Ryan v The King

[2024] SASCA 94

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

RYAN v THE KING

[2024] SASCA 94

Judgment of the Court of Appeal  (ex tempore)

(The Honourable Acting Chief Justice Livesey and the Honourable Justice David)

29 July 2024

CRIMINAL LAW - APPEAL AND NEW TRIAL

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - ABANDONMENT OF APPEAL

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - NOTICES OF APPEAL - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - NOTICES OF APPEAL - TIME FOR APPEAL AND EXTENSION THEREOF

The applicant seeks leave to withdraw his notice of discontinuance filed in respect of an appeal against conviction under r 201.6(3) of the Joint Criminal Rules 2022 (SA). The applicant also sought an extension of time to file his notice of appeal against conviction on all counts. The Commonwealth Director of Public Prosecutions opposed the application.

The applicant alleged that he did not receive sound advice from his legal representatives, and he did not make a deliberate or informed decision to abandon his appeal against conviction. The Court heard evidence from the applicant and from his former legal advisors over two days.

Held, (by the Court) refusing leave to withdraw the notice of discontinuance:

1.The applicant who seeks to withdraw a notice of discontinuance must persuade the Court that the applicant’s circumstances are sufficiently exceptional to warrant the exercise of the power conferred by r 201.6(3) of the Joint Criminal Rules 2022 (SA).

2.On an application to withdraw a notice of discontinuance, it will usually be important for the applicant to demonstrate that no deliberate and informed decision was made to abandon the appeal. That is because a decision of that kind normally represents recognition that the appeal lacked merit or there were sound forensic or other reasons personal to the applicant which motivated the abandonment.

3.The applicant's reasons for discontinuing and then wanting to reinstate the appeal, the length of time involved, any prejudice arising from dismissal or reinstatement, as well as whether the appeal has any merit, may all be relevant considerations. Finally, the public interest in the finality of litigation remains an important, overarching consideration.

4.The applicant was advised of the consequences of discontinuing his appeal against conviction and, after receiving sound legal advice, made a deliberate and informed decision to instruct his legal representatives to abandon the conviction appeal and file the notice of discontinuance on 16 June 2022.

Criminal Code Act 1995 (Cth) ss 11.1(1), 134.2(1); Joint Criminal Rules 2022 (SA) r 201.6(3); Supreme Court Criminal Appeal Rules 1996 (SA) r 9, referred to.

R v Brain (1999) 74 SASR 92; R v McRae [2013] SASCFC 89, discussed.

R v Hill [2021] SASCA 83; R v J, SM [2015] SASCFC 185; R v McNamara (No 2) [1997] 1 VR 257; R v Moore [1957] 1 WLR 841; R v Preston (2004) 145 A Crim R 211; Ryan v The King [2022] SASCA 110; Ryan v The King [2024] SASCA 44; Tognolini v R (No 2) [2012] VSCA 311, considered.

RYAN v THE KING
[2024] SASCA 94

Court of Appeal – Criminal: Livesey A/CJ and David JA

1. THE COURT: This is an application by Todd Patrick Richard Ryan (‘the applicant’) for leave to withdraw his notice of discontinuance filed in respect of an appeal against conviction. The applicant also seeks an extension of time to file his application to appeal against conviction on all counts. The Commonwealth Director of Public Prosecutions (‘the respondent’) opposes the application and submits leave should be refused.

2. By way of background, the following matters are common ground between the parties.

   - The applicant was charged with 13 counts of dishonestly obtaining a financial advantage from a Commonwealth entity by deception contrary to s 134.2(1) of the Criminal Code (Cth) (‘the Criminal Code’), and two counts of attempting to dishonestly obtain a financial advantage from a Commonwealth entity by deception, contrary to ss 11.1(1) and 134.2(1) of the Criminal Code. In relation to five offences (counts 11-15), the applicant was jointly charged with his then wife, Ms Amy Hill. The offending was committed between 2010 and 2011.

   -    On 13 November 2020, after a trial by jury in the District Court of South Australia, the applicant was convicted of all offences, and his co-accused was convicted of counts 11 to 15.

