Riddell v R

1. [1]

   THE COURT: On 23 August 2023, Andrew Riddell, filed a purported notice of appeal in this Court, seeking to appeal, against orders of this Court made under s 22 of the Criminal Appeal Act 1912 (NSW) by Wright J on 30 June 2023: Riddell v R [2023] NSWCCA 167. We describe this as a purported notice of appeal as no appeal lies against a decision of a single judge exercising the jurisdiction of the Court under s 22 of the Criminal Appeal Act. For ease of reference, we refer to the matters raised in the purported notice of appeal as the “current application” for the purposes of this judgment. As set out below, the current application is in substance an application to reconsider, vacate or amend interlocutory orders and therefore Mr Riddell does not need an extension of time. It was therefore unnecessary for Mr Riddell to apply for an extension of time.

2. [2]

   The background to the current application is that, by application dated 5 April 2022, and filed in this Court on 26 April 2022, Mr Riddell sought leave to file a notice of appeal after the expiry of the filing period in respect of his conviction on 31 January 2007 and sought an extension of time in which to file an application for leave to appeal in respect of his conviction (to the extent required) and in respect of his sentence on 17 August 2007 (hereafter, “application for leave to appeal”). That was the third occasion in which Mr Riddell sought either an extension of time to appeal, or an extension of time to file a notice of intention to apply for leave to appeal, in this Court. As was observed by Johnson J in 2017, and even more so now, the procedural history of this matter is “unprecedented”: Riddell v R (No 3) [2017] NSWCCA 92 at [14].

3. [3]

   The application before Wright J was an application filed by the Crown on 17 April 2023 “for summary dismissal of Mr Riddell’s application for leave to appeal against conviction on the basis that Mr Riddell had failed to prosecute the application diligently”. Notwithstanding the terms of the application, it is apparent from the submissions of the parties and the reasons of Wright J that the application was treated as one which applied to the whole of Mr Riddell’s application for leave to appeal on April 2022 against his conviction and sentence. On 30 June 2023, Wright J made the following orders:

4. [4]

   Order (3) was explained by his Honour in his reasons at [21]:

5. [5]

   There has been no stay of those orders and Mr Riddell did not comply with order (2). Thus, under order (1) his application for leave to appeal stood dismissed from 9 February 2024. During the hearing of the current application both Mr Riddell and the Crown confirmed that this accorded with their understanding of the operation of the orders of Wright J.

6. [6]

   In the current application Mr Riddell seeks orders vacating the orders of this Court in Riddell v R [2023] NSWCCA 167, Riddell v R [2022] NSWSC 1581 and Riddell v R [2022] NSWCCA 198. Whilst the decision in Riddell v R [2022] NSWSC 1581 has the neutral citation of a decision of the Supreme Court, it is in fact a decision of this Court, considering a purported appeal or application to review an earlier decision of Beech-Jones CJ at CL (as his Honour then was) exercising the jurisdiction of this Court under s 22 of the Criminal Appeal Act in Riddell v R [2022] NSWCCA 198. Mr Riddell also seeks orders that his “Appeal e-filed at NSWCCA 31 January 2023” be filed and sealed, that his substantive matter be set down for a two day hearing and, if the other orders that he seeks are not made, that the orders made by Wright J on 30 June 2023 be clarified or varied. He also seeks an extension of time for filing the current application.

7. [7]

   Mr Riddell contends that the orders made by Wright J on 30 June 2023 were wrong, were made beyond power or contrary to the Commonwealth Constitution, were otherwise tainted by jurisdictional error or should nonetheless be reconsidered, vacated or amended.

8. [8]

   Mr Riddell filed an affidavit explaining his delay in filing this application which was read on the application (albeit that, as set out above, no such application is required given the substantive character of the application). He also filed closely typed submissions of 16 pages on 23 August 2023, reply submissions of 9 pages on 16 October 2023 and an oral opening in written form of 7 pages on 27 February 2024. On 27 February 2024 he also filed a two page affidavit of which some was admitted partly as evidence and partly as submissions. On 19 November 2023 he served a notice of constitutional matter on the Commonwealth, State and Territory Attorneys-General comprising 146 pages including annexed submissions as to law and a summary of events. He also sent two short letters to the Registrar of this Court, dated 21 January 2024 and 8 February 2024. All of that material has been taken into account on this application. After the hearing, on 7 March 2024, Mr Riddell emailed the associate of Justice Stern attaching a one page document entitled “Corrections to transcript 1 March 2024: Riddell v R: Stern JA; Davies; Campbel JJ [sic]” he described in the body of his email as “identification of manifest errors.” This document was not considered on this application.

9. [9]

   Mr Riddell informed the Court that none of the Attorneys-General had indicated any intention to intervene in this application, although some of the Attorneys-General had indicated that they may do so if the matter were to reach the High Court. No response had been received from the Attorney-General of NSW. In these circumstances, we proceeded, with Mr Riddell’s agreement, on the basis that there was no intention on the part of any of the Attorneys-General to intervene in these proceedings.

10. [10]

    At the outset of the hearing of the current application, we indicated to Mr Riddell that the Court had available to it the application book that was before Wright J and a USB stick comprising seven volumes, and many thousands of pages of material, but that the Court had not read that material. Mr Riddell was told that during his oral submissions he should draw the Court’s attention to any matters in that additional material that he considered best supported his application. Consistent with this, during his oral submissions he invited the Court to consider specific matters in that additional material, to which reference is made below.

11. [11]

    Prior to the hearing, Mr Riddell also made an application for that Davies J to recuse himself from hearing the current application.

12. [12]

    For the reasons set out below the current application, and the recusal application, are dismissed.

Background

1. [13]

   What follows is a summary of some of the background to the current application before the Court. It is not intended in this judgment comprehensively to rehearse the background to the current application, which is more fully set out in the various judgments referred to below, with which these reasons should be read.

2. [14]

   On 31 January 2007 Mr Riddell was found guilty of conspiring between 1 May 2002 and 26 April 2003 to import into Australia a commercial quantity of MDMA, being 136.9 kilograms, in contravention of s 233B(1)(b) of the Customs Act 1901 (Cth) and s 11.5(1) Criminal Code 1995 (Cth). He was sentenced on 17 August 2007 to life imprisonment with a non-parole period of 19 years, commencing on 26 April 2003. He was released on parole on 23 April 2022 and was deported to the United Kingdom on 10 May 2022.

