Riddell v R (No 2)

[2016] NSWCCA 74

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Riddell v R (No 2) [2016] NSWCCA 74
Hearing dates:	23 October 2015 & 1 April 2016
Date of orders:	01 April 2016
Decision date:	01 April 2016
Before:	Adams J at [1] Davies J at [1] Beech-Jones J at [1]
Decision:	1.   Refuse leave to file notice of motion dated 31 March 2016.  2.   To the extent necessary, grant the Applicant leave to withdraw his appeal.
Catchwords:	CRIMINAL LAW – appeal – Applicant seeks leave to file notice of motion re-agitating earlier application – Applicant sought to withdraw appeal – leave to file notice of motion refused. To the extent necessary leave to withdraw appeal granted.
Legislation Cited:	Criminal Appeal Act 1912 (NSW)
Category:	Procedural and other rulings
Parties:	Andrew Riddell (Appellant) Crown
Representation:	Counsel: In person (Appellant) M. England & A. Rose (Crown) C. Waterstreet (amicus curiae)   Solicitors: Unrepresented (Appellant) Commonwealth Director of Public Prosecutions (Crown)
File Number(s):	2004/013814

Court of Criminal Appeal

Supreme Court

New South Wales

Court or Tribunal:   District Court of NSW

Jurisdiction:   Criminal

Medium Neutral Citation:   

Date of Decision:   17 August 2007

Before:   Hosking DCJ

File Number(s):   2004/013814

EX TEMPORE JUDGMENT (on application by Applicant for leave to file a notice of motion – revised from transcript)

1. ADAMS J: The first matter to be dealt with is a notice of motion and leave is required to file the notice of motion. The notice of motion seeks to reinstate his application seeking leave to appeal the orders of Justice Hulme filed on 27 August 2015 and his motion filed on 25 September 2015. Those applications call for equitable relief and/or orders and declarations “that will serve to restore the applicant’s substantive common law and corresponding constitutional right to set aside the perverse conviction” and (c) his appeal’s bail application filed 22 October 2015.

2. As to the first matter this was in substance dealt with on the last occasion and orders made in relation to the provision of further material. Accordingly, this matter has already been dealt with by the Court. Secondly, the motion of 25 September 2015 has also been dealt with on the last occasion. Thirdly, the applications relating to what is called equitable relief and declarations are not within the purview of this Court for the purpose of dealing with this appeal. Accordingly, there is no basis for considering such an application and since we are here to hear the appeal the question of bail doesn’t arise and at all events is not before the Court. For those reasons I propose that the leave to file the notice of motion should be refused.

3. DAVIES J: I agree.

4. BEECH-JONES J: The effect of the orders made on the last occasion was that the applicant was able to place before this Court written submissions totalling 690 pages. The result of that was to modify to a very substantial degree the orders that were made by R.A. Hulme J which the Applicant wishes to again complain about. Further, lest there be any misunderstanding, this applicant has had every opportunity since the matter was adjourned to respond to the Crown’s written submissions that were filed prior to the hearing on the last occasion. In addition, there appears to be some underlying complaint from the applicant that he has not had the opportunity to respond to the further submissions of the Crown which have sought to address the 690 pages which I referred to earlier. Of course the very point of today’s hearing is to enable him to have that opportunity. For those additional reasons and the reasons given by Adams J I agree with his Honour’s proposed order.

5. ADAMS J: Accordingly leave is refused.

[The hearing of the appeal then continued]

EX TEMPORE JUDGMENT (on application by applicant to withdraw his appeal)

6. ADAMS J: In this matter the applicant has for the reasons which he has stated “for the record” and which are on the transcript decided that he wishes to abandon his appeals both as to conviction and sentence.

7. The Crown submits firstly that there is a discretion in this Court to refuse to permit abandonment, that is to say that leave of the Court is required before he should be permitted to abandon his appeals. The Crown points to the extensive amount of work already done by the Crown in relation to this matter and the time that the Court has spent dealing with it over the years and more recently in reading submissions, attending and reading evidence and submits, as I understand her, that it is not in the interests of the due administration of justice to permit the appeals to be abandoned on the assumption that leave is required. Does that fairly state your position, Ms Crown?

8. CROWN PROSECUTOR: Very fairly, with respect.

9. ADAMS J: Thank you. The Court is of the view however that firstly there may well be a right to abandon an appeal. Neither the Criminal Appeal Act 1912 nor the Criminal Appeal Rules mention the necessity for leave but even if leave were required we consider that it is appropriate to grant leave. The applicant is unrepresented. The case does have some complexities. He says for various reasons he is not ready. Objectively speaking it is very difficult to accept that submission and, indeed, we have rejected an adjournment based on that argument. However, it seems to me that the Court ought not prevent him from the abandoning of his appeals if that is what he wishes to do. There is no discernible prejudice to the Crown. It follows therefore that I would propose that the appeals be abandoned.

10. DAVIES J: I agree.

11. BEECH-JONES J: I agree with the reason and orders proposed by Adams J. I wish to add the following. As stated by Adams J, it seems likely, although it is not necessary to decide, that an appellant in the applicant’s position has a right to withdraw their appeal at any stage. However, even if that is not the position then, notwithstanding the strong points put by the Crown, I would agree with Adams J that as a matter of discretion the Court would grant such leave. This is so because in the absence of any relevant form of prejudice to the Crown, a person who is facing a maximum sentence of life imprisonment should not be forced to pursue an appeal against their will.

12. In stating this it should be noted that I do not accept that this applicant has had anything other than the most generous opportunity to prepare for his appeal. He has had a number of years to do so. It is clear from the materials he has filed at various points that he has had very fulsome access to the material concerning his trial. He has with the leave of this Court, and contrary to the previous view taken by RA Hulme J, already been able to place some 690 pages of written submission before the Court. He has demonstrated an ability to produce written material of large length on short notice. In short, he has had an opportunity to prepare for his appeal that is, as I have said, generous.

13. Of course the position that the Court may take if there is a further attempt to file appeals out of time will be a matter for the relevant Bench that considers it. However, I think it is important to note what I have already just indicated as well as the fact that, despite all these opportunities, the applicant was still protesting that he had not put his appeal in the form that he wished to and that that was what led to him withdrawing his appeal.

14. Finally I should record my, and what I understand is the balance of the Court’s, appreciation of the work undertaken by the Crown in responding to the difficult circumstances that they were confronted with. I otherwise agree with Adams J.

15. ADAMS J: I agree with the additional comments made by Beech-Jones J. Accordingly the Court will note the abandonment of the applicant’s appeals both as to conviction and sentence.

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Decision last updated: 29 April 2016