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11
Court of Criminal Appeal 10 May 2023

Gould v R

[2023] NSWCCA 103

Also reported as 308 A Crim R 14
Public order & justice offences
APPEALS LEAVE TO APPEAL PRINCIPLES GOVERNING SECOND APPLICATION FOR LEAVE TO APPEAL PROCEDURE TIME LIMITS

Citation: Gould v R [2023] NSWCCA 103
Court: Court of Criminal Appeal, New South Wales
Date: 10 May 2023
Judge(s): Bell CJ (at [1]); Rothman J (at [148]); Garling J (at [164])

Background

The applicant was convicted after a 17-day jury trial of attempting to pervert the course of justice contrary to s 43 of the Crimes Act 1914 (Cth). The conviction arose from his coaching of a witness who gave evidence over ten days in Federal Court tax proceedings, including by sending him "Question and Answer" documents, rehearsing his evidence by telephone and Skype, and continuing to do so while the witness was under cross-examination despite a judicial direction that this not occur.

Following conviction, the applicant was initially sentenced to 3 years and 4 months imprisonment with a non-parole period of 1 year and 8 months. The Court of Criminal Appeal allowed the Crown's sentence appeal and resentenced him to 6 years imprisonment with a non-parole period of 3 years and 6 months.

The applicant had already sought leave to appeal against his conviction, in proceedings heard over two days before a bench of three judges, and leave was refused after a full hearing on the merits. He then engaged a new legal team, abandoned a pending High Court special leave application, and filed a second application for leave to appeal against conviction some eight months after the first refusal and approximately eleven months outside the time limit prescribed by the rules.

Legal Issues

  • Whether a prior refusal of leave to appeal following a full hearing on the merits creates a jurisdictional bar preventing the Court of Criminal Appeal from entertaining a second application for leave to appeal.
  • Whether an extension of time should be granted to bring the second application, where the only material change of circumstances was the retention of new lawyers who had identified additional grounds.
  • Whether the failure of counsel at the first appeal to raise certain grounds amounted to a denial of procedural fairness, bringing the case within a recognised exception to the preclusive principle.
  • Whether grounds of appeal said to go to the "root of the proceedings" should attract leave regardless of whether they were available to be raised at trial or at the first appeal.
  • Whether allegations of counsel incompetence raised only in oral argument supported a grant of an extension of time.

Decision

Issue 1: Jurisdictional Bar

The Court noted that intermediate appellate courts in other States, applying the High Court's decision in Grierson v The King, have treated a prior refusal of leave after a merits hearing as creating a jurisdictional bar to any further application. However, in New South Wales, this Court is bound by its own decision in Lowe v The Queen, which accepted that a refusal of leave does not technically destroy jurisdiction to entertain a further application (at [44]-[53]). The Court proceeded on that basis, while emphasising that the absence of a jurisdictional bar does not resolve the matter, because a prior refusal remains a powerful discretionary factor weighing against a second application (at [54]).

Issue 2: Extension of Time

The Court refused the extension of time for twelve distinct reasons (at [105]-[137]). The applicant had already received, in substance, a full merits hearing challenging his conviction, conducted over two days before three judges with no restrictions on submissions or argument (at [59]-[60]). All sixteen draft grounds were grounds that were available to be raised at the first appeal hearing; none depended on new evidence or a change in the law (at [21]). The only explanation for the second application was that a new legal team had scoured the record and identified additional arguments, which the Court characterised as a "second go" that the interests of justice did not require (at [111]). The Court also noted that, had the first Court granted leave to appeal and then dismissed the appeal, Grierson would have precluded any further application entirely, making it a triumph of form over substance to permit the second application merely because the first Court chose to refuse leave rather than grant and dismiss (at [131]).

