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15
Court of Criminal Appeal 23 June 2004

R. v. REARDON, Michael Leonard

[2004] NSWCCA 197

Also reported as (2004) 60 NSWLR 454
DrugsPublic order & justice offences
CRIMINAL LAW APPEAL APPLICATION TO RE OPEN AFTER DISPOSAL OF APPEAL PERFECTION OF ORDER WHETHER THERE IS JURISDICTION TO RE

Citation: R v Reardon (No 2) [2004] NSWCCA 197
Court: Court of Criminal Appeal, New South Wales
Date: 23 June 2004
Judge(s): Hodgson JA; Simpson J; Barr J

Background

The applicant had been convicted in the District Court of offences involving the importation of cocaine. On 4 June 2002, the Court of Criminal Appeal dismissed his appeal against conviction. A central element of the applicant's defence at trial had been a "rip-off" defence: that he never intended to import cocaine, but rather intended to defraud a witness of the money supplied for the supposed importation.

Although the 2002 judgment addressed all formally argued grounds of appeal, it did not deal with a suggestion put by senior counsel that certain running sheets kept by the National Crime Authority (NCA) were relevant to the rip-off defence. In July 2003, the applicant filed written submissions seeking to re-open the appeal on the basis that this omission amounted to a denial of procedural fairness.

The applicant argued that the NCA running sheets should have been disclosed by the Crown before trial, and that the failure to disclose them caused a miscarriage of justice by depriving him of material that could have supported his defence.

  • Whether the Court of Criminal Appeal's order had been perfected, thereby exhausting its jurisdiction
  • Whether the Court of Criminal Appeal has jurisdiction to re-open an appeal after the order has been perfected, particularly where a ground of appeal was left undetermined or procedural fairness was denied
  • What principles govern the Crown's duty of disclosure prior to trial
  • Whether the Crown's failure to disclose the NCA running sheets breached that duty
  • Whether the non-disclosure caused a miscarriage of justice, and whether any onus rests on the Crown to show no real chance of acquittal was lost

Decision

Jurisdiction to re-open

The Court held unanimously that the orders made in 2002 had been perfected, by virtue of entries made in the records of the court of trial by 10 July 2002. The Court then applied the principle in Grierson v The King (1938) 60 CLR 431, which it considered binding: once a Court of Criminal Appeal has heard and determined an appeal on its merits and the order has been perfected, it has no jurisdiction to re-open the matter. Limited exceptions exist for the slip rule and for proceedings to set aside orders obtained by fraud, but neither applied here. The application was therefore dismissed for want of jurisdiction.

Crown's duty of disclosure (Hodgson JA)

Hodgson JA nonetheless proceeded to examine the disclosure question. His Honour adopted the principles from R v Keane [1994] 2 All ER 478 and R v Brown (Winston) [1998] AC 367: the prosecution must disclose documents that are material, meaning documents that are relevant or possibly relevant to an issue in the case, that raise a new issue not apparent from the prosecution case, or that hold out a real (as opposed to fanciful) prospect of providing a lead on such evidence. "Issue" is to be interpreted broadly, and the duty extends beyond admissible evidence. Applying those principles, Hodgson JA considered that contemporary surveillance and undercover operational documents, such as the NCA running sheets, should ordinarily be disclosed unless legal professional privilege or public interest considerations excuse non-disclosure.

Miscarriage of justice (Hodgson JA and Simpson J)

Despite finding a likely breach of the disclosure duty, Hodgson JA and Simpson J both concluded that no miscarriage of justice had resulted. Having carefully analysed the limited evidentiary use to which the running sheet entries could have been put at trial, including the difficulties in adducing the opinions of anonymous sources through cross-examination, both judges were satisfied there was no real chance the jury would have acquitted the applicant had the material been available. Barr J agreed the application should be dismissed for want of jurisdiction and on the procedural fairness point, but declined to address the Crown's disclosure obligations in the circumstances.

Orders Made

  • Application to re-open the appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, following Grierson v The King, it has no jurisdiction to re-open a concluded appeal once the order has been perfected, subject only to the slip rule and fraud-based proceedings to set aside orders.
  • A perfected order is not merely the pronouncement of judgment: in this case, perfection occurred through entries made in the records of the court of trial.
  • Under the Keane/Brown principles adopted by Hodgson JA, the Crown's disclosure obligation extends to documents that hold out a real prospect of providing a lead on relevant evidence, is not confined to admissible material, and requires a broad interpretation of what constitutes an "issue in the case."
  • Contemporary operational documents such as police or NCA running sheets created during surveillance or undercover operations fall within the scope of the disclosure duty unless privilege or public interest grounds apply.
  • A breach of the Crown's disclosure duty does not automatically produce a miscarriage of justice: the court must assess whether, on a realistic appraisal of the undisclosed material, there was a real chance the jury would have acquitted the accused.

Legislation and Cases Referenced

Cases cited:
- Grierson v The King (1938) 60 CLR 431
- R v Keane [1994] 2 All ER 478
- R v Brown (Winston) [1998] AC 367
- R v Reardon, Michaels and Taylor [2002] NSWCCA 203
- Pantorno v The Queen (1989) 166 CLR 466
- Jones v Dunkel (1959) 101 CLR 298
- Dyers v The Queen [2000] HCA 45; 210 CLR 285
- Gallagher v The Queen (1986) 160 CLR 392
- Postiglione v The Queen (1997) 189 CLR 295
- DJL v Central Authority (2000) 201 CLR 226
- Bailey v Marinoff (1971) 125 CLR 529
- Jones v The Queen (1989) 166 CLR 409
- Ridgeway v The Queen (1995) 184 CLR 19
- R v Ward [1993] 2 All ER 557
- R v Mills [1998] AC 382
- R v Stinchcombe 69 CCCA (3d) 1
- R v Garofalo [1999] 2 VR 625
- R v McNamara (No 2) [1997] 1 VR 257
- Cannon v Tahche (2002) 5 VR 317
- Grey v The Queen [2001] 75 ALJR 1708
- State Rail Authority of NSW v Codelfa Constructions Pty Ltd (1982) 150 CLR 29
- Various others including Button v The Queen, Easterday v R, R v Reci, Saxon, McIlkenny, R v Davis, and R v Gust