R v Upson (No 2)[2013] QCA 149

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA: I agree with the reasons of Fraser JA and the order he proposes.

[2] FRASER JA: On 19 January 2010 the applicant was found guilty by a jury of carrying on the business of unlawfully trafficking in the dangerous drug cannabis sativa on dates unknown between 1 June 2007 and 30 September 2007.  He was sentenced to eight years imprisonment.  The applicant appealed against his conviction and he applied for leave to appeal against sentence.  On 16 August 2011 the appeal was dismissed and the application for leave to appeal against sentence was refused:  R v Upson.[1]

[3] On 6 January 2013 the applicant filed an application for extension of time within which to appeal and a notice of appeal against conviction and an application for leave to appeal against sentence.  The application for an extension of time to appeal against conviction was refused and the Court reserved its decision on the application for an extension of time to seek leave to appeal against sentence:  R v Upson.[2]  In refusing to grant an extension of time to appeal against conviction, the Court applied the general rule that once the right of appeal against conviction conferred by s 668D of the Criminal Code had been exercised and the appeal has been determined on the merits, the Court has no jurisdiction to entertain a further appeal.  That general rule was established by numerous decisions applying Grierson v The King[3] in the context of appeals against conviction under the Criminal Code: see R v Lumley.[4]  As Daubney J observed,[5] the fact that the applicant wished to raise grounds of appeal against conviction which differed from the grounds which he had argued in his first appeal did not confer jurisdiction in the Court to entertain a second appeal: see R v Nudd.[6]  That the applicant sought to rely upon new evidence in the second appeal also did not justify an exception to the general rule that the Court has no further authority to set aside a conviction after a dismissal upon the merits of an earlier appeal against that conviction: in Grierson itself the ground of the proposed second appeal was that new facts had come to light which might affect the conviction.

[4] The respondent cited Grierson, Nudd and Lumley for the further proposition that the right of appeal against sentence conferred by s 668D of the Criminal Code was exhausted when the Court refused the application for leave to appeal against sentence in 2011.  The Court reserved its decision on that aspect of the application.  For the following reasons the respondent’s argument should be accepted.

[5] The general rule in Grierson applies in cases where an application for leave to appeal against sentence has earlier been granted and the appeal has been determined on its merits: R v Senior;[7] R v Hedland.[8]  The question in this application, however, is whether the general rule in Grierson applies to an application for leave to appeal against sentence when an earlier application for leave to appeal against sentence was refused upon the merits of the proposed appeal.  Before I discuss the authorities upon that question I will refer to the relevant statutory provisions.

[6] In relation to indictable offences, rights of appeal against conviction and sentence alike are conferred upon convicted persons by s 668D of the Criminal Code:

“(1)A person convicted on indictment, or a person convicted of a summary offence by a court under section 651, may appeal to the Court—

(a)against the person’s conviction on any ground which involves a question of law alone; and

(b)with the leave of the Court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal, against the person’s conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the Court to be a sufficient ground of appeal; and

(c)with the leave of the Court, against the sentence passed on the person’s conviction.

(2)A person summarily convicted under section 651 may appeal to the court, with the leave of the court, against the sentence passed on conviction, including any order made under that section.”

[7] Section 668E provides:

“(1)The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.

(1A)However, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

(2)Subject to the special provisions of this chapter, the Court shall, if it allows an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.

(3)On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”

[8] The time for appealing is prescribed by s 671:

“(1)Any person convicted desiring to appeal to the Court, or to obtain the leave of the Court to appeal from any conviction or sentence, shall give notice of appeal or notice of application for leave to appeal, in the prescribed manner, within 1 calendar month of the date of such conviction or sentence.

(2)An appeal to the Court by the Attorney-General against sentence shall be made within 1 calendar month of the date of such sentence.

(3)The time within which notice of appeal, or notice of an application for leave to appeal, may be given or within which the Attorney-General may appeal against sentence may be extended at any time by the Court.”

[9] Various powers are conferred on the Court by ss 668F, 669, 670, 671B, and 672.  It is unnecessary to set out these provisions.  Section 671D provides:

“(1)An appellant, notwithstanding that the appellant is in custody, shall be entitled to be present if the appellant desires it, on the hearing of the appellant’s appeal, except where the appeal is on some ground involving a question of law alone.

(1A)On an appeal on such ground, and on an application for leave to appeal, and on any proceedings preliminary or incidental to an appeal, the appellant shall not be entitled to be present, except by leave of the Court.

