R v Preston

R v PRESTON
[2004] SASC 77
Court of Criminal Appeal: Duggan, Bleby and Sulan JJ

DUGGAN J. The applicant and a co-accused, Gillard, were convicted of two counts of murder and one count of attempted murder. Their appeals against conviction to the Full Court were dismissed. The applicant applied to the High Court for leave to appeal, but his application was refused. Gillard was granted leave to appeal to the High Court, his appeal was allowed and a new trial ordered on the charges laid against him.
The applicant has now applied to re-open his appeal to this court. He is unrepresented. The grounds of appeal which he wishes to argue are as follows:
“GROUND 1 The appellant’s co-accused, Kevin GILLARD, with whom the appellant was jointly tried, has recently been diagnosed as a ‘paranoid schizophrenic’, and no vulnerable witness, ‘Bromley’ type, warning was given to the jury.
GROUND 2The lack of appropriate unreliable evidence (‘Longman’ and ‘McKinney’ type) warning to the jury, concerning the unreliable evidence admitted by; The Crown, Kevin GILLARD, Vicki PRESTON, Ron PRESTON, Ivy PRESTON and Michael SLOBBODIAN.
GROUND 3The Crown denying the appellant access to the requested Telephone Intercept and Listening Device evidence, at trial, did represent a ‘failure to disclose’.
GROUND 4The new Telephone Intercept and Listening Device tapes tendered to the Court of Criminal Appeal are relevant and should be admissible.
GROUND 5The ‘lost’ F9705 Telephone Intercept call referred to at the Court of Criminal Appeal, is very significant, and the fact that the synopsis did not contain any mention of the appellant’s finances does not make it irrelevant, when considering the misconduct of the Crown in submitting an incomplete and unreliable body of evidence for the single purpose of rebutting the appellant’s assertions.
GROUND 6The Court of Criminal Appeal’s refusal to allow the appellant to test ‘Ms X’s’ allegations against the Crown witness, Ivy PRESTON, is a denial of procedural fairness and natural justice.
GROUND 7The appellant’s conviction is unsafe.”
The applicant explained at the hearing of the application that Ground 7 is based on the combined effect of Grounds 1 to 6 inclusive.
The applicant has also sought orders from the court for the production of certain medical records concerning his co-accused.
The application gives rise to a threshold question as to whether the court has jurisdiction to re-open an appeal in these circumstances or to entertain a second appeal.
The court’s appellate jurisdiction in criminal cases is set out in Part 11 Division 3 of the Criminal Law Consolidation Act, 1935. There is no express power in these provisions to entertain a second appeal and in R v Edwards (No 2) [1931] SASR 376 at 378 the Full Court held that the court had no power to permit a second appeal after the disposal of an appeal on its merits.
The court’s decision in Edwards’ case was approved by the High Court in Grierson v The King [1938] 60 CLR 431. The legislation under consideration in that case was the Criminal Appeal Act 1912 (NSW) which was similar in all relevant respects to the South Australian legislation.
In Grierson the appellant’s appeal against conviction was dismissed and his application for special leave to appeal to the High Court was refused. He 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”.
The High Court upheld the refusal of the Court of Criminal Appeal to re-open the appeal. Dixon J said at 435:
“The Supreme Court held, in accordance with a decision of the Supreme Court of South Australia (R v Edwards [No 2] (1931) SASR 376, 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 (Attorney-General v Sillem (1864) 2 H & C 581 at pp 608, 609; 159 ER 242 at p 253).”
The decision in Grierson’s case has remained unchallenged and was affirmed in Postiglione v The Queen (1987) 189 CLR 295 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 perfected.
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 Matter (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: 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. Most of the cases are discussed by Doyle CJ in the last-mentioned case. He concluded 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 of 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.”
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.”
These comments were referred to in Postiglione v The Queen (1997) 189 CLR 295. 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 subsequently 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, but the appeal was dismissed. He then sought leave to appeal to the High Court.
It was noted in the judgments in the High Court that there was some doubt as to whether the first appeal to the Court of Appeal had been perfected. In their judgment Dawson and Gaudron JJ said at 300:
“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 (1938) 60 CLR 431. 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 (See, in this regard, R v Shannon (1982) 32 SASR 5; cf R v Caruso (1988) 37 A Crim R 1 where an application for leave to appeal against conviction was entertained notwithstanding the earlier disposition of an appeal against sentence on the footing that the Criminal Law Consolidation Act 1935 (SA) allows for separate appeals against conviction and sentence. 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 (Pantorno v The Queen (1989) 166 CLR 466 at 474, per Mason CJ and Brennan J; at 484, per Deane, Toohey and Gaudron JJ). 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.”
Gummow J agreed with these remarks at 327.
The matter was then remitted to the Court of Appeal to be dealt with in accordance with the decision of the High Court. The Court of Appeal found that the judgment on the first appeal had not been perfected, thus allowing the court to deal with the second appeal: R v Postiglione (Unreported, 4 December 1997, BC 9706396). Hunt CJ at CL delivered the judgment of the court. He stated at 304:
“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.”
The importance of finality in relation to appeals has been referred to in a number of cases. There is the further consideration that the legislation in all Australian States and the Northern Territory provides procedures for enquiries after conviction in appropriate cases after the usual appeal rights have been exhausted. The existence of this remedy supports the conclusion that the legislation provides for only one appeal.