3. [15]

   In November 2012, Mr Riddell filed a notice of appeal (some three years and six months out of time) against both conviction and sentence and a “[n]otice of application for extension of period within which notice of intention to appeal to apply for leave has effect.” The appeal was heard on 23 October 2015 and 1 April 2016.

4. [16]

   At the hearing on 23 October 2015 the Mr Riddell sought an adjournment of the appeal. After hearing oral argument, the presiding judge Adams J indicated the Court had refused the application for adjournment and would provide reasons in due course and the Court continued to hear arguments on the appeal. The reasons for refusing an adjournment were published on 2 May 2016: Riddell v R [2016] NSWCCA 70. In those reasons the Court recorded that Mr Riddell submitted that, because of difficulties arising from various materials being unavailable, he required a further six months of “unfettered PC access so that he could rebuild matters of fact and apply the law”: at [33]. He also sought time to obtain affidavits from his legal representatives at trial about claimed prejudicial statements made by the trial judge, a communication between the trial judge and the Crown about a sick juror and the jury notes not being transcribed: at [34]-[42]. The Court noted the procedural history of the matter, including that on 13 March 2015 R A Hulme J:

   1. (1)

      listed the appeal for hearing on 23 October 2015;

   2. (2)

      ordered that before 28 August 2015 Mr Riddell file a “document not exceeding 20 pages…in which submissions in support of the grounds of appeal are set out in a succinct summary”; and

   3. (3)

      ordered that “[i]f the matter cannot be heard on 23 September because of a failure of the applicant to prepare the matter for hearing it will be a matter for the Court to consider summary dismissal on that occasion on the basis of a failure to prosecute the appeal diligently”.

5. [17]

   The Court observed that, contrary to the orders of R A Hulme J on 13 March 2015, Mr Riddell did not file a document not exceeding 20 typed pages. Instead, he filed a summons seeking leave to appeal from those orders: at [45], and then, by notice of motion on 17 September 2015 sought to quash those orders (along with a subsequent order of the Registrar) and sought to have the hearing of his appeal adjourned: at [49].

6. [18]

   The Court also considered the matters upon which Mr Riddell was seeking to obtain affidavit evidence from his legal representatives at trial. The Court found that these were either inconsequential and could not give rise to concern about bias: at [57], or were reflected in the transcript which “speaks for itself and no affidavit from Mr Waterstreet could take the matter any further”: at [65], [71], [74].

7. [19]

   As regards Mr Riddell’s claimed lack of readiness, the Court observed that Mr Riddell had stated in his submissions that he had had to wait until 2014 “for 95% [of the] trial materials to be delivered to him” and that there had been the equivalent of one folder of further material delivered to Mr Riddell on 8 July 2015: [82]. The Court held, at [83], that:

8. [20]

   Further, at [86], the Court held:

9. [21]

   At the resumed hearing on 1 April 2016 Mr Riddell abandoned his appeal against both conviction and sentence: Riddell v R (No 2) [2016] NSWCCA 74. In allowing Mr Riddell’s application to abandon his appeal Adams J (with whom Davies and Beech-Jones JJ agreed) found that it was “very difficult to accept” Mr Riddell’s submission that he was “not ready”: Riddell v R (No 2) [2016] NSWCCA 74 at [9]. In additional reasons, Beech-Jones J (with whom Adams J agreed) held:

10. [22]

    An application for an extension of time for filing a notice of intention to apply for leave to appeal was filed on 20 December 2016, but was refused by this Court (Johnson J, Beech-Jones and Fagan JJ agreeing) on 2 May 2017: Riddell v R (No 3) [2017] NSWCCA 92. Johnson J noted at [11]:

11. [23]

    In refusing that extension, Johnson J observed that there had been “no fewer than 23 direction hearings and call overs” prior to the hearing on 23 October 2015 and that, despite that background, and Mr Riddell filing written submissions totalling 690 pages, Mr Riddell had stated that he was not in a position to continue with the hearing of his appeal on 1 April 2016: at [14], [20]. By the time of the hearing on 2 May 2017, Johnson J found at [18] that:

12. [24]

    His Honour held at [22] that:

13. [25]

    On 18 January 2022 Mr Riddell applied to the High Court for an extension of time in which to file an application for special leave to appeal from that decision. That application was rejected by Gageler J (as the Chief Justice then was) and Gleeson J: Riddell v The Queen [2022] HCASL 81 at [1], for the following reasons:

14. [26]

    In April 2022, Mr Riddell again applied for an extension of time in which to file a notice of appeal against his conviction and for an extension of time in which to seek leave to appeal against his conviction (to the extent required) and sentence. In support of that application, Mr Riddell filed over 4,200 pages including very lengthy, closely typed submissions and multiple annexures including detailed tables containing analysis of documentary materials. The matter came before this Court, constituted under s 22 of the Criminal Appeal Act by Beech-Jones CJ at CL on 8 September 2022: Riddell v R [2022] NSWCCA 198 at [7].

15. [27]

    Before the hearing on 8 September 2022, Beech-Jones CJ at CL had foreshadowed making an order directing that Mr Riddell’s material be returned to him and that he be directed to file a consolidated set of submissions that did not exceed a specified page limit by a specified date. In response, Mr Riddell submitted that he did not have the time or facilities to read “20,000 pages of material on his appeal and file consolidated submissions by a specified date that do not exceed a specified page limit”: Riddell v R [2022] NSWCCA 198 at [9]. Following an oral hearing Beech-Jones CJ at CL held:

16. [28]

    His Honour determined that “some reasonable latitude in terms of time should be afforded” to Mr Riddell to allow him to file material in compliance with his Honour’s orders. His Honour made orders under r 4.1 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW): Riddell v R [2022] NSWCCA 198 at [16]. Relevantly, by orders (1) and (2) his Honour directed:

17. [29]

    Mr Riddell brought a purported appeal against those orders and on 9 November 2022 this Court heard Mr Riddell’s application and, having considered the matter afresh, pronounced orders replicating those made by Beech-Jones CJ at CL: Riddell v R [2022] NSWSC 1581 at [24] (Button, Fagan JJ and R A Hulme AJ). The Court described the material upon which Mr Riddell sought to rely as follows:

18. [30]

    The Court observed that no appeal lies as of right against a decision of a single judge exercising the jurisdiction of the Court under s 22 of the Criminal Appeal Act, the Court has no jurisdiction to undertake review upon administrative law grounds of a decision of a single judge of the Supreme Court, and that Mr Riddell had not attempted to demonstrate a material change of circumstances such as may justify a court reconsidering, vacating or amending its own interlocutory orders: at [15]-[16]. At [17], the Court found that:

19. [31]

    The Court held that:

20. [32]

    Mr Riddell did not, and has not, complied with order (2) of the orders of this Court made on 8 September 2022 and reiterated on 9 November 2022.

