Citation: R v Saleam [1999] NSWCCA 342
Court: NSW Court of Criminal Appeal
Date: 12 October 1999
Judge(s): Newman J; Studdert J; Hulme J
Background
The appellant was convicted in October 1994 by Judge Viney in the District Court, following a judge-alone trial, of conspiring to maliciously damage by fire a motor vehicle belonging to a political associate. The Crown case rested on statements from the co-conspirator, the vehicle's owner, and police officers, as well as publications written by the appellant. The appellant made an unsworn statement at trial in which he admitted the conduct but claimed he had been entrapped into committing the offence by his former wife and, he believed, a police officer from the NSW Special Branch.
He was sentenced to a minimum term of six months imprisonment (backdated to July 1994) and an additional term of eighteen months on parole. The sentence was already being served concurrently with a longer existing sentence for other offences, and it had expired well before any appeal was lodged.
The notice of appeal was not filed until December 1997, more than three years after the 28-day period permitted under the Criminal Appeal Act. The appellant therefore required the Court's indulgence to extend time before any appeal could proceed.
Legal Issues
- Whether the Court should grant an extension of time to appeal, given the significant delay of approximately three years beyond the statutory 28-day period.
- Whether the trial judge erred by not excluding the Crown's evidence on the basis that the offence was instigated by a police officer (relying on the principle in Ridgeway v The Queen).
- Whether the entrapment argument provided a sound legal basis for overturning the conviction.
Decision
Hulme J (with Newman J and Studdert J agreeing) identified four independent reasons to refuse the extension of time. First, the appellant had admitted his own guilt on the face of the trial record. Second, the sentence had already expired before the appeal was commenced, meaning there was no practical benefit to be obtained. Third, the grounds advanced did not justify the delay, with part of that delay being a deliberate choice by the appellant to await findings from the NSW Police Royal Commission. Fourth, the principal legal argument was not sound.
On the entrapment argument, the appellant relied on the High Court's decision in Ridgeway v The Queen, contending that because a police officer was the principal instigator of the offence, the Crown's evidence should have been excluded. The Court found this submission overlooked a critical point: even if the factual premise were accepted, the exclusion of evidence in such circumstances remains a matter of judicial discretion, not an automatic right. At trial, the Crown's evidence was tendered without objection, despite the appellant being represented by experienced counsel. The subsequent admission of guilt by the appellant gave the Court no basis to interfere.
The Court also took the opportunity to clarify its own institutional role. It observed that its function is to hear appeals against convictions and sentences, not to supervise bodies responsible for investigating improper conduct by police or others. This observation was directed at the appellant's broader ambition to "ventilate every aspect" of alleged police misconduct through the appeal.
Orders Made
- Extension of time within which to appeal: refused.
- Appeal dismissed as incompetent.
Key Takeaways
- Refusing an extension of time to appeal is appropriate where the applicant admitted guilt at trial, the sentence has already expired, the delay was partly a matter of deliberate choice, and the legal grounds advanced are not sustainable.
- The principle in Ridgeway v The Queen does not automatically require the exclusion of evidence obtained through alleged police instigation. The court retains a discretion, and failure to object at trial (particularly when represented by experienced counsel) will weigh heavily against a later challenge on appeal.
- Where a ground of appeal was not pursued at trial through objection or challenge, the Court of Criminal Appeal will be slow to intervene, especially where the appellant subsequently admitted the conduct in question.
- In dismissing the appeal, the Court of Criminal Appeal reaffirmed the limits of its own jurisdiction: it exists to correct errors in convictions and sentences, not to serve as a forum for broader complaints about police conduct or misconduct investigations.
- An appellant's strategic decision to delay filing pending the outcome of a separate public inquiry does not constitute an adequate reason for the court to extend the time for appeal.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act (NSW), s 10 (time limit for lodging an appeal)
Cases:
- Ridgeway v The Queen (1994-5) 184 CLR 19 (High Court of Australia)