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Court of Criminal Appeal 2 May 2016

Riddell v R

[2016] NSWCCA 70

Drugs
CRIMINAL LAW APPEAL UNREPRESENTED APPELLANT IN CUSTODY APPEAL BROUGHT YEARS OUT OF TIME JUDICIAL CASE MANAGEMENT OF APPEAL REFUSAL OF ADJOURNMENT

Citation: Riddell v R [2016] NSWCCA 70
Court: Court of Criminal Appeal, NSW
Date: 2 May 2016
Judge(s): Adams J, Davies J, Beech-Jones J

Background

The appellant was convicted at retrial in January 2007 of conspiring to import a commercial quantity of MDMA into Australia, contrary to the Customs Act 1901 (Cth) and the Criminal Code Act 1995 (Cth). The conspiracy involved 136.9 kilograms of pure MDMA, more than 250 times the commercial quantity, with an estimated street value of approximately $92 million. The trial judge sentenced him to life imprisonment with a non-parole period of 19 years commencing from the date of his arrest in April 2003.

The appellant had been represented at both his original trial (which ended in a hung jury) and his retrial, but he conducted his appeal entirely without legal representation. He filed a Notice of Intention to Appeal in August 2007 and subsequently sought multiple extensions of time. His formal Notice of Appeal was not filed until November 2012, approximately three and a half years out of time.

When the appeal was listed for hearing on 23 October 2015, the appellant applied for a further adjournment. The Court refused that application. The appeal then proceeded, and on the resumed hearing in April 2016 the appellant withdrew both his conviction and sentence appeals entirely. This judgment sets out the Court's reasons for refusing the adjournment in October 2015.

  • Whether the Court should grant a further adjournment to an unrepresented appellant in custody who sought additional time to organise his materials and cross-reference transcript
  • Whether the difficulties faced by a self-represented prisoner in accessing materials and computing resources justified the delay in being ready to proceed
  • The proper exercise of judicial case management where an appeal is substantially out of time and has a lengthy procedural history

Decision

The Court refused the adjournment after examining the full procedural history of the appeal. The appellant had been filing detailed written documents, citing case law, for years, which demonstrated a capacity to prepare substantive materials under the conditions of his custody. The Court found that, notwithstanding the real difficulties of being unrepresented and in custody, he had been given ample time and opportunity to prepare.

The Court noted that the appellant had received approximately 95% of the materials he sought by 2014, giving him at least ten months before the October 2015 hearing date. Rather than using that time to prepare submissions for the appeal, he had devoted substantial effort to filing complaints about preparation difficulties, interlocutory challenges, and requests for more time.

The Court also observed that filing a Notice of Application for Leave to Appeal carries with it an implicit representation of readiness to proceed. The appellant's repeated requests for additional time, stretching back to at least 2008, could not continue indefinitely. The adjournment was refused on the basis that no legitimate justification existed for further delay in circumstances where the appeal was already years out of time.

Orders Made

• Adjournment refused

Key Takeaways

  • The Court of Criminal Appeal confirmed that filing a notice of application for leave to appeal carries an implicit representation that the applicant is ready to have the appeal heard and is ready to take a hearing date.
  • An unrepresented appellant in custody is not entitled to unlimited preparation time, even where there are genuine logistical difficulties in accessing materials and computing facilities.
  • Where an appellant demonstrates the ability to prepare and file detailed, legally referenced documents during the same period, that capacity weighs against claims that further time is needed before the appeal can proceed.
  • Spending available preparation time on complaints about preparation conditions, interlocutory challenges, and requests for extensions, rather than on preparing the appeal itself, does not constitute a justification for a further adjournment.
  • Ultimately the appellant withdrew both his conviction and sentence appeals after the adjournment was refused and after the Court granted leave for him to rely on extensive written submissions, rendering the substantive grounds of appeal academic in this judgment.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(b)
- Criminal Code Act 1995 (Cth), s 11.5(1)

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