Verban v The King - [2025] SASCA 14

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
VERBAN v THE KING
[2025] SASCA 14
Judgment of the Honourable Acting Chief Justice Livesey
13 February 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - ABANDONMENT OF APPEAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - NOTICES OF APPEAL - GENERALLY
Application for leave to withdraw the applicant’s notice of discontinuance of appeal against conviction under r 201.6(3) of the Joint Criminal Rules 2022 (SA) and leave to amend the grounds of appeal. The Director of Public Prosecutions (SA) consented to orders granting leave to withdraw the notice of discontinuance and amend the grounds of appeal.
The applicant contended that he did not receive proper legal advice about discontinuing his appeal and, consequently, he did not make a deliberate or informed decision to abandon his appeal against conviction.
Held, granting leave to withdraw the notice of discontinuance and amend the grounds of appeal:
1.The Court has a broad discretionary power to grant leave to withdraw a notice of discontinuance. Relevant considerations in the exercise of this discretionary power include the applicant’s reasons for discontinuing and then seeking to reinstate the appeal, the length of time involved, any prejudice arising from dismissal or reinstatement, the merits of the appeal, and the public interest in the finality of litigation.
2.The attitude of the Director to an application to withdraw a notice of discontinuance of appeal, whilst important, does not relieve the Court of the need to determine for itself whether it should favourably exercise the discretionary power conferred.
3.The applicant established that the filing of the notice of discontinuance was not the result of a deliberate and informed decision to bring his right to appeal against conviction to an end. A finding that the applicant’s notice of discontinuance was not the result of a deliberate and informed decision is important but not necessarily determinative.
4.This is a proper case in which to grant the applicant leave to withdraw the notice of discontinuance given the uncontested evidence that the applicant's notice of discontinuance was not the result of a deliberate and informed decision, the proposed appeal is not without merit, reinstatement will not cause prejudice, and the proposed new appeal is realistically the applicant’s first opportunity to pursue his right to appeal.

Criminal Appeal Act 2004 (WA) s 40; Criminal Procedure Act 1921 (SA) ss 157, 158; Joint Criminal Rules 2022 (SA) rr 192.4, 201.3, 201.6, referred to.
Ching v The King [2025] WASCA 2; Ryan v The King [2024] SASCA 94, discussed.
Buckmaster v The King [2022] SASCA 101; M v The Queen (1994) 181 CLR 487; R v Brain (1999) 74 SASR 92; R v J, SM [2015] SASCFC 185; R v McRae [2013] SASCFC 89; R v Moore [1957] 1 WLR 841; R v Preston (2004) 145 A Crim R 211, considered.

VERBAN v THE KING
[2025] SASCA 14
Court of Appeal – Criminal
LIVESEY ACJ:
Introduction

Mr…

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.

Continue reading Verban v The King

Details

AGLC: Verban v The King [2025] SASCA 14
Case: [2025] SASCA 14
Decision Date: 13 February 2025

CaseChat Overview and Summary

In *Verban v The King*, the applicant sought leave to set aside a notice of discontinuance previously filed in relation to his criminal appeal. The matter came before Acting Livesey CJ.

The central legal issue before the Court was whether it was appropriate, in the circumstances, to permit the applicant to withdraw his notice of discontinuance and proceed with his appeal. This involved considering the public interest in the finality of litigation against the applicant's right to pursue his appeal.

Acting Livesey CJ reasoned that this was a proper case to grant the applicant leave to set aside the notice of discontinuance. His Honour noted that the proposed new appeal represented the applicant's first realistic opportunity to pursue his right to appeal his convictions under sections 157(1)(a) and 158(1)(a) of the *Criminal Procedure Act 1921* (SA). Consequently, the applicant was granted leave to withdraw the notice of discontinuance and to amend his grounds of appeal. The appeal was scheduled to be heard by the Court of Appeal on 14 August 2025.

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

Despite the public interest in the finality of litigation, this is a proper case in which to grant the applicant leave to set aside the notice of discontinuance. Apart from the considerations already mentioned, the proposed new appeal is realistically the applicant’s first opportunity to pursue his right to appeal, or seek permission to appeal, his convictions under ss 157(1)(a) and 158(1)(a) of the Criminal Procedure Act 1921 (SA).Conclusion The applicant will be given leave to withdraw the notice of discontinuance. It is also appropriate to grant the applicant leave to amend his grounds of appeal. The appeal will be heard by the Court of Appeal at 10.15 am on Thursday, 14 August 2025, with half a day set aside.

Ratio Decidendi

Legal Principle Established

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