The Orders of Wright J on 30 June 2023

1. [33]

   On 17 April 2023 the Crown sought summary dismissal of the application for leave to appeal against his conviction out of time on the basis he had failed to prosecute the application diligently in that he had not complied with the direction of the Court. As set out above, this was treated as an application which also encompassed Mr Riddell’s application for an extension of time for applying for leave to appeal as regards his sentence.

2. [34]

   The non-compliance relied upon was with Mr Riddell’s failure to comply with the direction that he “file and serve the submissions and other material that he seeks to rely on, which is not to exceed 200 pages, on or before 31 January 2023”, being order (2) as made by Beech-Jones CJ at CL and reiterated by this Court on 9 November 2022.

3. [35]

   That application was heard by Wright J, exercising the jurisdiction of this Court under s 22 of the Criminal Appeal Act, on 26 June 2023: Riddell v R [2023] NSWCCA 167 at [5]. Section 22 of the Criminal Appeal Act relevantly provides:

4. [36]

   As to the position of Mr Riddell, Wright J said:

5. [37]

   As Wright J observed at [18], the power to give directions, such as order (2) made in this case under r 4.1 of the Supreme Court (Criminal Appeal) Rules, necessarily carries with it a power in both civil and criminal cases to refuse to countenance non-compliance: State Pollution Control Commission v Australian Iron & Steel Pty Ltd (No 2) (1992) 29 NSWLR 487 at 492-3 (Gleeson CJ, Sheller JA and Badgery-Parker J agreeing). His Honour concluded at [18] that:

6. [38]

   However, his Honour found that before such dismissal took effect Mr Riddell should be given the opportunity to attempt to comply with a 200 page limit for his submissions within a reasonable time: at [20]. As is apparent from the orders of Wright J, his Honour gave Mr Riddell a little over seven months to complete this task.

7. [39]

   His Honour thus made the orders set out at [3] above.

This Court’s jurisdiction to make the orders sought by Mr Riddell

1. [40]

   As is clear from our summary of the background to the current application, Mr Riddell asks this Court to vacate or vary its own orders. However, as reiterated by this Court in Riddell v R [2022] NSWSC 1581, this Court has neither appellate jurisdiction nor jurisdiction under s 69 of the Supreme Court Act 1970 (NSW) in respect of its own earlier orders or the reasons for making those orders: at [15].

2. [41]

   As to the latter, in making the orders Wright J was clearly exercising a judicial rather than administrative function: cf Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [76]-[77] (Basten JA); see also Singh v State of NSW [2021] NSWCA 260 at [7] (Leeming JA). In Penson v Titan National Pty Ltd [2015] NSWCA 404 this Court observed that the orders of judges of the Supreme Court were not amenable to prerogative writs and are not amenable to review under s 69 of the Supreme Court Act: at [8] (Meagher, Gleeson and Simpson JJA). That is consistent with the historical position, as identified by the High Court in Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 at [98]:

3. [42]

   Similarly, as held by Dawson J in Re Jarman: Ex parte Cook (No 1) (1997) 188 CLR 595 at 610; [1997] HCA 13:

4. [43]

   The principles set out above would also apply to the Court of Criminal Appeal which is a superior court of record: Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 at [13] (Gummow A-CJ, Hayne, Heydon, Crennan and Kiefel JJ); see also R v Jones (No 2) (2010) 79 NSWLR 143; [2010] NSWCCA 195 at [25] (Rothman J, McClellan CJ at CL agreeing).

5. [44]

   Nor can the application be made under s 22(2) of the Criminal Appeal Act. That provides an entitlement to have an application determined by the Court only where a judge exercising the Court’s power under s 22 has refused “an application on the part of the appellant to exercise [a power enumerated in s 22(1)] in the appellant’s favour”. That provision does not avail Mr Riddell where, as here, the application determined by Wright J was brought by the Crown, not by Mr Riddell.

6. [45]

   Nor can r 5.4 of the Supreme Court (Criminal Appeal) Rules avail Mr Riddell. This is because, under r 5.4(6), the Court has no power to extend the time limit of 14 days prescribed in r 5.4(4) and (5).

7. [46]

   Whilst Mr Riddell relies upon the decision of the NSW Court of Appeal in Newmont Yandal Operations Pty Ltd v The J Aron Corporation (2007) 70 NSWLR 411; [2007] NSWCA 195 the circumstances of that case are far removed from the present. The recognition by the Court in that case that the inherent jurisdiction permitted orders being made to ensure that the Court’s final orders reflected what the Court had intended to pronounce does not assist Mr Riddell.

8. [47]

   It necessarily follows that the only basis upon which the relief sought by Mr Riddell could be granted, is by virtue of the Court’s jurisdiction to reconsider, vacate or amend its own interlocutory orders. Consistent with this, at the outset of the hearing before this Court, Stern JA indicated that the current application would be treated as one to reconsider, vacate or amend the interlocutory orders of Wright J on 30 June 2023. Both parties accepted that this was appropriate.

9. [48]

   The principles that govern such an application were set out by McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46-47:

10. [49]

    These principles were applied in a criminal context by Hidden J (James and Hislop JJ agreeing) in R v Taylor [2007] NSWCCA 104; (2007) 169 A Crim R 543 at [31]:

11. [50]

    In the context of an application under s 132 of the Criminal Procedure Act 1986 (NSW) to which s 130A(1) of that Act applied, but of equivalent application in the context of an application to reconsider, vacate or amend interlocutory orders such as those made by Wright J on 30 June 2023, Beech-Jones J held in R v Obeid (No 4) [2015] NSWSC 1442 at [11]:

12. [51]

    His Honour held that the starting point for the application was whether there had been some material change in circumstances since the previous ruling but that the “necessity to demonstrate a material change in circumstances” did not exhaust “the circumstances in which the interests of justice may warrant a departure from an earlier order”: at [12].

