Stock v The Queen

[2000] WASCA 196

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   COURT OF CRIMINAL APPEAL

CITATION:   STOCK -v- THE QUEEN [2000] WASCA 196

CORAM:   WALLWORK J

MURRAY J
WHEELER J

HEARD:   1 JUNE 2000

DELIVERED          :   2 AUGUST 2000

FILE NO/S:   CCA 4 of 1996

BETWEEN:   MICHAEL STOCK

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Appeal - Notice of abandonment - Intentional abandonment of appeal by reason of lack of funds and to await official investigation of applicant's allegations - Nullity test not satisfied

Legislation:

Nil

Result:

Application for extension of time refused

Representation:

Counsel:

Applicant:     In person

Respondent:     Mr R E Cock QC

Solicitors:

Applicant:     In person

Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bridges v R (1998) 104 A Crim R 322

R v Medway [1976] QB 779

Case(s) also cited:

La Rosa v The Queen, unreported; CCA SCt of WA; Library No 990151; 29 March 1999

1. WALLWORK J:  The applicant was advised by solicitors at the time he withdrew his appeal on 15 May 1996.  That is stated in the affidavits which he has filed.

2. It is primarily because he was in receipt of legal advice at the time the notice was filed that I agree with the reasons for judgment of Murray J and with the order which is proposed by his Honour.

3. MURRAY J:  On 22 December 1995 the applicant was convicted of two offences of burglary and one of attempted armed robbery.  He was sentenced to an aggregate term of four years imprisonment with eligibility for parole.  He has since served that term.

4. On 10 January 1996 he filed a notice of his application for leave to appeal against his convictions on grounds drafted by the applicant himself but which appear to make allegations that witnesses who gave evidence against him, including police officers, gave perjured evidence at his trial.  The assertion was made that counsel who appeared for the applicant at the trial incompetently or corruptly failed to properly test the evidence of the witnesses against him.  It appears that the applicant referred at least the allegations made against police officers to the Ombudsman for investigation.  He told us that that investigation had now been completed and that he was soon to be interviewed by police officers investigating his allegations of perjury.

5. By a document dated and filed on 15 May 1996 entitled "Withdrawal of Appeal" and directed to the Registrar of the Court of Criminal Appeal, the applicant said, "Having instituted an appeal against various convictions on 8 January 1996 [I] hereby withdraw my appeal."  In my opinion, that document purported to be and was accepted by the court to be a notice of abandonment of the applicant's application for leave to appeal within the meaning of the Criminal Practice Rules O IX r 13.

6. It was not precisely in the terms of the form, which is expressed in the first person and the operative part of which advises that the applicant or appellant gives notice "that I do not intend further to prosecute my appeal, but that I hereby abandon all further proceedings in regard thereto as from the date hereof."  That, in my view, is the effect of the notice given in this case and that is sufficient in law: Interpretation Act 1984 (WA) s 74.

7. The Criminal Practice Rules O IX r 13 provides that:

"Upon such notice being given the appeal shall be deemed to have been dismissed by the Court of Criminal Appeal."

The validity of that rule has not been questioned and the effect is that, subject to the notice being found to be legally ineffective, the appeal instituted by the application for leave is finally disposed of, leaving the applicant in the position that he has exhausted the single appeal afforded him by the Code, whether that appeal be as of right or by leave: Bridges v R (1998) 104 A Crim R 322, 330.

1. No further step was taken by the applicant until, on 8 December 1998, he made an application for an extension of time within which to appeal.  This was an attempt to initiate a new appeal, but no current application for leave to appeal is before the court.  Finally, on 7 March 2000, Miller J referred to this Court the question whether, despite the earlier abandonment of his appeal, the applicant might now be allowed to commence a new appeal to this Court.  On that occasion and on earlier occasions when the applicant appeared before the court, orders were made giving him leave to file affidavits supporting his application and addressing the question of the abandonment of the original appeal. 

2. In particular, there was discussion with the applicant about the advisability of obtaining an affidavit from his solicitors who acted for him at the time when his original appeal was abandoned and who in fact prepared the notice by which that was done.  The applicant does not appear to have pursued that suggestion until he wrote to his former solicitors on 23 May 2000.  In that letter he sought an affidavit as to "Why was an abandon document drafted when it was agreed that I could re‑commence once the Ombudsman's report was finalised."  As I understand it from what the applicant said to us, there was a reply to that letter and the solicitors appear to have declined to provide the affidavit he sought.

3. The evidence before the court is comprised of three affidavits, or documents which may be accepted as affidavits, made by the applicant.  So far as the notice of abandonment is concerned, they tell the same story with variations:

   (1)The first such document appears to have been sworn on 1 April 1999.  In it the applicant says that he could not obtain legal aid to fund his appeal.  He still owed the lawyer who originally acted for him at the trial a portion of his fees.  He could not afford legal assistance on his own account and he was advised (he does not say by whom) that he should wait for the Ombudsman's report upon his allegations of improper conduct by the investigating police.  He says:

   "While my original appeal was abandoned, I was unaware that this would leave me without any avenue of further appeal once the necessary documents [the Ombudsman's report] became available, and have had every intention of pursuing this matter at a later date."

   (2)In a document which appears to have been sworn on 7 February 2000 the applicant again refers to the unpaid account for his solicitors' services and says:

   "It was agreed between [my solicitors] to disbandon [sic] my appeal until the outcome of the Ombudsman's report and to when I would be in a financial position to pay the arrears. … I signed the document believing that the appeal could be heard after the Ombudsman's report."

