R v Stanley

In this decision the Court of Appeal considered the availability or lack thereof of multiple appeals against conviction and the impact of the recent decision of the Northern Territory Supreme Court in DPP v Moseley on this case.  Although the discussion of the decision in Mosely may have been obiter, the discussion by Morrison JA sheds substantial and important light on the topic.

The applicant in this matter initially sought, and was refused, an appeal against conviction. [5]. Ten years later, he filed an application for an extension of time in which to appeal his conviction. [6]. During the period between his original appeal and this application two events occurred: (1) the CMC conducted an investigation into some of the police involved in the investigation and prosecution of the applicant; and (2) the applicant obtained an expert report that indicated he could not have been in the area of the offence at the time of its occurrence. [7]–[8]. If the extension of time was granted, the applicant intended to adduce these events as evidence that he should have been acquitted.

Pursuant to s 668D of the Criminal Code, a person convicted on indictment has a right to appeal their conviction to the Court of Appeals.  [9]. In considering whether it was appropriate to grant the applicant’s request, the Court concluded that, generally, it was well-established that where an appeal had been decided on the merits, as in this case, “the right conferred by s 668D is exhausted and [the Court of Appeals] has no jurisdiction [of any type] to entertain a further appeal” [10]; Grierson v The King. However, the Court also noted the existence of certain narrow exceptions to this principle, including the possibility “to set aside orders obtained by fraud”.  In the matter before the Court it was determined that the circumstances alleged did not reach this threshold. [13]–[16]. Further, their Honours considered that any reference to “merits” was purely directed to the distinction between an appeal that had been heard and one that had been abandoned, rather than, as the applicant contended, one that was heard, but on “improper” grounds. [10].

Finally, the Court addressed the applicability of the recent decision in DPP v Moseley, which held that the NT Supreme Court had “equitable jurisdiction to set aside a judgment of the Court of Criminal Appeal, in circumstances where the judgment was actuated by fraud”. [22]. Both Fraser JA and Mullins J dealt with this issue very quickly, concluding that the case was inapplicable, given its holding that though the NT Supreme Court possessed equitable jurisdiction to overturn an appeal, the Court of Criminal Appeal, the equivalent to this Court, did not. [2], [35]–[36]. Justice Morrison agreed with the decision of his colleagues, adding also that the “fraud” alleged in this matter was a type wholly different to that found in Moseley – in the case before the Court the “fraud” consisted of bribes to give false evidence. [71]–[77] Despite being unnecessary given this conclusion, his Honour, then went on to closely examine the “correctness” of the NT Supreme Court’s reasoning and ultimately holding that the case was improperly decided. See this very interesting discussion at paras [37]–[70].

The Court refused the application.