13. [52]

    It is thus apparent that the guiding principle on this application is whether it is in the interests of justice that the orders should be reconsidered, vacated or amended. A powerful, but not exhaustive, consideration is whether there has been a material change in circumstances since the orders were made by Wright J.

14. [53]

    Whilst the merits of the grounds of appeal are relevant to the interests of justice, as Brennan CJ and McHugh J said in the context of applications to extend time in Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [9] (“Jackamarra”):

15. [54]

    As held by Bell CJ (Rothman and Garling JJ agreeing) in Gould v R [2023] NSWCCA 103 (in the context of an application for an extension of time in which to file a second application for leave to appeal) it follows from Jackamarra that the discretion may be exercised against an extension of time even if the grounds of appeal sought to be raised are arguable. The Chief Justice added:

16. [55]

    In our judgment these principles are equally applicable in the circumstances of the present case, where this Court is considering whether or not it is in the interests of justice to reconsider, vacate or amend the orders of Wright J, dismissing Mr Riddell’s application for leave to appeal.

Should the orders of Wright J be reconsidered, vacated or amended in the interests of justice?

1. [56]

   We propose to deal in this judgment with the principal matters relied upon by Mr Riddell in support of the current application. It is simply not practicable to detail every one of the plethora of matters which is raised, whether directly or indirectly, in his written and oral submissions and in the material he relies upon in support. However, we can confirm that the Court has carefully read all of Mr Riddell’s submissions in support of this application and has taken into account the other documents which Mr Riddell referred the Court to in his oral submissions.

2. [57]

   If, as Mr Riddell contends, the orders of Wright J were beyond jurisdiction, that would obviously bear upon whether they should be reconsidered, vacated or amended. It is thus necessary to address that question at the outset. It is apparent that Mr Riddell makes, in essence two complaints in this regard. He contends that this Court does not have power:

   1. (1)

      to place a limit upon the length of written submissions; or

   2. (2)

      to make orders disposing of an application for an extension of time to file a notice of appeal or to file an application for leave to appeal without giving substantive consideration to the merits of the proposed grounds of appeal.

3. [58]

   As set out above, s 22(1)(i) of the Criminal Appeal Act expressly confers upon a single judge of the Court the power to dispose of an appeal for failure to prosecute the appeal diligently. Subsection 22(1)(l) confers upon a single judge of the Court “any other powers of the court in respect of procedural or interlocutory matters as may be prescribed by the rules of Court.” Rule 4.1 of the Supreme Court (Criminal Appeal) Rules provides:

4. [59]

   It is thus clear that there was a proper statutory basis for the orders made by Wright J.

5. [60]

   Moreover, it is apparent that this Court also has the inherent power to dismiss an appeal for want of prosecution: see eg R v Frier (Court of Criminal Appeal (NSW), 26 February 1997, unrep); Gore v R (Cth) [2003] NSWCCA 365.

6. [61]

   Mr Riddell submits that the Court does not have power to make orders such as those made by Wright J as, he submits, once an appeal is filed in the Court “it’s the Court’s duty to examine it for merit, extension and leave, in that order as per Kentwell [Kentwell v R (2014) 252 CLR 601; [2014] HCA 37], without examination there is no opinion to be had”. This submission echoes Mr Riddell’s written submission that “[t]he law requires NSWCCA examine the 650 page outline of submissions filed”, and that the “NSWCCA was precluded from dismissing appeal citing non-diligent prosecution. The Act was promulgated to safeguard substance of right not procedure or form”. He submits that the Court cannot make any decision to limit the length of submissions from 650 to 200 pages without firstly apprising itself by reference to the totality of the material that he relies upon.

7. [62]

   He also submits that to confine an appeal to a limited number of pages of written submissions would be “repugnant to federal judicial power, Criminal Appeal Act 1912, Supreme Court (Criminal Appeal) Rules 2021 and Kentwell v R”. He submits that this is contrary to the “strict separation of federal judicial power” in Chapter III of the Commonwealth Constitution.

8. [63]

   Mr Riddell’s reliance upon Kentwell v R in this regard is misplaced. The High Court in Kentwell v R held that it was an error for this Court to have applied a test of substantial injustice in determining whether an extension of time should be granted to appeal against a sentence that had been imposed upon a wrong sentencing principle. In that regard, the plurality held at [29] (Gageler J agreeing) that:

9. [64]

   Whilst the plurality in Kentwell v R held at [42] that this Court must exercise the sentencing discretion afresh where the Court has determined that the exercise of the sentencing discretion has miscarried, that principle does not prevent a Court from making an interlocutory order such as that made by Wright J notwithstanding that the effect of the interlocutory order is that there will be no substantive hearing of the matters about which Mr Riddell complains.

10. [65]

    Further, contrary to Mr Riddell’s contentions, whilst the prospects of success on appeal will be relevant when considering the interests of justice, consistent with the authority set out at [53]-[54] above, the Court is not required to determine the substantive merits of an applicant’s proposed grounds of appeal when making orders disposing of an application to extend time for filing a notice of appeal or an application for leave to appeal. The requirement that an applicant satisfy the Court that an extension or that leave to appeal should be granted, carries with it an implicit requirement that the applicant must satisfy a court that their application should succeed before there will be any determination on the merits of proposed grounds of appeal.

11. [66]

    Contrary to Mr Riddell’s contention, no departure from the process that characterises federal judicial power has been demonstrated. There is nothing inconsistent with the Commonwealth Constitution for this Court to make orders which impose temporal and page limits upon submissions or material to be filed in applications made for the purpose of criminal appeals. There is nothing about such orders which are “inconsistent with the essential character of a court or with the nature of judicial power”: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27; [1992] HCA 64 (Mason CJ). Further, as Brennan CJ held in Nicholas v R (1998) 193 CLR 173; [1998] HCA 9:

12. [67]

    Nor is there anything arbitrary about the page limit set by Wright J. It was a page limit set after his Honour found that it appeared to him that Mr Riddell “would be capable of summarising his proposed grounds quite succinctly”: Riddell v R [2023] NSWCCA 167 at [14].

