest in the due administration of justice.
[77]I do not consider that my conclusion is inconsistent with the cases that hold that an appellant will be permitted to withdraw an abandonment of an appeal only in quite exceptional circumstances. An abandonment of an appeal is, on its face, a deliberate decision by an appellant not to pursue the appeal. In a sense, it can be said to lead to a determination on the merits because the abandonment can be read as an acknowledgment by the appellant that the grounds lack any merit. That being so, it is appropriate that the Court should allow the withdrawal of an abandonment only when there are circumstances affecting the quality of the decision to abandon the appeal. In the present case, there was of course no deliberate decision to abandon the appeal, although the dismissal of the appeal flowed from Mr Brain’s failure to attend at the hearing.
(Emphasis added)
[26] R v Brain (1999) 74 SASR 92, 103.
In the later South Australian decision in R v Preston, Duggan J (with whom Bleby and Sulan JJ agreed) said (in the context of an application to reopen an appeal previously dismissed on its merits):[27]
[12]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. …
[27] [2004] SASC 77.
The position in Queensland
In Queensland the position is now very similar to that in South Australia. Queensland r 70, Criminal Practice Rules 1999 provides:
70─Abandoning appeal
(1)An appellant, at any time after starting an appeal, may abandon it by giving to the registrar a notice of abandonment of appeal.
(2)The appeal is taken to be dismissed by the court when the notice is given to the registrar.
(3)However, if the court considers it necessary in the interests of justice, the court may set aside the abandonment and reinstate the appeal.
It can be seen that the only difference between the South Australian and Queensland provisions is that the Queensland rule explicitly states that the power to set aside the abandonment is to be exercised where “the court considers it necessary in the interests of justice”. In R v Basacar, Cullinane J (with whom Frazer JA and Jones J agreed) stated:[28]
[9]The courts permitted the withdrawal of a notice of abandonment only in very limited circumstances which are not relevant here. With the introduction of r 70 the court has a broader power to set aside an abandonment of an appeal and to reinstate the appeal.
[10]Although the applicant did not make such an application in those terms before us, it seems to me consistent with the above authorities necessary for him if he is to challenge the convictions to obtain such an order and the matter falls to be considered by reference to the considerations relevant to such an application.
[11]The considerations relevant to such an application are more extensive than those relevant to an application for an extension of time within which to appeal although considerations relevant to the latter will also be relevant to the former.
[12]Rule 70 was considered by the Court of Appeal in R v Marriner [2007] 1 Qd R 179.
[13]As McPherson JA pointed out at pp 183 and 184 consideration of the circumstances in which the appeal was abandoned in the first place is necessary. The explanation for any delay between the abandonment and the application for leave to set it aside will be relevant as will a consideration of the prospects of success. Ultimately of course, the question is whether the setting aside of the abandonment and the reinstatement of the appeal are necessary “in the interests of justice”.
[28] [2008] QCA 285.
Consideration of the application generally
The explanation of the applicant for the abandonment of the conviction appeal was that he believed that he could only present an appeal through a lawyer; that he could not afford a lawyer; that prior to the very recent provision of assistance he had been refused assistance by the Legal Services Commission; and that his previous lawyer had “suggested that I abandon it for now because – he said that we haven’t gone too far and we can appeal later”.[29]
[29] T3.
Usually detailed affidavits would be required concerning the statements of the applicant, with cross-examination likely, and particularly so concerning the last assertion above.
However, there were a number of unusual circumstances in the present case. First, the Director did not wish to contest the accuracy of the applicant’s statements surrounding the circumstances under which the Notice of Abandonment was filed and positively submitted that the appeal should be considered upon its merits. The Director had long ago filed its outline of argument on the merits in relation to the conviction appeal, had since filed further full documentation and was ready to present full argument on both conviction and sentence forthwith. Second, the Legal Services Commission had also provided full documentation and Senior Counsel was ready to proceed forthwith. Finally, quite apart from the matter of conviction, the applicant had a valid application for permission to appeal against sentence on foot (with an implied application for an extension of time) which needed to be considered by the Court in any event.