Issue 3: Denial of Procedural Fairness

The applicant argued that the failure of counsel to raise certain grounds at the first appeal amounted to a denial of procedural fairness, bringing the case within a recognised exception to the Grierson principle. The Court rejected this submission. The recognised exception, drawn from Pantorno v The Queen, is directed at situations where a court has not heard argument on an issue falling within the scope of existing grounds, not at situations where counsel chose not to advance certain grounds at all (at [124]-[126]). The Court found no arguable denial of procedural fairness; the Court had heard and determined the arguments that were placed before it, and experienced appellate counsel's decision not to advance particular grounds did not create a procedural fairness problem (at [126], [151]).

Issue 4: Grounds Going to the "Root of the Proceedings"

The applicant submitted that several grounds, particularly those alleging deficiencies in the trial judge's summing-up, were so fundamental that leave should be granted regardless of whether they were raised at trial or at the first appeal. The Court rejected this submission, observing that the principles relied upon were developed in cases where no prior application for leave to appeal had been made (at [116]). At an impressionistic level, the Court also found that the summing-up did not produce a miscarriage of justice, particularly given that it had been prepared in extensive consultation with defence counsel and substantially incorporated a document drafted by defence counsel themselves (at [117]-[119]).

Issue 5: Incompetence of Counsel

The applicant's senior counsel raised incompetence of trial and appellate counsel orally during argument, but it had not been pleaded in the grounds of appeal or addressed in the written submissions. The Court declined to grant an adjournment to allow evidence to be adduced on the point. It held that mere assertions of incompetence, raised "on the run", do not provide a basis for an extension of time, and that the appropriate avenue for such a complaint, if it arises from conduct at an earlier appeal, is a special leave application to the High Court rather than a second application for leave to appeal to this Court (at [112]-[115], [147]).

Orders Made

  • An extension of time within which to file the application for leave to appeal is refused.

Key Takeaways

  • In New South Wales, a prior refusal of leave to appeal following a full merits hearing does not create a jurisdictional bar to a second application for leave to appeal, but it constitutes a powerful discretionary factor weighing against any extension of time to bring such an application (at [52]-[54]).

  • Retaining new lawyers who identify additional grounds of appeal, without any change in the underlying facts, the law, or the circumstances of the proceedings, does not constitute a material change of circumstance capable of warranting a second application for leave to appeal (at [111]).

  • The recognised exception permitting a second application where there has been a "denial of procedural fairness" in the first appeal is narrow: it applies where the court itself failed to hear argument on a matter within the scope of the grounds, not where counsel elected not to advance particular grounds (at [124]-[126]).

  • Where a conviction appeal has been heard on the merits and leave refused, the principle of finality in litigation carries significant weight against re-litigation, even in a criminal context, and even where the grounds sought to be raised are said to go to the "root of the proceedings" (at [105]-[110], [127]-[129]).

  • Allegations of incompetence of counsel, if relied upon to support a second application for leave to appeal, must be properly pleaded and supported; where they are directed at conduct during an earlier appeal hearing, the appropriate avenue is a special leave application to the High Court rather than a further application to the Court of Criminal Appeal (at [114]-[115]).

Legislation and Cases Referenced

Legislation
- Administrative Decisions ( Judicial Review) Act 1977 (Cth) s 11
- Crimes ( Appeal and Review) Act 2001 ( NSW)
- s 79(1)(b) , Pt 7
- Crimes Act 1914 (Cth) s 43
- Criminal Appeal Act 1912 ( NSW) s 5(1)( b), 10(1)(b)
- Criminal Procedure Act 2009 ( Vic) s 279, Pt 6.3
- Supreme Court (Criminal Appeal) Rules 2021 (NSW) rr 3.5(1)(b) , 4, 4.15

