AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 30 June 2023

Riddell v R

[2023] NSWCCA 167

Drugs
CRIMINAL APPEAL CASE MANAGEMENT FAILURE TO PROSECUTE APPEAL DILIGENTLY

Citation: Riddell v R [2023] NSWCCA 167
Court: NSW Court of Criminal Appeal
Date: 30 June 2023
Judge: Wright J (sitting as a single judge)

Background

The applicant, an unrepresented appellant convicted in 2007 of conspiring to import 136.9 kg of MDMA, was sentenced to life imprisonment with a non-parole period of 19 years. He was released to parole and deported to the United Kingdom in May 2022. This decision concerned his third application for leave to appeal against conviction and sentence out of time, filed on 6 April 2022.

The application was accompanied by an extraordinary volume of material, including eight electronic volumes running to thousands of pages, hardcopy documents totalling 4,281 pages, and audio recordings of over 600 telephone calls. The application raised 15 grounds of appeal, covering alleged judicial bias, prosecutorial misconduct, evidentiary errors, and sentencing errors, among others.

In September 2022, Beech-Jones CJ at CL made case management orders directing the applicant to file and serve submissions not exceeding 200 pages by 31 January 2023. That direction was confirmed by a three-judge bench in November 2022. The applicant did not comply by the deadline, nor at any time thereafter. The Crown then applied for summary dismissal of the proceedings on the ground that the applicant had failed to prosecute the application diligently.

  • Whether the Court, constituted by a single designated judge, had power to hear and determine the Crown's dismissal application under ss 22(1)(i) and (l) of the Criminal Appeal Act 1912 (NSW) and r 4.1 of the Supreme Court (Criminal Appeal) Rules 2021.
  • Whether the applicant's failure to comply with the 200-page submission direction constituted a failure to prosecute his application for leave to appeal out of time diligently.
  • What the appropriate remedy was: outright dismissal or dismissal with a further opportunity to comply.

Decision

Wright J was satisfied that a designated single judge held the requisite power to dispose of the application. Section 22(1)(i) of the Criminal Appeal Act confers the power to dispose of an appeal for failure to prosecute diligently, and s 22(1)(l) together with r 4.1 of the Rules confers power over procedural and case management matters.

On the substantive question, the court found that the applicant had failed to prosecute his application diligently. His primary justification was that compliance with the 200-page limit was "absolutely impossible" given the complexity of his grounds and the volume of documents he wished to rely upon. However, during the hearing the applicant demonstrated he could describe the substance of some of his grounds in a few sentences, which led the court to conclude he was capable of producing a more succinct summary than he maintained.

Wright J rejected the impossibility argument. Non-compliance with a legitimate case management direction, without justification, constitutes a failure to prosecute an appeal diligently. The appropriate response to that non-compliance was dismissal of the application. However, the court noted both the applicant's tentative indication that he might be able to comply if given six to eight more months, and the Crown's preference to afford him a further opportunity to articulate his appeal rather than simply end the proceedings.

Accordingly, the court ordered dismissal of the whole application but suspended the operation of that order until 9 February 2024. The dismissal order was made conditional: if the applicant filed and served compliant submissions of no more than 200 pages by 7 February 2024, the dismissal order would be discharged.

Orders Made

  • Subject to order (2), the applicant's application for leave to appeal against conviction and sentence out of time (dated 5 April 2022) is dismissed in whole, but the order is not to take effect until 9 February 2024.
  • If the applicant files and serves submissions on his 15 grounds of appeal (including a summary identifying the material relied upon in support of each ground) of not more than 200 pages on or before 7 February 2024, order (1) is discharged.
  • The proceedings are listed for directions before the Registrar on 8 February 2024.
  • The parties have liberty to apply on 3 days' notice.

Key Takeaways

  • A single designated judge of the Court of Criminal Appeal holds power under ss 22(1)(i) and (l) of the Criminal Appeal Act 1912 (NSW), read with r 4.1 of the Supreme Court (Criminal Appeal) Rules 2021, to dismiss proceedings for failure to prosecute diligently and to make binding case management directions.
  • Failure to comply with a court-imposed page limit on submissions, without sufficient justification, can constitute a failure to prosecute an appeal diligently and ground summary dismissal.
  • The bare assertion that compliance with a page limit is impossible does not automatically excuse non-compliance, particularly where the appellant demonstrates during argument some capacity to articulate grounds succinctly.
  • Dismissal for non-compliance need not be immediate or unconditional: the court here suspended the dismissal order for approximately six months and made it defeasible upon the applicant's eventual compliance, balancing the integrity of case management with the applicant's right to pursue a substantive appeal.
  • There is no right of appeal from a single judge exercising the Court of Criminal Appeal's powers under s 22(1); a party dissatisfied with such an order may seek reconsideration of the Court's own interlocutory orders by the full Court.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 22(1)(i), (l)
- Supreme Court (Criminal Appeal) Rules 2021, r 4.1
- Criminal Code Act 1995 (Cth), s 11.5(1)
- Customs Act 1901 (Cth), s 23B(1)(b)

Cases:
- Riddell v R [2016] NSWCCA 70
- Riddell v R (No. 2) [2016] NSWCCA 74
- Riddell v R (No. 3) [2017] NSWCCA 92
- Riddell v The Queen [2022] HCASL 81
- Riddell v R [2022] NSWCCA 198
- Riddell v R [2022] NSWSC 1581
- State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1993) 29 NSWLR 487