   -    On 29 March 2021, the applicant was sentenced. For the 10 offences for which he was solely charged (counts 1 to 10) the sentencing Judge imposed a sentence of six years’ imprisonment. For the five counts with which he was jointly charged with Ms Hill, the Judge imposed a single sentence of four years’ imprisonment. Her Honour ordered the two sentences be served concurrently, resulting in a head sentence of six years’ imprisonment. A non-parole period of three years and six months was fixed. The sentence was backdated to commence on 21 October 2020. The applicant was released on parole on 20 April 2024.

   -    On 22 April 2021, the applicant filed Notices of Appeal against his convictions (referable to all counts) and sentence. At the time of filing the appeal notices, he was not legally represented.

   -    From approximately July 2021, the applicant was represented by Ms Emma Shaw of the Legal Services Commission (‘the LSC’). 

   -    On 26 August 2021, the Court of Appeal allowed an appeal against conviction brought by Ms Hill and remitted her charges (counts 11-15) for retrial in the District Court.[1]  On 29 October 2021, the respondent entered a nolle prosequi on each of the remitted charges.

   -    On 24 September 2021, the respondent’s solicitor emailed Ms Shaw and invited her to amend the applicant’s grounds of appeal to include a ground identical to the successful ground in Ms Hill’s notice of appeal.  The respondent advised that it would concede permission to appeal on that ground. 

   -    On 8 March 2022, the applicant filed an amended notice of appeal against conviction.  The amended notice only challenged the applicant’s convictions on counts 11 to 15, and included the ground of appeal that was successful in respect of Ms Hill, namely that ‘the Learned Trial Judge (LTJ) erred as a matter of law in failing to direct the jury to consider the case with respect to Counts 11-15 against the applicant separately from that against the co-accused, to identify that separate case and the evidence inadmissible against the applicant, and to give adequate direction as to the application of the law to that separate case.’

   -    On 16 June 2022, the applicant filed a notice of discontinuance of appeal against conviction.  That notice was signed by Ms Shaw as solicitor for the applicant.

   -    On 21 October 2022, the applicant’s appeal against sentence was dismissed by this Court.[2]

   -    On 24 May 2023, the applicant (when unrepresented) filed a notice of appeal against conviction on all counts (‘the 2023 Notice of Appeal’).  In this Court, it is to be inferred that the applicant applies for leave to withdraw the notice of discontinuance filed on 16 June 2022. 

   -    The 2023 Notice of Appeal contains nine grounds of appeal. Briefly, ground one expressly adopts the grounds of appeal against conviction filed on 21 April 2021. Grounds two, three and four appear to assert a legal error, albeit with insufficient particulars. Ground five relates only to counts 11 to 15 and largely replicates the appeal grounds in the amended appeal notice filed on 8 March 2022. Grounds six to nine relate to all counts on the Information.  

   The evidence on the applicationfor leave to withdraw the discontinuance dated 16 June 2022

   [1]     R v Hill [2021] SASCA 83.

   [2]Ryan v The King [2022] SASCA 110.

3. The applicant relies on six affidavits in support of his application for leave to withdraw the discontinuance.[3]  In essence, the applicant’s evidence is as follows:

   -    The applicant did not receive proper advice from his legal representatives about his appeal against conviction.

   -    The applicant had little or no knowledge of the circumstances in which his appeal against conviction was abandoned. In particular, he was not made aware of the content of an email sent by the respondent on 28 April 2022 until 8 August 2023 (that is, after the discontinuance notice was filed). This is an email which enquired whether the applicant was willing to seek consent orders from the Court of Appeal that would see his convictions for counts 11-15 set aside and remitted to the District Court for trial.

   -    The applicant did not ‘appreciate or understand that the notice of discontinuance was a full dismissal of the case on the merits and that it barred all future action on the appeal’ nor that it covered a discontinuance of the ‘whole of the appeal’.

   -    The discontinuance of the appeal was not a ‘deliberate and informed decision’, nor a ‘strategic’ decision by the applicant.

   [3]     Affidavits dated 23 May 2023 (FDN 4), 4 September 2023 (FDN 12), 15 September 2023 (FDN 15), 2 February 2024 (FDN 18), 9 February 2024 (FDN 20) and 24 July 2024 (FDN 43).

4. Given the applicant’s evidence concerning his lack of understanding about the effect of a notice of discontinuance, the communications between the applicant and his legal representatives between 8 March 2022 and 16 June 2022 are of significance.[4]  The applicant was cross-examined.

   [4]     Ryan v The King [2024] SASCA 44.