13. [68]

    Nor is there anything repugnant to the exercise of federal judicial power, or to Chapter III of the Commonwealth Constitution, for a Court to have power to give directions for the timely and efficient conduct of proceedings before the Court, and to take appropriate steps, including in an appropriate case dismissing an application for want of prosecution, if there is non-compliance with those directions. The Court manifestly has the power to control its own process, including by imposing page limits on submissions and dismissing an application for want of prosecution as a means of refusing to accept a party’s persistent refusal to comply with that page limit.

14. [69]

    Mr Riddell also contends that, once the material he had filed in April 2022 was returned to him pursuant to the orders of Beech-Jones CJ at CL on 8 September 2022, “there was nothing before the Court to invoke power” and “Judiciary Act 1903 ss 68;79 had nothing to pick up”. On that basis, he contends that Wright J had no power to make orders on 30 June 2023. This contention should be rejected. The proceedings commenced by Mr Riddell in April 2022 remained on foot notwithstanding that the material filed by Mr Riddell was returned to him. Indeed, Mr Riddell relied upon the extant proceedings before the Court in bringing a purported appeal against the orders of Beech-Jones CJ at CL: Riddell v R [2022] NSWSC 1581.

15. [70]

    Mr Riddell submits that the decisions of this Court in Riddell v R [2022] NSWCCA 198, Riddell v R [2022] NSWSC 1581 and Riddell v R [2023] NSWCCA 167 are each tainted by jurisdictional error, unreasonableness and a denial of procedural fairness. To the extent that these contentions go beyond those considered above, we would reject them. Mr Riddell has been given a fair opportunity to be heard on each occasion and has availed himself of that opportunity. Further, the orders made on each occasion are, in our judgment, well within the ambit of orders that the Court acting reasonably could make.

16. [71]

    Mr Riddell submits that it is impossible for him to cut his submissions from 650 pages to 200 pages, and that doing so will render the summaries he has prepared “inutile”. He contends that the complicated, serious and controversial matters that he relies upon both on his application for extensions of time and that he proposes to rely upon on appeal “cannot be proved by summary”. He says that he cannot demonstrate fraud by one example or refer to one missed call when there are 119 others. He relies upon there being 18,000 to 20,000 pages of transcript and exhibits. He also submits that, to the extent that his grounds of appeal rely upon calls that he claims were not disclosed to him, the Court needs to consider the calls and “[n]o summary can deal with that”. In short, he submits, “this is a colossal matter”.

17. [72]

    Mr Riddell’s contentions must be rejected. He has not demonstrated any satisfactory reason why he could not have filed and served submissions and a summary identifying the material relied upon in support of his grounds of appeal within 200 pages in the period of slightly over 6 months provided for by the orders of Wright J on 30 June 2023, or indeed before the hearing before this Court on 1 March 2024. In this regard, it is of some significance that the orders of Wright J did not purport to limit the material that Mr Riddell could take the Court to at the hearing of his application for leave to appeal. To the extent that Mr Riddell wished, on an appeal, to rely upon the content of what he claims were “non-disclosed calls” he could do so by cross-referencing his submissions to the material upon which he relies in support of those submissions. That was also made clear to Mr Riddell during the hearing of his purported appeal against the orders of Beech-Jones CJ at CL and during the hearing before Wright J the transcript of which Mr Riddell has extracted in his submissions in chief on the current application:

18. [73]

    During the course of the hearing before this Court Mr Riddell was asked if he had made an attempt to comply with the orders of Wright J. He replied that he “just can’t, I don’t have the time”. There is no medical evidence before the Court to support Mr Riddell being unable to prepare submissions as directed. Indeed, he has filed nearly 200 pages of submissions in support of the current application, if those in the notice of a constitutional matter are taken into account. When this was put to him during the hearing he replied that he had prepared the notice of a constitutional matter within a matter of a week when he was working and that it was mainly “cut and pasted”.

19. [74]

    In oral submissions before this Court, having maintained his position that it was impossible to comply with the orders of Wright J, Mr Riddell said:

20. [75]

    Consistent with that submission, there is nothing before this Court to suggest that he has to date made any attempt to comply with the orders of Wright J, nor with those of Beech-Jones CJ at CL on 8 September 2022 or those of this Court on 9 November 2022. Whilst Mr Riddell, in his submissions filed on 23 August 2023, indicated that he would attempt to file a 200 page summary of grounds together with a 50 page “summary of Annexure in support” by February 2024, in the event that this Court were to rule against him on the current application, there is no evidence that he did, or attempted to do, so.

21. [76]

    Instead, Mr Riddell formed the view that he should not even try to comply with the orders of Wright J. Thus, in his written submissions at [20] he submitted that:

22. [77]

    A litigant’s disagreement with the rationale of orders made by this Court plainly does not excuse non-compliance.

23. [78]

    Mr Riddell also submits that the orders of Wright J lack utility. In particular he contends that on appeal the Court must “examine 20,000 pages of relevant transcript and exhibits together with the evidence and call tables filed by the Applicant (read seriatim as transcript is examined)”. Thus, he contends, “it matters not whether grounds/submissions are 200 or 650 pages”. He contends, further, that after all that he has endured, “an extra 400 pages to an appeal is hardly vexing”.

24. [79]

    Mr Riddell’s submission in this regard demonstrates his unwillingness to accept this Court’s orders. He refuses to accept that it is for this Court, and not him, to determine what procedural orders should be made to ensure the efficient and effective conduct of proceedings before it. Mr Riddell’s view that the orders lack utility does not provide any basis upon which he should be excused from compliance.

25. [80]

    Mr Riddell complains that it is disproportionate for this Court to make orders limiting the length of his submissions. He says that if there is a difficulty with the time required to consider lengthy submissions, then the Court can appoint someone else to do so under s 12(1)(d) of the Criminal Appeal Act. Both of these contentions should be rejected. There is nothing disproportionate in the orders of Wright J. Notwithstanding the complexity of Mr Riddell’s grounds of appeal, and having considered exhibit BJ1 before Wright J, we are satisfied that Mr Riddell’s grounds of appeal can be reflected in submissions and a summary well within the 200 pages allowed by the orders of Wright J. Further, it is readily apparent that consideration of submissions such as those which Mr Riddell seeks to rely upon cannot be the subject to a referral to a commissioner appointed by the Court under s 12(1)(d) of the Criminal Appeal Act.