(2)The power of the Court to pass any sentence may be exercised notwithstanding that the appellant is not present.”

[10] Section 672A provides:

“Nothing in sections 668 to 672 shall affect the pardoning power of the Governor on behalf of Her Majesty, but the Crown Law Officer, on the consideration of any petition for the exercise of the pardoning power having reference to the conviction of any person or to any sentence passed on a convicted person, may—

(a)refer the whole case to the Court, and the case shall be heard and determined by the Court as in the case of an appeal by a person convicted; or

(b)if the Crown Law Officer desires the assistance of the Court on any point arising in the case with a view to the determination of the petition, refer that point to the Court for its opinion thereon, and the Court shall consider the point so referred and furnish the Crown Law Officer with its opinion thereon accordingly.”

[11] In relation to conviction and sentence alike,  a convicted person’s right of appeal is conferred by s 668D(1) and, if the relevant grounds of appeal are established, s 668E confers power upon the Court to set aside or quash the order appealed against and to make a different order in its place.  Although appeals against sentence and many appeals against conviction may be brought only by leave, the Court’s usual practice is to disregard the requirement for leave and to deal with such appeals on their merits.  The practice in the case of appeals against conviction extends to the form of the Court’s orders, which dispose of such appeals without any reference to leave being granted or refused, whereas a decision that there is no error in a sentence invariably results in an order refusing the application for leave to appeal.  Nonetheless, the leave requirement has ordinarily been regarded in both cases as a mere formality.

[12] There is one situation in which the requirement for the leave to appeal against sentence retains practical importance despite the Court’s usual practice.  Sub-section 668E(3) empowers the Court in some cases to quash a sentence and replace it with a more severe sentence.  That power is not exercisable until after leave to appeal has been granted, so that the appellant against sentence will be entitled to be present (at least where the appeal does not involve a question of law alone: s 671D(1)) and to abandon the appeal before the Court exercises its power to increase the sentence (see now Criminal Practice Rules 1999 rr 69(2), 70(1)).  In Neal v The Queen,[9] the High Court considered that where the Court proposed to avail itself of that power there should be strict compliance with the prescribed procedure, but it was not suggested that the formality of a grant or refusal of leave to appeal was required in any other case.  This aspect of the statutory provisions does not bear upon the issue in this case.

[13] The similarity of the legislative treatment of appeals against sentence and conviction extends to s 672A.  It provides for the referral by the executive to the Court of a petition for the exercise of the pardoning power “having reference to the conviction of any person or to any sentence passed on a convicted person …”.  The reference in s 672A(a) to the case being heard and determined by the Court “as in the case of an appeal by the person convicted” thus comprehends sentence as well as conviction.  The beneficial effect of this power in the case of a possible miscarriage of justice, notwithstanding the failure of an earlier appellate challenge, is conferred in both cases.

[14] In summary, the relevant legislation reveals no basis for excluding applications for leave to appeal against sentence from the general rule in Grierson.

[15] Furthermore, in R v Smith[10] Lucas J referred to Grierson and the relevant provisions of the Criminal Code in terms which suggested that the general rule in Grierson applied to applications for leave to appeal against sentence as well as to appeals against conviction.  (Lucas J’s analysis was subsequently adopted by the Court of Criminal Appeal in R v Smith (No 2),[11] in which Sheehy SPJ (with whose reasons Hanger and Hart JJ agreed) emphasised the point that any possibility of a miscarriage of justice resulting from the general rule was met by s 672A of the Criminal Code.) That approach reflected Dixon J’s reasons in Grierson[12] approving the conclusion of the New South Wales Court of Criminal Appeal, in reasons delivered by Jordan CJ, “that a second appeal from a conviction could not be entertained after the dismissal, upon the merits, of an appeal or application for leave to appeal and that the first appeal could not be reopened after a final determination.”  There was no material difference between the applicable New South Wales statutory provisions and the current provisions of the Criminal Code.  Dixon J’s reasons drew no distinction between appeals against conviction and sentence or between appeals as of right or appeals by leave:

“The Criminal Appeal Act of 1912 (N.S.W.) … does not give a general appellate power in criminal cases exercisable on grounds and by a procedure discoverable from independent sources.  It defines the grounds, prescribes the procedure and states the duty of the court.  The statute deals with criminal appeals rather as a right or benefit conferred on prisoners convicted of indictable offences and sets out the kind of convictions and sentences from which they may appeal and lays down the conditions on which they may appeal as of right and by leave and the procedure which they must observe.  It limits the time within which appeals and applications for leave to appeal may be brought, subject, however, to a discretionary power in the court to extend the period except where the sentence is capital.  The grounds or principles upon which the court is to determine appeals are stated, and the duty is imposed on the court of dismissing an appeal, unless on those principles it determines that it should be allowed.  The determination of an appeal is evidently definitive, and a conviction unappealed is equally final.”