5. The Court also received affidavits from Ms Grist, a solicitor with the respondent, and from the applicant’s former legal representatives, Ms Shaw and Mr Weir.  The relevant file was produced under subpoena.  Ms Shaw and Mr Weir were cross-examined by the applicant.

   Legal principles - the power to withdraw a notice of discontinuance

6. An appellant may discontinue an appellate proceeding (other than a case stated) by filing a notice of discontinuance in the prescribed form. Upon a notice of discontinuance being filed, the appellate proceeding is deemed to have been dismissed by the Court.  Under r 201.6(3) of the Joint Criminal Rules 2022 (SA), a notice of discontinuance may be withdrawn with leave of the Court. 

7. Rule 201.6(3) effectively replaced r 9 of the Supreme Court Criminal Appeal Rules 1996 (SA) which provided for the withdrawal of a notice of abandonment with leave of the Court.  The principles articulated in respect of the former rule continue to apply to the present rule.  Many were developed in connection with the exercise of the Court’s inherent jurisdiction.[5]  In R v Brain,[6]  Doyle CJ explained the approach to an application for leave to withdraw a notice of discontinuance:

   An appellant would 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 essence, it can be said to lead to a determination on the merits because the abandonment can be read as an acknowledgement 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 where there are circumstances affecting the quality of the decision to abandon the appeal. 

   [5]     R v Moore [1957] 1 WLR 841; R v McNamara (No 2) [1997] 1 VR 257; Tognolini v R (No 2) [2012] VSCA 311, [11]-[21].

   [6] (1999) 74 SASR 92, [46].

8. In R v McRae,[7] the Court of Criminal Appeal reviewed a number of the authorities concerning the re-opening of appeals dismissed without regard to their merits, as well as appeals determined on their merits, both in this State and elsewhere, before considering r 9 of the Supreme Court Criminal Appeal Rules 1996 (SA).  The Court confirmed that leave to withdraw a discontinuance should not be given where the applicant had deliberately abandoned the appeal.[8] 

   [7] [2013] SASCFC 89, [20]-[39] (Peek J, with whom Stanley and Nicholson JJ agreed).

   [8]     R v McRae [2013] SASCFC 89, [36]-[37] (Peek J, with whom Stanley and Nicholson JJ agreed).

9. Once an appeal has been resolved by discontinuance and dismissal, that must ordinarily be regarded as final.  It is important to the orderly administration of justice that controversies, once quelled, are not reagitated without good reason.  The applicant who seeks to withdraw a notice of discontinuance must persuade the Court that the applicant’s circumstances are sufficiently exceptional to warrant the exercise of the power conferred by r 201.6(3) of the Joint Criminal Rules 2022 (SA).

10. Leave to withdraw a notice of discontinuance or reinstate an appeal which has not been determined on its merits should not usually be given where the appellant made a deliberate and informed decision to abandon the appeal.[9]  That is because a decision of that kind normally represents recognition that the appeal lacked merit or there were sound forensic or other reasons personal to the applicant which motivated the abandonment. 

    [9]     R v Preston (2004) 145 A Crim R 211, [12], per Duggan J (with whom Bleby and Sulan JJ agreed) referring to R v Moore [1957] 1 WLR 841, 842.

11. Accordingly, on an application to withdraw a notice of discontinuance, it will usually be important for the applicant to demonstrate that no deliberate and informed decision was made to abandon the appeal.  An informed decision is usually one made with the benefit of sound legal advice.  That said, the applicant’s reasons for discontinuing and then wanting to reinstate the appeal, the length of time involved, any prejudice arising from dismissal or reinstatement, as well as whether the appeal has any merit, may all be relevant considerations.[10]   Finally, the public interest in the finality of litigation remains an important, overarching consideration. 

    [10]   R v J, SM [2015] SASCFC 185, [6] (Sulan, Peek and Nicholson JJ).

    The applicant’s contentions

12. In the present case, the applicant asserted that he did not understand that the notice of abandonment related to all his convictions including counts 11 to 15, nor that it meant he was barred from instituting all future appeals relating to his convictions.  He contended that it would be contrary to the interest of justice for him to be denied the opportunity to appeal his convictions, particularly given the respondent’s concession that the appeal should be allowed in respect of counts 11 to 15.