   (3)Finally, in a document sworn on 4 May 2000, the applicant says that his solicitors told him that they could not represent him without funds.  A solicitor from the firm in question "said he would draft the necessary paperwork to set aside my appeal pending the outcome of the Ombudsman's report and further financial resources."

   It is in that document that the applicant explains most clearly that he was asked to sign the document just before he was to make an appearance in court when the document was brought to him by a police officer.  He says:

   "At the time of signing the document, I was under duress, due to no noise or communication between prisoners and time as I was due to appear.  I had no way of checking anything or obtaining legal advice on the document."

4. The case of Bridges is authority for the proposition that the provision of the Criminal Practice Rules to which I have referred does not preclude the court from exercising an inherent jurisdiction to declare a notice of abandonment to be legally ineffective to procure the dismissal of an appeal or application for leave, on the ground that it is to be treated as a nullity.  The court accepted that the test for determining whether a notice of abandonment is a nullity is that laid down by the English Court of Appeal in R v Medway [1976] QB 779 at 798:

   "In our judgment the kernel of what has been described as the 'nullity test' is that the court is satisfied that the abandonment was not the result of a deliberate and informed decision; in other words, that the mind of the applicant did not go with his act of abandonment.  In the nature of things it is impossible to foresee when and how such a state of affairs may come about; therefore it would be quite wrong to make a list, under such headings as mistake, fraud, wrong advice, misapprehension and such like, which purports to be exhaustive of the types of case where this jurisdiction can be exercised.  Such headings can only be regarded as guidelines, the presence of which may justify its exercise."

5. Medway was the judgment of a bench of five judges as was Bridges.  In Bridges the judgment of the court was that delivered by Ipp J.  At 329, after reviewing the relevant authorities, his Honour said:

   "To summarise, it is the essence of a null notice of abandonment that it was executed or served by an applicant who did not thereby intend to abandon the appeal, or did not understand the nature or effect of the notice, or misunderstood the nature or effect of the appeal itself.  It is only then that the mind of the applicant can be said not to go with the act of abandonment, or that the service of the notice is not the applicant's true act."

6. Guided by those statements of the law, I have reached the conclusion that the notice of abandonment in this case is not a nullity.  It is clear from the applicant's own statements that he made an agreement with his then solicitors that they would prepare the document which he signed and which was filed.  The applicant understood that the effect of that document was to dispose of or abandon the appeal which he had instituted.  He knew what the document was and what would be the effect of filing it.  He made a deliberate decision in that regard and what he describes as the duress attendant upon the signing of the document seems to me not to detract in any way from the proposition that he signed it voluntarily, intending that it should be filed in the court.

7. It seems to me that it does not assist the applicant that he did not understand that he had only one opportunity to appeal, whether by leave or as of right, and that he thought he could commence his appeal anew when ultimately he had the funds to obtain legal representation and when he had an Ombudsman's report upon the investigation of his allegations,

which document he apparently considered might be of assistance in the pursuit of an appeal against his convictions.  In my opinion, any appeal or application for leave to appeal now instituted in relation to those convictions would be incompetent and for that reason the extension of time sought should be refused.

1. WHEELER J:  I have had the advantage of reading in draft the reasons for decision of Murray J.  I gratefully adopt his Honour's outline of the facts and the statement of the law which is set out in the cases of Bridges v R (1998) 104 A Crim R 322 and R v Medway [1976] QB 779. I agree with the view which his Honour has formed that any appeal or application for leave to appeal by the applicant in relation to the convictions in issue here is incompetent. However, my reason for reaching that result is in some respects different from the reasons of his Honour.

2. Based on the documents which were put before us by the applicant, I would not go so far as to find that the applicant understood that the effect of his "withdrawal" of appeal was finally to dispose of or abandon the appeal which he had instituted.  However, as I understand the principle in Medway, a notice of abandonment is only to be treated as a nullity if "the court is satisfied that the abandonment was not the result of a deliberate and informed decision" (at 798, emphasis supplied). In my view, it is not possible for the court to be so satisfied on the basis of the material provided by the applicant.

3. The applicant had legal advice at the time at which the document which was accepted as an abandonment of his appeal was prepared.  Although he says that he was at the time unaware that, if the notice were filed he would be left without any avenue of further appeal once the Ombudsman's report became available, he has not explained what advice he was given which led him to this conclusion, nor who gave it to him. 

4. Reference to the transcript of the directions hearing before Miller J on 7 March 2000 and of earlier occasions when the applicant appeared in this Court, reveals that it was made clear to him that it was important that he have appropriate evidence supporting his claim that he had not intended to abandon his appeal, and particular reference was made to the advisability of obtaining material from the solicitors who acted for him at the time when his original appeal was abandoned.  The applicant did not seek any material from those former solicitors until a time well beyond that set by Miller J as a time within which he should file such affidavits.  He has provided us with no material which sets out the substance of the response from the request which he made to his former solicitors on 23 May 2000 for an affidavit.  The only indication available to us of the

solicitors' response was when the applicant informed us from the bar table that his former solicitors had advised him that the only affidavit they would be able to provide would be one which might suggest that the applicant had committed perjury in some unspecified way.

1. In my view, the lack of particularity in the material provided by the applicant, and the lack of any supporting material from his former solicitors despite his having been advised of the desirability of obtaining such material, have the effect that I am unable to be satisfied that the applicant did, as he asserts, believe that he could commence the appeal anew once the Ombudsman's report was available and he found himself in funds.  It is therefore not necessary for me to decide whether such a belief would satisfy what has been described as the "nullity test", although in my view it is arguable that, particularly based on erroneous legal advice, such a belief may have the effect of making a notice of abandonment a nullity.