COUNSEL: Mr. Roberts SC with Mr. G. Farmer for Crown Mr. H.K. Dhanji for applicant
SOLICITORS: G. Drennan (CDPP) for Crown S. O'Connor for applicant
CATCHWORDS: CRIMINAL LAW - Appeal - Application to re-open after disposal of appeal - Perfection of order - Whether there is jurisdiction to re-open where grounds of appeal not dealt with, or procedural fairness denied CRIMINAL LAW - Crown's duty of disclosure - Principles governing duty - Consequences of breach of duty - Whether onus on Crown to show no real chance of acquittal lost.
LEGISLATION CITED:
DECISION: Application to re-open dismissed.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
CA 60419/99
HODGSON JA SIMPSON J BARR J
Wednesday 23 June 2004
REGINA V. Michael Leonard REARDON (No.2)
HEADNOTE
FACTS
On 4 June 2002, the Court as presently constituted dismissed an appeal by Mr Reardon against his conviction (R v Reardon, Michaels and Taylor[2002] NSWCCA 203). In that judgment the Court dealt with all issues raised by the grounds of appeal of all appellants, and all issues identified in a previous judgment of 1 March 2002. However, the judgment did not deal with a suggestion, advanced by Mr. Ramage QC for Mr. Reardon, that certain running sheets were relevant to Mr. Reardon’s defence that he never intended to import cocaine, but rather intended to defraud the witness W of the money that W was to provide for the supposed importation of cocaine (the “rip-off” defence).
By written submission dated 29 July 2003, Mr. Reardon applied to re-open the appeal against conviction on the ground that he was denied procedural fairness, as one of his arguments had not been dealt with by the Court.
This submission argued that entries in running sheets kept by the National Crime Authority (NCA) should have been disclosed by the Crown prior to the trial; and that the Crown’s failure to do so caused a miscarriage of justice, because Mr. Reardon was denied support to his “rip-off” defence that those running sheets could have provided.
Two broad issues were argued on the application to re-open the appeal. First, could and should the Court re-open the hearing of the case? Second, if so, had a miscarriage of justice occurred as a result of the Crown’s breach of its duty of disclosure to the appellant.
The first issue gave rise to three main questions. Was the order of the Court perfected? Can the Court of Criminal Appeal re-open the hearing of an appeal after an order has been perfected? Can and should it do so in this case?
The second issue gave rise to four main questions. What is the Crown’s…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Reardon (No 2) [2004] NSWCCA 197
Case
[2004] NSWCCA 197
Decision Date
CaseChat Overview and Summary
The case of R v Reardon (No 2) involved an application by Michael Leonard Reardon to reopen his criminal appeal, which had been dismissed by the Court of Criminal Appeal on 4 June 2002. The primary issues before the court were whether there was jurisdiction to reopen the appeal due to procedural unfairness and whether the Crown's failure to disclose certain material had deprived Reardon of a real chance of acquittal. The Court of Criminal Appeal was tasked with determining if the undisclosed material could have influenced the jury's decision to acquit Reardon and if procedural fairness was compromised in the original appeal.
The court examined the potential impact of the undisclosed material on the jury's decision-making process. The undisclosed material, which related to Reardon's activities during his first visit to Santiago, was deemed relatively insignificant given the overall evidence against him. The court concluded that there was no real chance that the jury would have acquitted Reardon even if the material had been disclosed. Furthermore, the court found that the Crown's duty of disclosure had been breached, but this breach did not result in a loss of Reardon's real chance of acquittal. The court held that the Crown had not discharged the onus of proving that the undisclosed material could not have affected the outcome of the trial.
In light of the limited impact of the undisclosed material and the absence of a miscarriage of justice, the Court of Criminal Appeal found that it did not have the jurisdiction to reopen Reardon's appeal. Additionally, the court dismissed the argument that procedural fairness had been denied, as the undisclosed material did not address a specific argument raised in the original appeal. Therefore, the application to reopen the appeal was dismissed, and no further appeal was permitted.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Having regard to the limited use to which the undisclosed material could have been put, and the relative insignificance in the case of the precise activities undertaken by Mr. Reardon on his first visit to Santiago, I am satisfied there is no real chance that the jury would have acquitted Mr. Reardon had this material been available. In my opinion there is no real chance that use of the material could have caused the jury to consider that there was a reasonable possibility that Mr. Reardon’s version of events, involving a coincidental meeting with Mr. Cox in October 1997, could be true. CONCLUSION For those reasons, in my opinion the Court does not have jurisdiction to re-open Mr. Reardon’s appeal in the circumstances of this case. In any event, in my opinion there has been no miscarriage of justice because Mr. Reardon has not lost a real chance of acquittal by reason of the Crown’s non-disclosure of material. Accordingly, the application to re-open Mr. Reardon’s appeal should be dismissed. SIMPSON J: This is an application by Michael Leonard Reardon (“the applicant”) for leave to reopen an appeal in which this Court (as presently constituted) delivered judgment (dismissing the appeal) on 4 June 2002 (R v Reardon, Michaels and Taylor [2002] NSWCCA 203). I should record at the outset that, having read in draft the judgment of Hodgson JA, I agree, for the reasons given by his Honour, that this Court lacks the jurisdiction to make the order sought. However, even if that were wrong, I agree that the application should be dismissed. What follows are my reasons for coming to that view. The basis for the application is stated in written submissions filed on behalf of the applicant as:The applicant has been denied procedural fairness.In the written submissions reference is made to “the events leading to the making of this application” as set out in an affidavit affirmed by the applicant’s solicitor. In this affidavit the solicitor deposed that, following delivery of the 4 June judgment, consideration was being given to, and advice sought as to, the potential merit of an application for special leave to appeal to the High Court, in the context of which senior counsel had advised:that an application should be made to the Court of Criminal Appeal to reopen the appeal as an argument advanced by Mr Reardon in the appeal had not been addressed in the judgment.This was what was said to constitute the denial of procedural fairness. In order to make clear the issues raised in this application, it is necessary to recount, in a little detail, what has preceded it.A short history of the proceedings On 22 March 1999 three men (the applicant, Edgar Hernando Michaels and Clifford Barry Taylor) were arraigned in the District Court on an indictment charging each with conspiracy to import into Australia cocaine in not less than the commercial quantity. In short, the prosecution alleged that the applicant, Michaels, Taylor and a fourth man, Ian Cox (who was subsequently tried separately on a similar charge) and others had agreed to obtain cocaine in Chile for the purpose of importing it into Australia, and that the applicant had twice travelled to Chile where he had involved himself with other conspirators. Unknown to the applicant, one of the individuals with whom he was dealing (identified as “W” in the 4 June judgment) was an informer of the National Crime Authority (“the NCA”); another was a Chilean police undercover operative. The conspiracy was subject to constant monitoring and surveillance, in a cooperative operation by NCA officers and Chilean police. Records of the surveillance operation were maintained. The operation was code-named “Opaline”. The records included a series of documents known as “running sheets”, which were maintained electronically.