[16] Grierson has been applied in a number of decisions concerning an application for leave to appeal against sentence where an earlier application had been determined on the merits:  R v Stoian;[13] R v Dehghani; ex parte Director of Public Prosecutions (Cth);[14] R v O'Brien;[15] R v Spoehr;[16] R v S;[17] and R v Arnold.[18]

[17] However those decisions did not discuss R v AP,[19]  in which the applicability of Grierson in such cases was discussed in some detail and left open.  In R v A the applicant sought an extension of time to appeal against conviction on grounds which differed from the grounds of an earlier extension of time application which had been dismissed on the merits of the proposed appeal.  The President, with whose reasons Jones J agreed, found it unnecessary to express a concluded view whether the court retained jurisdiction to determine the second application (because the grounds of the proposed appeal sought to be argued were without substance) but observed that Re Sinanovic’s Application[20] suggested that “were the applicant able to establish that he had new matters demonstrating good prospects of success on appeal, this Court may have the power in the interests of justice to grant an application for an extension of time within which to appeal, even at this very late stage and after an earlier unsuccessful application on a separate basis.”[21]

[18] Davies JA observed that an application to extend time within which to appeal against conviction was plainly more interlocutory than an application for leave to appeal and that “such an order does not preclude this Court from hearing a further such application, though if it were based on the same grounds it would be bound to fail.”[22]  Of more direct relevance for present purposes, Davies JA said of the general rule in Grierson:

“The application of this principle to an earlier decision dismissing an application for leave to appeal is less clear, notwithstanding the statement by Dixon J in Grierson that it does apply. Such an order appears on its face to be an interlocutory one [Cf Licul v Corney (1976) 180 CLR 213; Hall v Nominal Defendant (1966) 117 CLR 423; Sanofi v Parke Davis Pty Ltd and Another (1981) 149 CLR 147 (an order granting leave to appeal); Bienstein v Bienstein (2003) 195 ALR 225] notwithstanding that it may be on the ground that the appeal would fail on its merits. However the principle was applied to such a case by the Court of Criminal Appeal twice [R v Smith [1968] QWN 20 and R v Smith (No 2) [1969] QWN 10] and appears to have been accepted by this Court in R v Pettigrew, [[1996] 1 Qd R 601. See also R v McNamara (No 2) [1997] 1 VR 257] though the Court held that it had a limited power to reconsider such a decision. [See also Pantorno v R (1989) 166 CLR 466 at 484]  In my view there is a great deal to be said for the application of this principle to applications for leave to appeal against sentence in this Court as those applications are, in practice, treated as appeals. However I do not find it necessary to reach a final conclusion on this question. [See Re Sinanovic’s Application (2001) 180 ALR 448 in which Kirby J said that a decision on a special leave application to the High Court is not a final order.]”[23]

[19] Re Sinanovic’s Application concerned an application to reopen an application for special leave to appeal to the High Court which earlier had been refused.  Kirby J expressed the following principles concerning decisions upon applications for special leave to appeal:

“1.A decision on a special leave application is not res judicata as between the parties, equivalent to a judgment that finally decides a legal dispute between them. The application is in the nature of an interlocutory proceeding by which a party seeks to engage the jurisdiction of this court. As a general rule, interlocutory orders may be varied or set aside in appropriate circumstances where the interests of justice so require. At the stage of the special leave application, it has been said, the appellate jurisdiction of this court has not been engaged, it is simply a process by which a party seeks to persuade the court to enter upon that jurisdiction. I shall assume that this is a valid distinction, compatible with the Constitution.

2.This court has the power to reopen an application for special leave. Quite apart from its general powers as the final appellate court of Australia, the court’s power to reopen a special leave decision lies in the implied or inherent jurisdiction of the court derived from the Constitution and from the Judiciary Act 1903 (Cth). Obviously, unexplained delay or other fault on the part of those seeking reopening would be a discretionary reason for refusing to entertain the request.”[24]

[20] It is apparent from this analysis that the refusal of a special leave application has little in common with the refusal of an application for leave to appeal against sentence under the Criminal Code.  More recently the High Court observed in Burrell v The Queen[25] that a power to reopen an appeal “must be found in ‘the text of the governing statutes and any express or implied powers to be seen therein’ [DJL (2000) 201 CLR 226 at 247 [43]]”.  Despite the apparent generality of Kirby J’s reference to the effect of interlocutory orders, Dixon J’s analysis in Grierson and the legislative provisions and authorities discussed in [10] – [15] of these reasons strongly favour the preference expressed by Davies JA in R v A for applying the general rule in Grierson in an application for leave to appeal against sentence where an earlier application was heard and dismissed on the merits of the proposed appeal.