In all of the present circumstances, the Court considered it appropriate to proceed without affidavit evidence up to the point of considering the submissions of the parties on the merits of the proposed appeal against conviction and then, depending on the view it took of the merits and having close regard to the remarks of Doyle CJ in R v Brain,[30] to consider the need for the filing of affidavits from the appellant and his former lawyer concerning the circumstances under which the conviction appeal had been abandoned.
[30] (1999) 74 SASR 92, considered above. The Chief Justice there stated inter alia at [77]: “[I]t is appropriate that the Court should allow the withdrawal of an abandonment only when there are circumstances affecting the quality of the decision to abandon the appeal”.
Amendment of the proposed grounds of appeal
On the above basis, Senior Counsel for the applicant (who did not appear below) was permitted to substitute amended proposed grounds of appeal with the consent of the Director which are as follows:
1.The learned trial judge erred in admitting into evidence the evidence of police officer Benjamin James Hall that he called telephone number 0415 225 817 and that the person “on the other end identified themselves as Adam McRae”.
1.1     The prosecution led no evidence as to when the police officer made the relevant telephone call (T205)
1.2     There was evidence that the said telephone was registered in the name of a person whom the police were unable to trace (Agreed fact P24)
2.The jury’s verdicts are unreasonable and cannot be supported having regard to the evidence.
3.     The sentence and the non-parole period are manifestly excessive.
Consideration of the proposed grounds of appeal
The facts are sufficiently set out above. I have read the transcript of the evidence at trial, including the addresses of counsel and the summing up. I particularly note the detailed, indeed minute, analysis of the pattern of circumstantial evidence by prosecution counsel at trial which is compelling and which I do not attempt to replicate.
As to ground one of appeal, the well known decisions of Walton v The Queen,[31] R v Firman,[32]R v Benz,[33] Pollitt v The Queen,[34] Bannon v The Queen,[35] and the more recent decision of the High Court in Baker v The Queen[36] were referred to by counsel on the appeal.
[31] (1989) 166 CLR 283.
[32] (1989) 52 SASR 391.
[33] (1989) 168 CLR 110.
[34] (1992) 174 CLR 558.
[35] (1995) 185 CLR 1.
[36] (2012) 245 CLR 632.
In my view, it is quite clear that the impugned evidence was admissible on the basis that the fact that the recipient of the unexpected telephone call announced his name as “Adam McRae” was an item of circumstantial evidence (to be added to the rest of the circumstantial evidence) from which it could be inferred that the telephone number dialled was indeed associated with a person called Adam McRae. It is unnecessary to expand on the matter further for present purposes.
As to ground two of appeal, on an independent assessment of the evidence, I do not consider that the verdicts were unreasonable or that it is dangerous to let the verdicts stand; I do not think that there is a significant possibility that an innocent person has been convicted.[37] Indeed, I consider the unanimous verdicts of the jury to have been correct.
[37] M v The Queen (1994) 181 CLR 487, 492-494 (Mason CJ, Deane, Dawson and Toohey JJ).
As to sentence, the application for leave to appeal against sentence was made long out of time. The only proposed ground of appeal is that the sentence was manifestly excessive.
The crimes, particularly relating to the second premises, were very serious. Mr Donald Fiebig was viciously assaulted at night in his own bedroom, and also threatened with a firearm, with all three offenders being present.
The applicant committed the crimes while on parole following a sentence of five years and nine months for a serious commercial drug offence. He has shown no contrition or remorse whatever and has poor prospects for rehabilitation.

The sentence as a whole is within range and the non-parole period is not disproportionate to the head sentence. Error has not been established.
Disposition of the applications
I consider that the proposed appeal against conviction has no merit. In the circumstances, I would refuse the application to withdraw the abandonment of the appeal against conviction.
As to sentence, I would in any event refuse permission to appeal against sentence and it is appropriate in the present case to refuse permission to extend time within which to apply for permission to appeal against sentence.
Proposed Orders
1That the application for permission to withdraw the abandonment of the appeal against conviction be refused; and
2That the application to extend time within which to apply for permission to appeal against sentence be refused.
STANLEY J. I agree with the orders proposed by Peek J and his Honour’s reasons for making them.
NICHOLSON J. I agree with the orders proposed by Peek J for the reasons his Honour has provided.