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Court of Criminal Appeal 3 August 2005

REGINA v GUIDER

[2005] NSWCCA 386

Assault & violenceFirearms & weapons

Citation: Regina v Guider [2005] NSWCCA 386
Court: NSW Court of Criminal Appeal
Date: 3 August 2005
Judge(s): Simpson J, Adams J, Rothman J

Background

The appellant was convicted in the District Court in May 1999 on two charges: conspiring to commit an armed robbery, and being armed with a weapon with intent to commit robbery whilst armed with an offensive weapon. He was sentenced to a minimum term of seven years and six months' imprisonment, with a concurrent three-year sentence on the second count.

The appellant's initial appeal to the Court of Criminal Appeal was dismissed in September 2000, and the High Court refused special leave to appeal in October 2001. In August 2002, the appellant was released under the Royal Prerogative of Mercy, exercised by the Governor of New South Wales.

In October 2003, the Attorney General referred the appellant's petition to the Court of Criminal Appeal under section 474B of the Crimes Act 1900, giving rise to a fresh appeal. However, the appellant took no meaningful steps to prosecute that appeal over the following two years.

  • Whether the appellant's appeal from conviction should be summarily dismissed for want of prosecution under section 19(2) of the Criminal Appeal Act 1912.

Decision

Adams J, with whom Simpson J and Rothman J agreed, noted that following the Attorney General's referral in October 2003, the appellant made only two communications with the Registrar over almost two years. In April 2005, he wrote to say he could neither represent himself nor afford legal representation, and therefore could not proceed at that time.

The day before the hearing, the appellant contacted the Registrar to say he did not wish to proceed with the appeal and would not be attending Court. He indicated he would be content for the appeal to be struck out. The Crown appeared and submitted that the Court should exercise its summary dismissal powers in the circumstances.

Adams J concluded that summary dismissal was appropriate, and the Court ordered accordingly. All three judges were in agreement.

Orders Made

  • The appeal was summarily dismissed.

Key Takeaways

  • Under section 19(2) of the Criminal Appeal Act 1912, the Registrar may refer an appeal to the Court of Criminal Appeal for summary determination where the appellant has failed to prosecute it.
  • In dismissing the appeal, the Court acted consistently with the appellant's own express indication that he did not wish to proceed and would not attend the hearing.
  • A referral by the Attorney General under section 474B of the Crimes Act 1900 does not, of itself, guarantee that an appeal will proceed: the appellant still bears responsibility for taking steps to prosecute the matter.
  • Failure to take any substantive steps over approximately two years, combined with the appellant's stated unwillingness to continue, provided sufficient basis for summary dismissal.
  • Release under the Royal Prerogative of Mercy does not extinguish an appeal that has been formally referred to the Court of Criminal Appeal; that appeal remains on foot until formally disposed of.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(b) and s 19(2)
- Crimes Act 1900 (NSW), s 474B

Cases: No cases were cited in the provided judgment text.