R v Rimon (dec'd)

[2003] VSCA 136

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 295 of 2001

THE QUEEN

v.

ROBERT KIM RIMON (deceased)

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JUDGES:	WINNEKE, P., VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 September 2003
DATE OF JUDGMENT:	8 September 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 136

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Criminal law – Effect of death of applicant prior to disposition of application for leave to appeal – s.367 Crimes Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C. (D.P.P.)	K. Robertson, Solicitor for Public Prosecutions

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WINNEKE, P. (delivering the judgment of the Court):

1. In the matter of Robert Kim Rimon, the order of the Court will be that the application for leave to appeal against conviction and sentence is dismissed.

1. The applicant died on 31 August 2002 of natural causes.  Evidence of his death is before us in the form of a death certificate issued by the Registry of Births, Deaths and Marriages.  It is dated 29 April 2003.  The issue before us is:  what effect does the death of an applicant have upon the disposition of the application for leave to appeal, which application was extant at the time of death.  Although this Court has, in similar circumstances, dismissed such applications – and we refer to the matters of Williamson and Philips on 28 June 2001 – it would, nevertheless, appear that the reasons for the Court’s acting in the way in which it did on that occasion were not published.

1. In this case the applicant had been convicted in the County Court at Ballarat on 19 November 2001 on five counts of incest upon a stepchild.  He was sentenced to imprisonment for six years and a non-parole period of four years was fixed.  On 13 December 2001 he filed notice of application for leave to appeal against both conviction and sentence. 

1. The answer to the question before us is, in our view, clear. An appeal to the Court of Appeal by a person convicted of and sentenced upon an indictable offence is personal to that person and cannot be pursued by that person’s executor or personal representative. Section 567 of the Crimes Act 1958 confers the right to appeal or make application upon “a person convicted on indictment”, and there is nothing in the Rules which would suggest that the right which the Act confers applies to a personal representative. On the contrary, the provisions of the Crimes Act and their tenor make it appear that the right of appeal is strictly personal to the person convicted. This was, and is, a view adopted in England, where the right of appeal is cast in the same terms as the right of appeal in this State. Indeed, the provisions of s.567 of the Crimes Act (Vic.) derive from the Criminal Appeal Act (UK) 1907, s.3.

1. In regard to what we have said, we refer to the case of R. v. Jeffries.[1]  This decision was accepted as being an accurate statement of the position by the House of Lords in R. v. Keiley (No.2),[2] no matter what the situation might be with respect to a “reference” to the Court from the Executive Government pursuant to the equivalent of the power conferred by s.584 of our Crimes Act in Victoria.  For the sake of completeness we also refer to R. v. Harris,[3] Sen v. The Queen[4] and Quartermain v. The Queen[5]. 

   [1](1969) 1 Q.B. 124, per Widgett, L.J.

   [2](1994) 2 A.C. 414 at 422.

   [3](1994) 1 W.L.R. 555.

   [4](1991) 30 F.C.R. 173; 55 A.Crim.R. 349.

   [5](2002) W.A.S.C.A. 345.

1. No appearance having been sought or entered in this application for the applicant, the only proper course for this Court to take is to dismiss the application for leave to appeal against conviction and sentence.  We direct that a copy of the death certificate be placed on the file.

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