Gould v R

1. [1]

   BELL CJ: On 26 November 2019, after a trial before a jury which ran over the course of 17 days, Mr Vanda Gould (the Applicant) was found guilty of a single count of attempting to pervert the course of justice contrary to s 43 of the Crimes Act 1914 (Cth).

2. [2]

   That attempt had occurred in the context of proceedings before Perram J in the Federal Court of Australia, which involved a challenge to various income tax assessments in respect of companies associated with the Applicant (the Federal Court proceedings). A central issue in those proceedings was whether those companies were resident in Australia and/or were controlled in Australia by the Applicant or whether they were controlled by a Mr Peter Borgas, a Belgian citizen resident in Switzerland.

3. [3]

   The Crown submitted in this Court (and it was not relevantly disputed) that the Applicant had engaged in the coaching of Mr Borgas, who gave evidence over 10 days in the Federal Court proceedings, by sending him "Question and Answer" documents (anticipating questions he might be asked in cross examination and directing him to the responses to give), discussing the contents of these documents in telephone calls and "Skype" sessions (including by way of rehearsal and adopting the approach of an "exam"), and continuing to do so whilst Mr Borgas was under cross-examination after Perram J had directed this not occur. In the Applicant’s criminal trial in the District Court, Mr Borgas gave evidence that the evidence he had given in the Federal Court proceedings in respect of which the Applicant had coached him was false and was given following inducements from the Applicant that he would be “looked after”.

4. [4]

   Implicit in the jury’s verdict was a finding that the Applicant (who did not give evidence at the criminal trial) believed the evidence he encouraged Mr Borgas to give in the Federal Court proceedings was false or was evidence that Mr Borgas would not otherwise give.

5. [5]

   On 17 December 2020, the Applicant was sentenced to a term of imprisonment of 3 years and 4 months, with a non-parole period of 1 year and 8 months.

6. [6]

   The Applicant was represented at that trial by Mr C Smith SC (as his Honour then was) and Mr W de Mars.

7. [7]

   Following his conviction, the Applicant sought leave to appeal to this Court against his conviction on two grounds (one of which was ultimately abandoned), as well as seeking leave to appeal against sentence (the first appeal hearing). The Crown also brought an appeal against the Applicant’s sentence on the grounds of manifest inadequacy. The Applicant was represented on that occasion by Mr Dhanji SC (as his Honour then was) and Mr D Barrow. Mr Dhanji had appeared for the Applicant in an earlier trial in the District Court in respect of the same charge in which the jury had failed to reach a verdict.

8. [8]

   The ground of appeal in which was pressed in relation to conviction in the first appeal hearing was as follows:

9. [9]

   The first appeal hearing took place over two days, on 7­ and 8 April 2021, before Bathurst CJ, Davies and Adamson JJ. On 10 May 2021, the Court made orders refusing the Applicant leave to appeal against conviction pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (Criminal Appeal Rules), granting him leave to appeal against sentence but dismissing the appeal against sentence: Gould v R; R v Gould (Gould (No 1)). [1]

10. [10]

    Gould (No 1) sets out in great detail the complex background to and context of the count of attempting to pervert the course of justice. These reasons should be read together with that account which does not require full repetition in this judgment. Adamson J gave the leading judgment, dealing in a typically thorough and detailed way with the conviction appeal. Her Honour held that “[w]hatever Mr Borgas’s state of mind, there was an attempt to pervert the course of justice because Mr Borgas was not giving evidence from his own memory and knowledge, untainted by the appellant’s instruction and influence”. [2]

11. [11]

    The Court allowed the Crown’s sentence appeal, quashing the Applicant’s sentence and resentencing him to 6 years’ imprisonment with a non-parole period of 3 years and 6 months.

12. [12]

    Following Gould (No 1), on 7 June 2021, the Applicant filed in time an application in the High Court for special leave to appeal.

13. [13]

    In early August 2021, the Applicant retained his current solicitors, Colin Biggers & Paisley, who in turn retained his current counsel, Mr G O’L Reynolds SC, Mr D P Hume and Mr D A Ward.