Cases
- Abdul v The Queen [2013] NSWCCA 247
- Abusafiah v R (1991) 24 NSWLR 531; (1991) 56 A Crim R 424
- Alkhair v R (2016) 255 A Crim R 419; [2016] NSWCCA 4
- Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313
- AP v R [2013] NSWCCA 189
- Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62
- Association of Architects; ex parte Municipal Officers Association (1989) 63 ALJR 298; [1989] HCA 13
- Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
- Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
- Brown v R (2018) 99 NSWLR 151; [2018] NSWCCA 257
- Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
- Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60
- Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R (2011) 209 A Crim R 424; [2011] NSWCCA 62
- Dickson v R (No 2) [2018] NSWCCA 183
- DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17
- D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
- Dow Jones v Gutnick (2002) 210 CLR 575; [2002] HCA 56
- El-Jalk, Antoine v R [2009] NSWCCA 139
- Elliott v The Queen (2007) 234 CLR 38; [2007] HCA 51
- Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34
- Gallo v Dawson (1990) 64 ALJR 458; [1990] HCA 30
- Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373
- Greenhalgh v R [2017] NSWCCA 94
- Grierson v The King (1938) 60 CLR 431; [1938] HCA 45
- Ilioski v R [2006] NSWCCA 164
- Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Laurence v Gunner (No 3) [2016] NSWCA 18
- Lowe v The Queen (2015) 249 A Crim R 362; [2015] NSWCCA 46
- Lowe v The Queen [2013] NSWCCA 141
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Matta v The Queen (1995) 126 FLR 127
- McPhillamy v R [2017] NSWCCA 130
- Mesterovic v R [2016] NSWCCA 140
- Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
- Misrachi v Public Guardian [2019] NSWCA 67
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Nguyen v R (2017) 264 A Crim R 405; [2017] NSWCCA 4
- Nudd v The Queen (2006) 162 A Crim R 301; [2006] HCA 9
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Osman v R (2011) 209 A Crim R 424; [2011] NSWCCA 62
- Pantorno v The Queen (1989) 166 CLR 466; [1989] HCA 18
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Pemble v R (1971) 124 CLR 107; [1971] HCA 20
- Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Prestney v Corporation of Tolchester (1883) 24 Ch D 376
- R v Ali [2008] QCA 39
- R v Birks (1990) 19 NSWLR 677; (1990) 48 A Crim R 385
- R v Condon (1995) 83 A Crim R 335
- R v Edwards [No 2] (1931) SASR 376
- R v Fuge [2001] NSWCCA 208
- R v GAM (No 2) (2004) 9 VR 640; [2004] VSCA 117
- R v Gopurenko [2017] QCA 242
- R v Grierson (1933) 50 WN (NSW) 71
- R v Lumley [2008] QCA 155
- R v Lumley [2009] QCA 172
- R v MAM [2005] QCA 323
- R v McNamara (No 2) [1997] 1 VR 257; (1996) 86 A Crim R 339
- R v Nudd [2007] QCA 40
- R v Parenzee (2008) 101 SASR 469; [2008] SASC 245
- R v Reardon (2004) 60 NSWLR 454; [2004] NSWCCA 197
- R v Saxon (1998) 101 A Crim R 71
- R v Tripodina (1988) 35 A Crim R 183
- R v Upson (No 2) (2013) 229 A Crim R 275; [2013] QCA 149
- R v Upson [2013] QCA 76
- R v Williams [2016] QCA 204
- R v Young [1999] NSWCCA 275
- Re Australian Bank Employees Union ex parte Citicorp Australia Ltd (1989) 167 CLR 513; [1989] HCA 41
- Re Jarman; ex parte Cook (1997) 188 CLR 595; [1997] HCA 13
- Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41
- Sanderson (Court of Criminal Appeal (NSW), 18 July 1994, unrep)
- Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83; [1994] FCA 878
- Sinkovich v R [2014] NSWCCA 97
- Sullivan v Department of Transport (1978) 20 ALR 323; [1978] FCA 48
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
- Tsiakas v R [2015] NSWCCA 187
- Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819; [2022] HCA 28
- Visser v The King [2023] VSCA 10
- Wilkshire and Coffey v The Commonwealth of Australia (1976) 9 ALR 325
- Wong v R [2009] NSWCCA 101
- Xie v R (2021) 386 ALR 371; [2021] NSWCCA 1