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Court of Criminal Appeal 14 August 2015

Likumbo Makasa v R

[2015] NSWCCA 259

Sexual offences
CRIMINAL LAW APPEAL

Citation: Likumbo Makasa v R [2015] NSWCCA 259
Court: NSW Court of Criminal Appeal
Date: 14 August 2015
Judge(s): Ward JA (with Adams J and Beech-Jones J agreeing)

Background

The appellant had been convicted in August 2009 on multiple counts arising from the same indictment, including three counts of sexual intercourse with a child aged between 14 and 16 years (contrary to s 66C(3) of the Crimes Act 1900 (NSW)) and a more serious count of aggravated sexual assault (contrary to s 61J).

In 2010, the appellant brought an appeal to the Court of Criminal Appeal in respect of the aggravated sexual assault conviction (count 1 on the indictment). That appeal succeeded: his conviction on that count was quashed, and his sentence on the remaining three counts was backdated, resulting in his release from custody.

In January 2013, the appellant filed a notice seeking an extension of time to appeal against his convictions on the three remaining counts (counts 8, 10 and 16). He was unrepresented on the application, did not appear at the hearing, and had acknowledged in an earlier affidavit that he had received legal advice at the time of his first appeal about the prospects of challenging those three convictions.

  • Whether the Court of Criminal Appeal had jurisdiction to hear a second appeal arising from different counts on the same indictment, where a prior appeal from another count on that indictment had already been determined.
  • Whether an extension of time to file that appeal should be granted.

Decision

Ward JA held that the Court had no jurisdiction to entertain the application. The rule, confirmed in Morgan v R (No 2) [2013] NSWCCA 80 and traceable to R v Grierson (1933), is that this Court cannot hear and determine more than one appeal arising from an indictment containing multiple counts. Once an appeal has been brought and determined in respect of one count, the jurisdiction to entertain a further appeal from any other count on the same indictment is exhausted.

The appellant's first appeal in 2010 had concerned count 1 on the same indictment. The three counts now sought to be challenged were part of that same document. The prior appeal therefore foreclosed any further appellate jurisdiction over those counts, regardless of the merits of the proposed grounds.

Because the jurisdictional bar was fatal to the application, the Court did not need to consider the reasons for the lengthy delay in filing or the substance of the proposed grounds of appeal. The application for an extension of time was dismissed.

Ward JA also noted that, in any event, the appellant had acknowledged in his own affidavit that his former legal advisers had considered but decided not to challenge those three convictions at the time of the first appeal. That context did not alter the jurisdictional analysis, but it formed part of the procedural history before the Court.

Orders Made

  • The application for an extension of time to appeal against the convictions on counts 8, 10 and 16 was dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that it lacks jurisdiction to hear more than one appeal arising from the same indictment, even where the subsequent appeal concerns different counts from those considered in the first appeal.
  • Under the principle established in R v Grierson (1933) and reaffirmed in Morgan v R (No 2) [2013] NSWCCA 80, the one-appeal-per-indictment rule is a hard jurisdictional limit, not a discretionary procedural bar.
  • A successful first appeal that results in a quashed conviction does not preserve or create any fresh right of appeal in respect of other counts on the same indictment.
  • Lengthy procedural histories and unrepresented applicants do not displace a fundamental jurisdictional deficiency; the Court proceeded to dismiss the application in the appellant's absence once satisfied the bar applied.
  • An appellant's own acknowledgment, in a filed affidavit, that prior legal advice addressed the counts now sought to be appealed did not itself drive the outcome, but it formed part of the background the Court noted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 66C(3)

Cases:
- Morgan v R (No 2) [2013] NSWCCA 80
- R v Grierson (1933) 50 WN (NSW) 71
- R v Tyrone Chishimba; Tyrone Chishimba v R; Likumbo Makasa v R; R v Likumbo Makasa; Mumbi Peter Mulenga v R; R v Mumbi Peter Mulenga (2010) NSWCCA 228