14. [14]

    On an unknown date thereafter, the special leave application was abandoned and, on 14 December 2021, almost a year after he had been sentenced and 8 months after leave to appeal his conviction had been refused, a further application for leave to appeal was filed in this Court (the second application for leave to appeal). That application comprised some 16 draft grounds of appeal as follows:

15. [15]

    The Applicant also filed, as an annexure to his draft Notice of Appeal, a statement as required by r 3.5(1)(b) of the Criminal Appeal Rules setting out the reasons for filing a notice of appeal out of time. The statement was dated 13 December 2021.

16. [16]

    The reasons contained in the statement were as follows:

17. [17]

    The Applicant filed written submissions of some 45 pages together with his application for leave to appeal. The only argument advanced as to why leave to appeal out of time should be granted was the assertion that “Gould has strong grounds of appeal and there has been a grave miscarriage of justice both at trial and in the earlier appeal to the CCA”.

18. [18]

    The Crown filed written submissions of 89 pages on 22 July 2022, opposing any grant of leave to appeal or extension of time. At the request of the Registrar of the Court of Criminal Appeal, the Applicant subsequently filed supplementary written submissions on a particular point of law on 29 July 2022, to which the Crown replied with further submissions on 25 August 2022.

19. [19]

    The hearing of the second application for leave to appeal was set down for two days. As events transpired, the hearing occupied two and a half days, from 22 to 24 November 2022, with the Court sitting extended hours on each of those days.

20. [20]

    On the first day of the hearing of the second application, senior counsel for the Applicant provided the Court with a further supplementary “note” of some 22 pages which contained submissions in abbreviated form in reply to the Crown’s submissions in relation to the ground of appeal which alleged that the verdict of the jury was unreasonable. It was regrettable that neither the Court nor the Crown was provided with this document at an earlier time, given that it purported to respond to submissions that had been filed some 4 months earlier.

21. [21]

    The grounds set out in the draft notice of appeal in the second application for leave to appeal did not overlap with those agitated in the course of the first appeal hearing. Nor was it the case that any of the grounds of appeal sought to be pursued were “fresh” in the sense that they were based upon new evidence or a change in or development of the law since the time of the first appeal hearing. They were all grounds which were available to the Applicant and his then legal advisers at the first appeal hearing.

22. [22]

    Senior counsel for the Applicant accepted that, had the Court of Criminal Appeal which heard the first application for leave to appeal against conviction in April 2021 granted leave to appeal but dismissed the appeal, no further application for leave to appeal or any further appeal could have been brought other than to the High Court, by grant of special leave to appeal. Grierson v The King [3] (Grierson) stands as authority for this proposition. Grierson has been followed in the High Court and intermediate appellate courts on a number of subsequent occasions. [4]

23. [23]

    In R v Saxon [5] (Saxon), Wood J (with whom Smart and Sperling JJ agreed) rejected an argument that, notwithstanding Grierson, there existed some general or inherent jurisdiction which permitted the Court to intervene at any time in the interests of justice. [6] The only exceptions to Grierson were, first, where an appeal had been abandoned, and thus not heard on the merits; second, where an application was made before perfection of the orders from the first appeal or application for leave to appeal; and, third, where there had been a denial of procedural fairness in the Court of Criminal Appeal which heard the first application for leave to appeal.

24. [24]

    None of these exceptions applied in the present case, although there was a belated and ambitious attempt to contend that there had been a denial of procedural fairness in the first appeal hearing because of the way the case had been presented.

25. [25]

    A critical point in the present case is whether the, on one view, entirely serendipitous fact that the earlier constituted Court of Criminal Appeal merely chose to refuse leave to appeal in relation to the challenge to conviction (rather than grant leave to appeal but dismiss the appeal) allows the Applicant to have a second (and large) “bite of the cherry”. Had leave to appeal been granted but his earlier appeal been dismissed, the Applicant would have been precluded from this course by Grierson which is underwritten by the important principle of finality. This can be described as the jurisdictional issue.

