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10
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: NSW Court of Criminal Appeal
Date: 10 May 2023
Judges: Bell CJ at [1]; Rothman J at [148]; Garling J at [164]

Background

The applicant was convicted by jury in the District Court on 26 November 2019 of attempting to pervert the course of justice under s 43 of the Crimes Act 1914 (Cth). The conviction arose from his coaching of a witness, Mr Peter Borgas, during Federal Court tax proceedings, including after a judge had directed the two men not to communicate while Mr Borgas was under cross-examination. At the criminal trial, Mr Borgas gave evidence that the testimony he had provided in the Federal Court had been false and had been induced by promises from the applicant that he would be "looked after."

Following conviction, the applicant sought leave to appeal to the Court of Criminal Appeal against both conviction and sentence. Represented by experienced senior counsel, he was refused leave to appeal against conviction on 10 May 2021, after a hearing on the merits under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

The applicant then filed for special leave in the High Court, but abandoned that application after retaining new lawyers. On 14 December 2021, a second application for leave to appeal against conviction was filed in the Court of Criminal Appeal, comprising 16 proposed grounds of appeal. Those grounds did not overlap with the grounds argued at the first hearing, did not involve new evidence, and did not reflect any change in the law. All parties accepted the grounds could have been raised in the original application.

  • Whether the prior refusal of leave to appeal on the merits created a jurisdictional bar preventing the Court of Criminal Appeal from entertaining a second application for leave to appeal (the jurisdiction issue).
  • Whether an extension of time should be granted to bring the second application for leave to appeal out of time (the time extension issue).
  • Whether allegations of incompetence of counsel at trial and at the first appeal provided a basis for granting the extension.

Decision

On jurisdiction: The Court held, following Lowe v The Queen [2015] NSWCCA 46 and the High Court's reasoning in Postiglione v The Queen (1997) 189 CLR 295, that the prior refusal of leave did not create a jurisdictional bar. The Court distinguished the position where leave is granted and an appeal is dismissed (which, under Grierson v The King (1938) 60 CLR 431, forecloses further appeal) from the position where leave is simply refused. No formal challenge to Lowe was made, and the Court proceeded on the basis that it was correctly decided. The Court noted that other Australian states have taken different approaches, but left that question aside.

On the extension of time: Although jurisdiction existed, the Court unanimously refused to extend time. The threshold question was whether the interests of justice required a further opportunity in circumstances where the applicant had already had a full hearing on the merits. The Court held that a prior refusal of leave constitutes a powerful factor weighing against any extension, and that cogent reasons are required before discretion will be exercised in favour of a second application. New arguments occurring to new lawyers, without more, do not supply those cogent reasons.

The Court confirmed that where an applicant has had a full and fair opportunity to advance arguments on leave, the interests of justice are prima facie satisfied by that first hearing, even if it was unsuccessful. Finality in criminal proceedings remains a significant public interest. The prior refusal is not a mere technicality but carries real weight in the discretionary calculus.

On incompetence of counsel: The Court noted that allegations of incompetence at trial and at the first appeal were not raised in any formal grounds of appeal or written submissions. No incompetence was demonstrated on the material before the Court. This ground provided no basis to support the extension sought.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A prior refusal of leave to appeal against conviction in the Court of Criminal Appeal does not, under NSW law, create a jurisdictional bar to a second application for leave. The Court confirmed this position following Lowe v The Queen [2015] NSWCCA 46, while noting divergent approaches in other states.
  • In practice, however, a prior refusal of leave on the merits is a powerful discretionary factor weighing against any extension of time, and a second application will almost always require such an extension.
  • Cogent reasons must underpin any exercise of discretion to extend time for a second application. The emergence of fresh arguments identified by new legal advisors, without any change in circumstances, new evidence, or shift in the law, does not meet that threshold.
  • Where an applicant has had a full and fair hearing on the first application, the interests of justice are prima facie satisfied by that process, even where the application failed. The principle of finality in criminal proceedings carries significant weight in this analysis.
  • Allegations of counsel incompetence at trial or on a prior appeal will not support an extension of time unless they are properly raised in formal grounds of appeal and supported by evidence. Bare assertions made only in oral submissions are insufficient.

Legislation and Cases Referenced

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

Key Cases:
- Grierson v The King (1938) 60 CLR 431; [1938] HCA 45
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Lowe v The Queen (2015) 249 A Crim R 362; [2015] NSWCCA 46
- Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
- Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
- Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
- R v Nudd [2007] QCA 40
- Visser v The King [2023] VSCA 10
- Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60