26. [81]

    As set out at [53]-[55] above, the merits of the grounds of appeal are one of the factors relevant to the interests of justice in this case, however this Court’s review of the merits should be with a view to ensuring on a “reasonably impressionistic level” that the proposed grounds of appeal are arguable, but this application should not be treated as a dress rehearsal for the full appeal.

27. [82]

    At the hearing before us we invited Mr Riddell to draw to the Court’s attention to material the considered best supported his application. Mr Riddell indicated, in response to a question from the bench, that grounds 6 and 8 of his proposed grounds of appeal would be sufficient for this Court to form an impression of the merit of his proposed appeal.

28. [83]

    A third matter going to the merits of his appeal that Mr Riddell emphasised during the oral hearing, and asked the Court to consider, is annexure NDC on the USB which sets out what he describes as the “120 non-disclosed calls” which he contends to be calls between the “senior officer in charge” and “his informant”. His allegations include that the senior police officer declared in an affidavit that there were 90 calls, when in fact there were 120 more, and that the disclosed calls were edited of their content.

29. [84]

    Having considered that material, we will approach the current application on the assumption (without deciding) that those grounds are at least fairly arguable. Consistent with the authority set out above, it is neither necessary nor desirable for this Court to consider the merits of Mr Riddell’s appeal beyond that.

30. [85]

    Mr Riddell’s written and oral submissions focus heavily upon his complaints about the decision of Wright J, about the various decisions I have set out above by way of background, and about his trial. When considered in the context of the significant matters which weigh in favour of the orders of Wright J (set out from [103] below) none of the matters relied upon provide any material support for Mr Riddell’s contention that it is in the interests of justice that this Court reconsider, vacate or amend the orders of Wright J.

31. [86]

    Given the wide-ranging nature of these complaints, it is not intended to deal with each and every one of them in this judgment. Rather, given our invitation to Mr Riddell to draw our attention during oral submissions to any matters which he regarded as best supporting his application, we will deal in this judgment with those matters which Mr Riddell identified in response to that request.

32. [87]

    Mr Riddell has repeatedly submitted that “he was forced to withdraw [his first application for an extension of time to file a notice of appeal and to seek leave to appeal] after CDPP wrote this appeal on his behalf after the court allowed Neil SC to do so”. It is apparent that this is a reference to an exchange that occurred at a callover before the Registrar of this Court on 10 September 2015 and the appeal book then filed by the Crown.

33. [88]

    Mr Riddell attended the callover by video link. Mr Neil SC appeared for the Crown for all grounds except ground 2 with Ms England who appeared on all grounds. During oral submissions on the current application, Mr Riddell referred to the transcript of this callover and submitted that “you have to go back to the transcripts”. He then submitted:

34. [89]

    That transcript shows Mr Riddell had sought to appeal under s 5F of the Criminal Appeal Act against orders of R A Hulme J in March 2015 directing that he provide a summary of his arguments on appeal within a specified page limit, but that the purported appeal had not been accepted for filing. The Registrar informed Mr Riddell that he could agitate that at the hearing listed for his substantive appeal if he wished to. Mr Riddell confirmed during the callover a “25 page summary” he had had attached to the purported s 5F appeal summarised his grounds of appeal. He also confirmed that he had filed a 10 page outline with his appeal, together with approximately 900 pages of his notes.

35. [90]

    Following concerns being raised by Mr Neil SC as to the cost involved in printing the volume of material relied upon by Mr Riddell, the Registrar observed that it was unlikely that Mr Riddell would summarise and clarify his materials. Thus, she gave the Crown leave to file one appeal book for the appeal, on the basis that the Court would be able to put its hands on the remainder of the material and that that could be brought up if necessary and that “the bench will have access to all the documents that you’ve provided so you don’t need to worry about that”. She also identified that the Court would move forward on the basis of Mr Riddell’s 10 page and 25 page summaries. Finally Mr Riddell told the Registrar that his appeal was not ready and could not be heard on the date fixed for the hearing, being 23 October 2015.

36. [91]

    As is apparent from what is set out above, the Registrar expressly indicated to Mr Riddell that the Court would move forward on the basis of Mr Riddell’s 10 page summary of grounds and further 25 page summary together with Mr Riddell’s notes, and that the Court would have access to all of the material that he had filed or submitted to the Court. We would reject Mr Riddell’s submission that there was anything improper about this procedure. We would also reject Mr Riddell’s submission that the application that was before this Court on 23 October 2015 was Mr Neil SC’s appeal, or the Crown’s appeal, and not Mr Riddell’s appeal. Having considered the transcript of the hearing on 23 October 2015, we are satisfied that the appeal before the Court was that of Mr Riddell.

37. [92]

    Mr Riddell contends that the decision in Riddell v R (No 3) [2017] NSWCCA 92 is erroneous because the bench on that occasion could not find Mr Riddell’s 47 pages of grounds of appeal and deliberately substituted them for a three page list of grounds and thus determined his application on the basis of the wrong document. This complaint is best explained in an email sent by him to the Registrar on 7 November 2022. The basis for the complaint appears to be that the Court did not cite from his 47 page grounds filed on 20 December 2016 and instead, when citing two of his grounds of appeal, did so from an “irrelevant summary document”. He also contends that when the Court supplied him with digital versions of files from this Court’s archives he “found my 47 page grounds in the middle of the Appeals Bail folder”. In his submissions in reply on the current application, he contends that this amounts to an abuse of process and is a reason why the decision should not be relied upon.

38. [93]

    Mr Riddell relies upon a Supreme Court of NSW Record of Proceedings in the Bails Callover List before the Acting Registrar, dated 6 February 2017, which records that the matter was listed for callover on 16 February 2017 and under the heading “Other orders or directions” says “Material Filed needs to be copied and served upon CDPP – 6 page letter; 15 grounds of appeal – locate that document; Hoeben CJ”. However, the record of the callover on 16 February 2017 says nothing about lost grounds but records that Mr Riddell had filed two folders of material, and that Mr Riddell was ordered to file three pages of submissions on the question of leave. It appears that Mr Riddell complied with this order, as the Registrar subsequently recorded that Mr Riddell had filed submissions on 20 December 2016, an affidavit of 3 December 2016, and submissions of 21 March 2017 “purporting to be in accordance with my order to file short written submissions of no more than 3 pages”.