Jurisdiction

1. [26]

   In Grierson, the High Court affirmed the decision of the Supreme Court of New South Wales sitting as a Court of Criminal Appeal (Jordan CJ, Davidson and Halse Rogers JJ concurring) to refuse an application by Mr Grierson to reopen his original appeal (which had been dismissed in 1933) or to give him leave to bring a fresh appeal. [7]

2. [27]

   Jordan CJ’s judgment was short and to the point:

3. [28]

   In the High Court, Dixon J said: [8]

4. [29]

   The words in italics on their face appear to overstate what Jordan CJ had held in the Court of Criminal Appeal. The Chief Justice’s observations were directed towards an attempted second appeal as opposed to a second application for leave to appeal. On the other hand, the decision of the Full Court of the Supreme Court of South Australia in R v Edwards [No 2] [9] to which Jordan CJ referred involved the refusal to grant an extension of time within which to bring an application for leave to appeal in circumstances where an earlier hybrid appeal as of right and application for leave to appeal a conviction had been refused. The Edwards Court said that:

5. [30]

   The italicised words in the judgment of Dixon J extracted at [28] above extend the preclusive principle to cases where an application for leave to appeal had been entertained upon the merits but had been dismissed. In other words, the preclusion of further proceedings (other than a special leave application to the High Court) arose not only on the dismissal of an appeal but the dismissal of an application for leave to appeal. McTiernan J agreed with Dixon J but also agreed with Rich J who did not extend the principle to one which prevented the bringing of a second application for leave to appeal when an earlier application had failed. Rich J did not express a view as to that scenario. Starke J simply expressed his agreement with Jordan CJ’s judgment.

6. [31]

   Grierson was cited in Postiglione v The Queen [11] (Postiglione). Postiglione was a case involving a second application for leave to appeal against sentence in a case where, subsequent to the first appeal but in separate proceedings, a co-offender had been sentenced. Mr Postiglione wished to challenge his sentence on parity grounds in light of the sentence meted out to his co-offender subsequent to his own first appeal.

7. [32]

   In this case, Dawson and Gaudron JJ [12] cited Pantorno v The Queen [13] (Pantorno) as authority for the proposition that an intermediate appellate court which has dealt with an appeal can entertain a subsequent application to remedy a denial of procedural fairness, whether or not its earlier order dismissing the appeal had been perfected. As such, their Honours identified an exception to Grierson, namely the third exception referred to in [23] above. Dawson and Gaudron JJ then said: [14]

8. [33]

   In Postiglione, Kirby J [15] also observed that:

9. [34]

   Although Dawson and Gaudron JJ referred to Grierson, neither they nor Kirby J engaged with the apparent inconsistency between what Dixon J had said in Grierson and the statement in Postiglione that “there is no reason in principle to prevent a person bringing a second application for leave to appeal if an earlier application has been dismissed”.

10. [35]

    Notwithstanding Postiglione, a number of Australian intermediate appellate courts have applied the observations of Dixon J in Grierson and held that there is no jurisdiction to entertain a second application for leave to appeal where an earlier application for leave to appeal has been heard on its merits but leave to appeal has been refused. [16] The most recent example of this was by a bench of five in the Victorian Court of Appeal in Visser v The King [17] (Visser), which will be considered in more detail below.

11. [36]

    In R v GAM (No 2) [18] (GAM), Winneke P expressed the view that, subject to certain limited exceptions, the Victorian Court of Appeal had no power to reopen either an application for leave to appeal or an appeal (whether against conviction or sentence) which has been determined on the merits on the grounds of fresh evidence, [19] and that an appellate court which had heard an appeal or application for leave to appeal was functus officio. [20] Thus the President said:

12. [37]

    One point made by the President was that the availability of a “second go” should not “wholly depend upon the words used by the appellate court in disposing of the application”. [22] In a similar vein, Bleby J in R v Parenzee [23] observed that:

13. [38]

    In R v Upson, [24] the Queensland Court of Appeal also invoked Grierson in aid of its decision to refuse an extension of time within which to bring a second appeal against conviction. In R v Upson (No 2), [25] that Court similarly refused an extension of time within which to bring a second appeal against sentence, invoking Grierson.

