R v Chardon

The appellant died after argument was heard and the Court had reserved its decision on his appeal against conviction and his application for leave to appeal against sentence. The question for determination in this case was whether the Court’s jurisdiction to determine the appeal and application ceased upon the death of the appellant. The Court concluded that it did.

Fraser and Mullins JJA and Applegarth J

8 December 2020

Background

After a trial by jury, the appellant was found not guilty of murder but guilty of manslaughter for the death of his wife. He was sentenced to 15 years’ imprisonment. The appellant filed a notice of appeal against conviction and an application for leave to appeal against sentence. The appellant died after argument was held and the Court had reserved its decision. [1].

After the appellant’s death, the issue before the Court of Appeal was whether the Court retained jurisdiction to determine the matters. [2].

Reasons of the Court of Appeal

Delivering a single judgement, the Court of Appeal (Fraser and Mullins JJA and Applegarth J) held that the Court’s jurisdiction to determine the appeal and the application ceased upon the death of the appellant. [28].

The Court observed that its jurisdiction to hear appeals and its power in such appeals are contained in Ch 67 of the Criminal Code 1899. They are “entirely statutory”. [9].

With respect to appeals against conviction, the Court stated that the purpose of the Ch 67 provisions “is to supply a remedy to a person whose conviction involves a miscarriage of justice”. Where a miscarriage of justice has occurred, the Court must decide between an acquittal or a new trial. Such “a remedial choice would be artificial in a case in which the appellant has died”. [12]. Similarly, for appeals against sentence, “the statutory remedy of quashing the sentence and passing a different sentence in substitution therefor would be meaningless” in a case where the appellant has died before judgement is delivered. [13].

In reaching this conclusion, the Court considered a number of authorities. By reference to the decision of the Court of Appeal of England and Wales in R v Jefferies [1969] 1 QB 120, the Court observed that like the relevant provisions of the Criminal Appeal Act 1907 (UK), “the general tenor” of Ch 67 of the Criminal Code 1899 is such as to make the right of appeal strictly personal to the person convicted. [16].

The Court referred to a number of Australian decisions which were consistent with the position in the United Kingdom, including the decision of the Victorian Court of Appeal in R v Rimon (decd) (2003) 6 VR 553. In that case, the Victorian Court of Appeal held that an appeal by a convicted and sentenced person was “personal to that person and cannot be pursued by that person’s executor or personal representative”. [19].

The Court stated that upon the appellant’s death the right to appeal was likely to abate even where the appellant’s personal representatives had a legal interest in the subject matter of the appeal. However, the Court did not fully conclude this issue. [23]. 

The Court, however, retains power under s 672A of the Criminal Code 1899 to hear and determine a case which is referred to it by the Crown Law Officer. Therefore, a remedy does exist for a person who is adversely affected by the conviction of a person who dies before that person’s appeal against the conviction is determined. [27].

A Hughes of Counsel