[21] I have referred to a “general rule” because there are some exceptions to the principle in Grierson.  Section 8 of the Supreme Court of Queensland Act 1991 (since re-enacted in s 58(1) of the Constitution of Queensland 2001) provided that “[t]he court has all jurisdiction that is necessary for the administration of justice in Queensland”.  R v Pettigrew[26] decided that s 8 empowered the Court to set aside a refusal of an application for leave to appeal against sentence where the refusal was based upon an error as to the content of the sentence sought to be challenged and the error was not one which involved any “disputed or disputable question of fact”.  In R v Woodman,[27] White JA considered that this might be regarded merely as an application of the “slip rule”.  That is consistent with the decision in R v Lowrie[28] that s 8 did not enlarge the court’s appellate jurisdiction under the Criminal Code.

[22] It is not necessary in this application to consider the correctness of the decision in R v Pettigrew or the identification in that case of the source of the relevant exception.  The Court of Appeal does have power to correct orders made in its criminal jurisdiction in some exceptional cases.  A source of that power may be the provision in s 671B(1) of the Criminal Code that “the Court may, if it thinks it necessary or expedient in the interest of justice ... exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters …”.  In Elliott v The Queen[29] the High Court referred to the similar provision in s 12(1) of the Criminal Appeal Act 1912 (NSW) and said:

“It is well settled that a superior court of record such as the Supreme Court has a power to ‘re-open’ a proceeding until judgment in the case in question has been drawn up, passed and entered. But by what criteria is that authority to be exercised?

It is here that guidance is provided by remarks of Mason CJ in Autodesk Inc v Dyason [No 2]. His Honour gave examples from jurisdictions in this country (including the New South Wales Court of Appeal) and the United Kingdom where the power to re-open had been exercised on grounds not limited to denial of a fair hearing, but went on:

‘What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases.’…”

[23] It is apparent that this exception for a misapprehension of the facts or law not attributable solely to the neglect or default of the applicant is confined to a case in which the court’s judgment has not been perfected in accordance with any applicable statutory provisions.  Once a superior court’s orders have been perfected,[30] the scope for reopening is more limited still.  In Burrell v The Queen,[31] the High Court referred to the statement in D’Orta-Ekenaike v Victoria Legal Aid[32] that “[a] central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances” and observed:

“The end of a court’s powers to consider and determine a controversy cannot depend upon whether one party asserts that the court has made some error in the conclusion it has reached. If allegation of error in the court’s orders were the criterion, there would never be an end to some disputes. And because one party’s assertion of error cannot provide a sufficient criterion, a court’s belief that it has recognised its own mistake can provide no useful criterion. Such a belief could provide no useful criterion because, in the end, the accuracy of the belief would have to be tested against the arguments of the parties. It follows therefore that no matter whether it is a party that alleges error, or it is the court itself which believes that it recognises its own error, a decision that an error had been made could be reached only after giving all parties an opportunity to be heard. And it is this reargument of issues that would constitute the departure from the principle of finality.

Identifying the formal recording of the order of a superior court of record as the point at which that court’s power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.

The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.”[33]

[24] The High Court left open the question whether some forms of a denial of a procedural fairness might amount to a further exception.[34]  That does not arise in this case.

[25] It is to be emphasised that, consistently with the importance of the principle of finality in litigation, any exception to the general rule in Grierson must fall within very narrow bounds.  In the case of an application for leave to appeal against sentence where a previous application was refused on the merits of the proposed appeal, the mere repetition or refinement of the original grounds of appeal, the formulation of different grounds, or reliance upon new evidence, does not take the case outside the general rule that the Court lacks jurisdiction to hear the second application.  That is what the applicant sought to do in this case.  Accordingly, the Court lacked jurisdiction to hear the applicant’s proposed application for leave to appeal against sentence.  That being so, the application for an extension of time to bring the application for leave to appeal against sentence should be refused on the ground that it is futile.

Proposed order

[26] The appropriate order is that the application is refused.

[27] DAUBNEY J: I concur.