39. [94]

    The document that Mr Riddell contended to be his “grounds of appeal” which were lost by the Court, is a 47-page document filed 20 December 2016.

40. [95]

    There is no evidence before the Court to support Mr Riddell’s contention that the Court lost Mr Riddell’s grounds of appeal, still less, that the Court relied upon something other than Mr Riddell’s grounds of appeal. The judgment of this Court in Riddell v R (No 3) [2017] NSWCCA 92 makes it clear that the Court had regard to a document entitled “Grounds of Appeal” which was filed by Mr Riddell on 20 December 2016: at [8]. It is also clear that the Court had before it some 54 closely typed pages of submissions filed on 20 December 2016, and a further 139 pages of further submissions supplied by Mr Riddell at 1 May 2017: at [12]-[13]. That strongly suggests that the Court had before it the grounds of appeal filed on 20 December 2016 whether or not it was from that particular document that the Court used when it cited the first two of Mr Riddell’s grounds in the judgment at [10]. Mr Riddell’s contention that this Court determined that application without a proper appreciation of Mr Riddell’s grounds of appeal should be rejected.

41. [96]

    Mr Riddell contends that it was not until the judgment of Wright J in Riddell v R [2023] NSWCCA 167 that he (and he submits the Crown and the Court) knew what order (2) as made by Beech-Jones CJ at CL in Riddell v R [2022] NSWCCA 198 constituted. He relies in this regard upon the judgment of Wright J at [15], where his Honour explained to Mr Riddell that what was required to be included in the materials was a summary of Mr Riddell’s submissions in support of his 15 grounds of appeal and did not have to include “material such as the transcript, exhibits and judgments from the two trials in the District Court or the other documentary evidence on which he proposed to rely” which would be included in any event in the materials before the Court if leave to appeal out of time were granted.

42. [97]

    It cannot be said that there was any lack of certainty as to what was required by the orders of Beech-Jones CJ at CL, namely that Mr Riddell limit the nearly 4,200 pages of submissions and materials (which as set out above, largely constituted repetitive submissions) into a consolidated set of submissions which did not exceed 200 pages. If there was any doubt about what this required, this would have been resolved at the hearing of the purported appeal against those orders on 9 November 2022 where Justice Button explained to Mr Riddell that in those submissions he could cross-reference “to all the other material that will be before the bench in any event”. To that, Mr Riddell responded “It’s not a question of 200 pages of submissions” and referred his Honour to annex BJ1 which he described as “basically 1,200 pages of those 4,000 pages that are currently in issue they are just a running list of transcript references to be read as the Court reads the transcript of the first trial and re-trial”. It is apparent from this that Mr Riddell understood what was required of him by order (2) of the orders of Beech-Jones CJ at CL.

43. [98]

    Mr Riddell submits that Wright J misunderstood his position as to whether he would be able to prepare submissions of 200 pages. It is clear from the extracts from the transcript which the Mr Riddell has included in Part C of his written submissions that before Wright J, he protested that he thought that “it can’t be done that way”, that it was “impossible” and that he couldn’t comply.

44. [99]

    Relevantly, in Riddell v R [2023] NSWCCA 167 Wright J held:

45. [100]

    There is no error in the judgment of Wright J in this regard. At [20], Wright J clearly recorded that Mr Riddell considered it would be difficult or impossible to comply with the direction to limit his submissions and summary of annexure to 200 pages. However, Wright J indicated that, despite these protestations, his impression was that Mr Riddell seemed to be prepared to attempt to do so. There is nothing in the material relied upon by Mr Riddell that demonstrates that his Honour erred in forming that impression.

46. [101]

    Even if he did, we would not be prepared on that basis to revisit his Honour’s orders. As his Honour repeated during Mr Riddell’s oral submissions before him (recorded in the extracts from the transcript of the hearing relied upon by the applicant in Part C of his submissions in chief on the current application) that a limit of 200 pages was a “very” and “extraordinary generous allowance”. Even if Mr Riddell did not appear to indicate a willingness to attempt to comply with such a direction, the interests of justice do not require that the orders of Wright J be reconsidered, vacated or amended. They gave Mr Riddell more than a fair further opportunity to comply with the orders of this Court.

47. [102]

    Mr Riddell also complains that Wright J “ignored all facts and law stated in the Crown Application for Dismissal Book”. There is simply no foundation for that contention. Whilst Mr Riddell has included in his written submissions a detailed critique of the judgment of Wright J, we would reject the contention that Wright J ignored the material in the application book before him. No such inference should be drawn from the terms of his Honour’s judgment and none of the matters relied upon by Mr Riddell in his submissions would persuade the Court that it should draw such an inference.

48. [103]

    In our judgment, there are powerful factors which stand against reconsidering, vacating or amending the orders made by Wright J on 30 June 2023. These factors amply outweigh the matters relied upon by Mr Riddell. We are not persuaded that it is in the interests of justice that the orders of Wright J be reconsidered, vacated or amended.

49. [104]

    Of most significance is Mr Riddell’s failure, over the period of nearly 18 months between 8 September 2022 when the orders of Beech-Jones CJ at CL were made and the hearing before this Court on 1 March 2024, to comply with orders of this Court made on three separate occasions that he should be required to file submissions limited to 200 pages. Whilst he may consider that it is a waste of his time to do so, that does not excuse the blatant and deliberate failure to prosecute his application for leave to appeal with due diligence by complying with orders of this Court.

50. [105]

    According to those orders, reiterated by this Court on 9 November 2022, compliance was required by 31 January 2023. By the time of the orders of Wright J on 30 June 2023 that non-compliance had persisted for over five months. Mr Riddell clearly refuses to accept that he should be subject to such a limit, but that is not a reason for finding that there is anything erroneous or unauthorised about such order. Nor does that excuse the deliberate decision of Mr Riddell to make no attempt to comply with this Court’s orders over that period of time. As was held by Wright J, this non-compliance should not be countenanced: Riddell v R [2023] NSWCCA 167 at [18]. It amounts to a failure to prosecute his application for leave to appeal diligently. It stands strongly in favour of there being a dismissal of the current application and as a consequence his application for leave to appeal.