13. As to his application for an extension of time (and his explanation for the delay in applying for leave to withdraw the notice of discontinuance), the applicant relied on the following circumstances: his incarceration and inability to ‘gather fresh evidence’; the death of his mother resulting in his depressed state; and his inability to secure funding. 

    Consideration of the application

14. The first question to consider is whether the applicant has established that the dismissal of his appeal against conviction was not the result of his own deliberate and informed decision.

15. At all relevant times the applicant was represented by experienced legal practitioners.  We are satisfied that applicant instructed his legal representatives to file an amended notice of appeal against conviction on 8 March 2022 which related only to counts 11 to 15, and thereby confine his appeal against conviction to those counts. We have reached that conclusion based on the evidence of Ms Shaw and Mr Weir, which we accept in its entirety, given that it is supported by the contemporaneous documents.

16. We do not accept the applicant’s evidence that he was not aware the respondent was willing to concede the conviction appeal in respect of grounds 11 to 15 (relayed by the respondent in an email sent on 28 April 2022 from Ms Russell to the applicant’s legal representatives) until 8 August 2023.  We have reached that conclusion for the following reasons:

    -    The applicant was present via video link at the callover hearing on 15 March 2022 when senior counsel for the respondent advised the Court that the respondent would concede leave and ultimately the appeal against conviction in respect of the joint counts.

    -    The applicant was also present on 28 March 2022 when senior counsel for the respondent conceded that if the appeal was allowed in respect of counts 11 to 15, the applicant’s non-parole period would need to be reviewed. 

17. In evidence, the applicant accepted that he was present during those hearings and heard counsel say that the respondent was willing to concede his appeal against conviction on counts 11 to 15.

    -    On 30 May 2022, during a client conference with Ms Shaw and Mr Weir, Ms Shaw noted that: ‘ES reads out what CTH DPP say they may concede – read out 2 points from Bonnie Russell email of 28/4/22 – re-sentence in Dist Ct.’

18. We are also satisfied that the applicant was advised of the consequences of discontinuing his appeal against conviction and after receiving that advice instructed his legal representatives to abandon the conviction appeal, and file the notice of discontinuance. We accept the evidence of Ms Shaw and Mr Weir to that effect. 

19. It is evident from the LSC file, and the evidence of Ms Shaw and Mr Weir, that the applicant made a strategic decision to discontinue his appeal against conviction because he believed that he would serve less time in custody by only pursuing the appeal against sentence.  The file and evidence demonstrates that the applicant believed that this approach would minimise delay in the appeal proceedings.  In particular:

    -    On 30 May 2022, Mr Weir and Ms Shaw had a telephone conference with the applicant. Mr Weir said that he provided the applicant with the following advice during that meeting:

    By telephone correspondence on 30 May 2022, it was confirmed with Mr Ryan that the Cth DPP was considering conceding the conviction appeal in respect of counts 11‑15 … Advice was given to Mr Ryan that, if instructed, we could inform the Cth DPP that we would agree to the consent orders. Mr Ryan was further advised that a re‑trial would be several months away and that any sentence appeal would be held in abeyance. Mr Ryan expressed his concern about waiting for a retrial. Mr Ryan was given advice that the only way he could run a sentence appeal in the immediate term was to withdraw his conviction appeal and pursue his sentence appeal concerning all counts 1 to 15. We reminded Mr Ryan that if he only pursued his sentence appeal then he would ‘throw away’ his right to appeal the convictions on counts 11 to 15 and that there were no guarantees that his overall sentence would be reduced on appeal.

    -    Ms Shaw’s notes support Mr Weir’s account of the telephone conference on 30 May 2022.

    -    A close examination of the file notes in the LSC file leads to the irresistible conclusion that the Applicant was carefully advised of the consequences of discontinuing his appeal against conviction and his decision to discontinue the appeal was to secure a prompt outcome rather than wait months for a re‑trial and the associated uncertainties.

    -    On 31 May 2022, the applicant sent his legal representatives two sets of written instructions which contradicted each other. The first instructed his lawyers to only appeal the convictions on counts 10 to 15. The second instructed his lawyers to withdraw the appeal against his convictions, and only proceed with an appeal against sentence on counts 1 to 10 (see HG‑14).

