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Court of Criminal Appeal 1 April 2016

Riddell v R (No 2)

[2016] NSWCCA 74

Other
CRIMINAL LAW APPEAL AGITATING EARLIER APPLICATION APPLICANT SOUGHT TO WITHDRAW APPEAL

Citation: Riddell v R (No 2) [2016] NSWCCA 74
Court: Court of Criminal Appeal, Supreme Court of New South Wales
Date: 1 April 2016
Judge(s): Adams J, Davies J, Beech-Jones J

Background

The applicant, an unrepresented appellant convicted of a serious offence in the District Court, had been pursuing appeals against both conviction and sentence over a number of years. The matter had generated substantial procedural history, including prior hearings before the Court of Criminal Appeal and a ruling by R A Hulme J that had itself been the subject of challenge.

At the hearing on 1 April 2016, the applicant sought leave to file a notice of motion re-agitating several earlier applications, including challenges to Hulme J's orders, claims for what he described as equitable relief and constitutional declarations, and a bail application. The Court had previously permitted the applicant to file 690 pages of written submissions, a significant concession to his unrepresented status.

When leave to file the notice of motion was refused, the applicant then indicated he wished to abandon both his conviction and sentence appeals. The Crown opposed the abandonment, arguing the Court had a discretion to refuse withdrawal and that the extensive work already invested by the Crown and the Court weighed against permitting it.

  • Whether leave should be granted to the applicant to file a notice of motion seeking to re-agitate previously determined applications and claims for equitable relief and constitutional declarations.
  • Whether the Court of Criminal Appeal has jurisdiction to grant the equitable relief and declarations the applicant sought.
  • Whether an appellant requires leave of the Court to withdraw a criminal appeal, or whether withdrawal is a right.
  • If leave is required, whether it should be granted in the circumstances of this case.

Decision

On the notice of motion: Adams J, with whom Davies J and Beech-Jones J agreed, refused leave to file the notice of motion. The prior applications concerning Hulme J's orders and the September 2015 motion had already been dealt with on an earlier occasion. Importantly, the Court held that claims for equitable relief and constitutional declarations fell outside its jurisdiction for the purposes of this appeal. The bail application also did not arise, given the Court was convened to hear the substantive appeal.

On the right to withdraw the appeal: Adams J noted that neither the Criminal Appeal Act 1912 nor the Criminal Appeal Rules expressly require leave before an appellant may abandon an appeal. The Court indicated it was likely, though it was not necessary to decide definitively, that an appellant has a right to withdraw at any stage. Even if leave were required, the Court was prepared to grant it.

The Crown's submission that the interests of the due administration of justice warranted refusal was acknowledged but rejected. Adams J found no discernible prejudice to the Crown in allowing the abandonment to proceed, and the Court considered it inappropriate to compel an unrepresented person to pursue an appeal against their will.

Beech-Jones J added that a person facing a maximum sentence of life imprisonment should not be forced to continue an appeal they wish to discontinue, absent relevant prejudice to the Crown. His Honour also recorded that the applicant had been given generous opportunities to prepare, including years to do so and court-sanctioned leave to file extensive written submissions, and that it was the applicant's own dissatisfaction with the state of his appeal that had prompted the withdrawal.

Orders Made

  • Leave to file the notice of motion refused.
  • To the extent leave was required, leave to withdraw the appeals granted.
  • The abandonment of the applicant's appeals against both conviction and sentence noted.

Key Takeaways

  • The Court of Criminal Appeal confirmed it lacks jurisdiction, in the context of a criminal appeal, to grant equitable relief or make constitutional declarations of the kind sought by this applicant.
  • Applications that have already been determined by the Court on a prior occasion will not be re-agitated simply by filing a fresh notice of motion seeking the same or similar relief.
  • An appellant likely has a right under the Criminal Appeal Act 1912 to withdraw a criminal appeal at any stage without requiring the Court's leave, though the Court left this question open rather than deciding it conclusively.
  • Where leave to withdraw is required, the Court of Criminal Appeal indicated it will exercise its discretion in favour of withdrawal where there is no identifiable prejudice to the Crown, particularly where the appellant is unrepresented and facing a serious sentence.
  • Beech-Jones J's remarks foreshadowed that any future attempt to file appeals out of time will be a matter for the bench that considers it, noting the applicant's extensive prior opportunities to prosecute his appeal.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW)

Cases cited: No cases were cited in the judgment.