51. [106]

    As has been repeatedly stated in this Court, in the period since 2015, Mr Riddell is not entitled to expect that the Court, and the Crown, will devote limitless resources to considering his various applications. The interests of justice demand that regard is taken of the interests of other litigants in this Court, and the unreasonable judicial resources that would be diverted to Mr Riddell’s application if the situation was otherwise. In this regard, it cannot be doubted that the judicial resources required, even in the event that Mr Riddell had complied with Wright J’s order to limit his submissions and if necessary a summary of materials relied on to 200 pages, would be significant. As is apparent from the background set out above, considerable judicial resources have already been expended upon Mr Riddell’s applications.

52. [107]

    It is also relevant that the application for leave to appeal made in April 2022 is the third occasion on which Mr Riddell has sought to challenge his conviction and sentence. Contrary to Mr Riddell’s submission, the history of his applications demonstrate that he has not been “prevented from enlivening his substantive right of appeal since 2007”. Mr Riddell has been given more than a reasonable opportunity to advance an appeal against his conviction and sentence.

53. [108]

    Moreover, having reviewed the material relied upon by Mr Riddell in support of his current application to reconsider, vacate or amend the orders of Wright J, it is apparent that the only change of circumstances on which he relies is, as set out in his affidavit filed on 27 February 2024 which, to the extent admitted as evidence for the purposes of his application, provides:

54. [109]

    Mr Riddell did not submit that this was a material change of circumstances since the date of the orders of Wright J on 30 June 2023. Nor did he submit that he had been physically unable to comply with the orders of Wright J. Any such submission would, in any event, have been rejected given that Mr Riddell produced 25 pages of detailed submissions (in chief and reply) in support of the current application in August and October 2023, and in November 2023 produced 26 pages of very detailed submissions in his “Notice of a Constitutional Matter” which he served on the various Attorneys-General, and were accompanied by 37 pages of submissions on the “Relevant Law”, a 47 page “Summary of events relevant to application” and a further 36 page annexure entitled “Abrogation of Ch III in NSW”. These 172 pages in total clearly demonstrate Mr Riddell’s ability to spend time producing detailed and lengthy material for the purposes of these proceedings.

55. [110]

    There is thus no material change of circumstances from those applying at the time of the orders of Wright J upon which Mr Riddell can rely on the current application.

56. [111]

    In these circumstances, we are not satisfied that it is in the interests of justice that the orders of Wright J be reconsidered, vacated or amended. To the contrary, we are satisfied that the interests of justice strongly support the orders made by his Honour.

Recusal application

1. [112]

   Prior to the Court embarking on the hearing of Mr Riddell’s application, the Court considered an application which had been made by him in an email forwarded to the Presiding Judge’s Associate earlier on the day of the hearing. The email sought that Davies J recuse himself because his Honour had formed part of the bench in Riddell v R [2016] NSWCCA 70 and Riddell v R (No 2) [2016] NSWCCA 74.

2. [113]

   The basis for the application was that the findings in those two judgments suffered from a denial of procedural fairness, unreasonableness and jurisdictional error, and were obtained irregularly, unlawfully and against good faith. That was said to have come about because the application that the Court dealt with which resulted in Riddell v R [2016] NSWCCA 70 was actually an application by the Crown and not the application which Mr Riddell had brought. After the Court refused an adjournment to Mr Riddell in Riddell v R [2016] NSWCCA 70, Mr Riddell said that he was forced to apply to abandon what he described as “Neil’s Appeal”, which resulted in Riddell v R (No 2) [2016] NSWCCA 74.

3. [114]

   Mr Riddell submitted that because the appeal before the Court was not his appeal but a Crown appeal, and because the Crown now relies upon Riddell v R [2016] NSWCCA 70 and Riddell v R (No 2) [2016] NSWCCA 74 as part of its argument against extending time for Mr Riddell’s appeal, there is an apprehension of bias for Davies J to take part in any determination of the present application. Mr Riddell relied on what was said in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2003) 97 ALJR 419 (“QYFM”).

4. [115]

   At the time Mr Riddell applied for Davies J to recuse himself, the Court, having considered Mr Riddell’s submissions on the point, refused the application and indicated that reasons would be provided in the substantive judgment on his application. These are the reasons for that decision.

5. [116]

   A determination of whether there is an apprehension of bias on the part of one member of a multi-member bench is a jurisdictional fact that the whole of the court must determine for itself in order to be satisfied of its own jurisdiction, and the determination of that question of jurisdictional fact is not antecedent to the performance of the curial function but part of that function: QYFM at [28]. The test in relation to apprehension of bias is set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8].

6. [117]

   The issues raised by Mr Riddell leading to his application for Davies J to recuse himself have been dealt with earlier in this judgment at [87]-[91]. We have determined that the application made to this Court, where Davies J sat as one of the judges, was not the appeal of the Crown but was Mr Riddell’s own appeal which he had filed on 7 November 2012 against his conviction and sentence. In that way, the premise on which the present recusal application depends is not made out.

7. [118]

   In Riddell v R [2016] NSWCCA 70, all that was determined was a refusal to permit Mr Riddell’s appeal to be adjourned on the basis that he was not ready to argue the appeal. There was no determination of the merits of the appeal. It cannot be concluded, without something more, that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question before the Court: Re JRL; Exp CJL (1986) 161 CLR 342 at 352; [1986] HCA 39. Mr Riddell did not submit that the refusal of an adjournment gave rise to an apprehension of bias.

8. [119]

   In Riddell v R (No 2) [2016] NSWCCA 74 the Court acceded to Mr Riddell’s application for leave to withdraw his appeal. Given that we have already rejected the premise of Mr Riddell’s recusal application, there is no basis for an apprehension of bias in these circumstances.

Conclusion

1. [120]

   For the reasons set out above, Mr Riddell’s applications should be dismissed.

2. [121]

   Accordingly, we make the following orders:

   1. (1)

      The application that Davies J recuse himself is dismissed.

   2. (2)

      The application is dismissed.