    -    As a result of this correspondence, a further telephone conference was held with the applicant on 1 June 2022. In advance of that meeting, a document was sent to the applicant which contained two options for his instructions. The first option was to pursue the conviction appeal. The second option was to discontinue the conviction appeal and proceed with the sentence appeal only. As to the advice and discussions during the conference, Mr Weir said, and we accept:

    Between 30 May and 1 June 2022, Ms Shaw sent to Mr Ryan via his CMC a document for him to sign which would convey his final instructions pending the 27 June 2022 hearing date already set for the conviction appeal. Namely, to pursue both his conviction and sentence appeal or, in the alternative, abandon the conviction appeal and pursue his sentence appeal for all 15 convictions.

    By telephone conference on 1 June 2022, and with the above document in front of him, Mr Ryan was advised of his choice in similar terms as set out above. Again, it was reiterated to Mr Ryan that if he pursued his conviction appeal it would result in a retrial on counts 11 to 15 and that if the Cth DPP had any intention to withdraw those charges against him that it would have already indicated such. It was emphasized to Mr Ryan that he should not provide his final instructions in the hope that the Cth DPP will withdraw the charges as there was a cogent case against him in respect of these counts.

    It was further reiterated during this telephone conference that if he only pursued his sentence appeal that he would be sentenced afresh on counts 1 to 15 and that there was no guarantee that the Court of Appeal would interfere with the original sentence. Therefore, he should not abandon his conviction appeal based on any unlikely expectation. Mr Ryan confirmed that he understood this advice and indicated he was inclined to withdraw his conviction appeal because his retrial would not be heard for several months hence.

    During the same telephone conference, Mr Ryan confirmed that he was happy for his lawyers to contact the Cth DPP and advise of his decision to proceed with his sentence appeal only, along with the Court to seek a revised hearing date. Mr Ryan signed his instructions dated 1 June 2022 and forwarded a copy of the document to Ms Shaw via his CMC. Now produced and marked Exhibit CW-1 is a true copy of the document entitled Instructions of Todd Patrick Richard Ryan dated 1 June 2022.

    -    Ms Shaw’s notes of that meeting and evidence also show that the applicant was provided with clear advice that if he was to discontinue the appeal against conviction, it could not be reinstated. Ms Shaw also noted that the applicant expressly instructed his legal representatives to discontinue his appeal against conviction as it may result in him spending a longer period in custody.

    -    On 1 June 2022, shortly after the meeting, Ms Shaw received the applicant’s signed instructions to abandon the conviction appeal.  Later that day, Mr Weir sent an email to the respondent and advised that he was instructed to abandon the appeal against conviction and proceed only with the sentence appeal in respect of all counts. 

    -    On 2 June 2022, Mr Weir advised the Registry that he had been instructed to abandon the applicant’s conviction appeal.

    -    On 6 September 2022, before the sentence appeal was heard on 16 September 2022, the applicant raised his discontinued conviction appeal with Mr Mead SC, but ultimately confirmed that he did not wish to appeal his conviction.

1. We are satisfied on the evidence that the applicant made a deliberate and informed decision to discontinue the appeal against his convictions based on sound legal advice.  We reject the applicant’s evidence to the contrary.  There are no exceptional circumstances which would justify granting leave to withdraw the notice of discontinuance.

2. The applicant’s notice of appeal (and inferentially, his application to withdraw the notice of discontinuance) was filed on 24 May 2023.  That is more than seven months after the applicant’s sentence appeal was dismissed and over 11 months after the notice of discontinuance was filed. It is more than two years after the original notice of appeal against conviction was filed; over two and a half years after the jury verdicts; and more than 11 years after the offending took place.

3. We are not satisfied that the applicant’s explanations for his delay are satisfactory. The applicant’s grounds of appeal do not rely upon fresh evidence.  The applicant has not provided any details as to the death of family members nor the effect this had upon him.  As to the applicant’s explanation that funding prevented him from filing the application, this is undermined by the fact that he was unrepresented when he filed the notice of appeal against conviction in May 2023.  He was also unrepresented when he filed his original notices of appeal concerning sentence and conviction in April 2021.

   Conclusion

4. For those reasons, it is not in the interests of justice to permit the applicant to withdraw his discontinuance and reinstate his conviction appeal. 

5. We refuse leave to the applicant to withdraw the notice of discontinuance. Whilst it is not strictly necessary to do so, we indicate we would also refuse an extension of time to file a notice of appeal against conviction in the terms proposed.