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 [1997] 1 VR 257; R v Saxon Matter [1998] NSW SC 115. In McNamara’s case the Court of Appeal made the following observation at 264:
“The distinguishing factor, it was said, was that, here, there has been no determination on the merits, since ground 9 has not been argued. We are quite unable to accept that submission as correct. It is to interpret the expression ‘on the merits’ as excluding such of the merits as counsel at the time did not regard as worthy of argument, with the result that an application can ‘continue to appeal from time to time … whenever a new point occurs to him or to his legal advisers …’ (to quote again some of Jordan CJ’s words in Grierson).
As the court said in Edwards at 380:
‘The consequences of holding that this Court has jurisdiction to entertain further appeals from time to time after the dismissal of an appeal, would lead to manifest inconvenience and, possibly, great absurdity.’ ”
It is also clear that the decision in the present case was perfected. The appropriate procedure for bringing an appeal to completion is set out by the Chief Justice in Brain at 100. Under the present practice the result of an appeal in the criminal jurisdiction is recorded on the Information and then entered into the Court’s computerised system. The appellant is then given notification of the result of the appeal on a prescribed form. All these steps were taken in relation to the applicant’s appeal to the Full Court in this case.
It is appropriate to say something further about the grounds of appeal upon which the applicant wishes to proceed. Grounds 3 to 6 inclusive raise issues which were argued before the court at the hearing of the appeal. These issues were dealt with in the reasons for decision.
Grounds 1 and 2 are based primarily on the applicant’s assertion that he has been informed since the dismissal of the appeal that Gillard suffers from paranoid schizophrenia. According to the argument, if this was known at the time of the trial, the applicant would have adduced evidence in relation to it.
Gillard did not give evidence at the trial and the applicant’s claim that warnings of the type discussed in Longman v R (1989) 168 CLR 79 and Bromley v R (1986) 161 CLR 315 would have been appropriate is misconceived. However, Gillard’s interviews with the police were led by the prosecution at the trial and, as was pointed out in the judgment of the Full Court on the appeal, the trial judge directed the jury that what was said by Gillard in the course of the police interviews was not admissible against the applicant.
However, the trial judge directed the jury that the demeanour of Gillard at certain stages during the interrogation was admissible against the applicant. According to the applicant’s argument, evidence of Gillard’s psychiatric condition was relevant to the issue of his demeanour on these occasions and the inferences which might be drawn from it. Some evidence was led at the trial as to Gillard’s psychiatric condition, but not the aspect which the applicant claims to have discovered recently, namely, that Gillard suffered from paranoid schizophrenia.
Evidence was also led at the trial of a comment made by Gillard to another witness which was capable of being viewed as a statement made in furtherance of the common enterprise alleged against the two accused. The comment made by Gillard incriminated the applicant. According to the applicant’s argument, evidence that Gillard suffered from paranoid schizophrenia would have been relevant to the jury’s assessment of this statement by him.
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.
There is no basis in the present case for holding that there was any procedural unfairness in the conduct of the appeal which would bring the case within an exception to the general rule. The applicant claims that there was procedural unfairness arising out of the failure of the prosecution to disclose the contents of all the intercepted telephone conversations and other conversations recorded by means of listening devices in the course of the police investigation. Following an application made prior to the hearing of the appeal, this court ordered that the applicant be provided with copies of the relevant tape-recordings. Subsequently, however, the court rejected the applicant’s application to call evidence of some of the recordings on the hearing of the appeal. The application was refused on grounds of relevance. These circumstances do not provide any basis for the applicant’s argument that there was procedural unfairness.
The other issue raised by the applicant in support of his argument that there was procedural unfairness was the refusal of the court on the hearing of the appeal to require the police to disclose the name of an informant who, it was claimed, had stated to the police that one of the important prosecution witnesses at the trial had told her she lied when giving evidence. The court made its ruling after considering the available evidence and the claim of immunity put forward by the prosecution. The refusal of the court to require the disclosure of the name of the informant was the principal argument raised on the application for leave to appeal to the High Court. In refusing leave to appeal, the court announced that it was not convinced that any miscarriage of justice had occurred. Again, the refusal to disclose the name of the informant and its consequences could not justify the re-opening of the appeal by reason of procedural unfairness.
In my view, the case is governed by the decision in Grierson. There was an appeal on the merits and the decision of the Full Court was perfected. There was no procedural unfairness in the hearing of the appeal which would provide a basis for it to be re-opened or for the court to entertain a second appeal.

I would dismiss the application.
BLEBY J. I agree that the application to re-open the appeal should be dismissed for the reasons given by Duggan J.
SULAN J. I agree that the application should be dismissed for the reasons given by Duggan J.

[2004] SASC 77

2 April 2004