14. [39]

    In R v Nudd, [26] Keane JA, in refusing an extension of time to bring a second appeal, also cited Grierson and said of the applicant’s earlier appeals to the Court of Appeal and the High Court:

15. [40]

    In the same case, de Jersey CJ (with whom Mullins J agreed) observed:

16. [41]

    In Western Australia, it has been held that a second application for an extension of time within which to appeal is not possible at least where the first application has been rejected on the merits. [27]

17. [42]

    Postiglione and its interplay with Dixon J’s decision in Grierson was considered by this Court in Lowe v The Queen [28] (Lowe). That case involved a second application for leave to appeal against sentence, an earlier application for leave to appeal having been refused. [29] That (second) application was brought after a co-offender had been sentenced, had had his own appeal from sentence dismissed following a grant of leave to appeal, but succeeded in having it reviewed and reduced following a referral to the Court pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) in light of the High Court’s decision in Muldrock v The Queen: [30] see Sinkovich v R [31] (Sinkovich). It may be observed, parenthetically, that the referral in Sinkovich implicitly recognised, consistent with Grierson, that a further application for leave to appeal could not be brought following the earlier grant of leave but dismissal of the appeal.

18. [43]

    Lowe, therefore, was a decision closely analogous to Postiglione in that it involved a second application for leave to appeal in light of an adjustment downwards of a co-offender’s sentence. The substantive argument rested on principles of parity in light of the reduced sentence secured in Sinkovich.

19. [44]

    In Lowe, Davies J conducted a survey of decisions of other Australian intermediate appellate courts in relation to what I have described as the jurisdictional issue. His Honour stated that: [32]

20. [45]

    In the same case, Simpson JA (who agreed with Davies J and with whom Ward JA agreed) held at [7] that “[r]efusal of leave to appeal does not create a jurisdictional bar to any further proceedings”, that the remarks of Dixon J in Grierson were obiter and had been superseded by the observations of Dawson and Gaudron JJ and Kirby J in Postiglione. [33] On the other hand, her Honour acknowledged that the fact that an earlier application for leave to appeal had been refused may be relevant to a discretionary refusal to grant leave to appeal on a second applications. [34]

21. [46]

    In R v Gopurenko, [35] the Queensland Court of Appeal referred to Lowe but found it unnecessary to revisit the jurisdictional issue on the basis that:

22. [47]

    More recently, Lowe was considered by the Victorian Court of Appeal in Visser. In that case, a bench of five judges affirmed the correctness of GAM. Visser was an application for an extension of time within which to apply for leave to appeal against sentence. The Court held that, because the proposed application for leave to appeal against sentence was incompetent, applying GAM, the putative application for an extension of time within which to file a notice of application for leave to appeal against sentence would therefore be refused. It was of no consequence, the Court said, “whether the previous determination takes the form of an order dismissing the appeal, or an order refusing leave to appeal”. [36]

23. [48]

    The Court in Visser noted that, since 2008, Victoria had differed from every other State in that there was no longer any appeal as of right in criminal matters dealt with on indictment, and leave to appeal was required in every case. The Court also observed that Part 6.3 of the Criminal Procedure Act 2009 (Vic) with its emphasis on time limits imposed by s 279, which were “evidently directed to the prompt achievement of finality”, did not sit comfortably with a person who has had an application for leave to appeal refused after a determination of the proposed grounds of appeal on the merits being entitled to make further applications for leave to appeal. [37]

24. [49]

    The Visser Court also noted that “the decisions of the Court comprising more than one judge refusing leave to appeal after assessing the merits of the proposed appeal have the same precedential value as decisions in which, leave having been granted, the appeal is dismissed”. [38]

25. [50]

    Visser was handed down after the hearing of the second application for leave to appeal in the instant case. Both parties were invited to make submissions in relation to it. The Crown indicated that it did not intend to file any initial submission on that decision, noting simply that its position was that the decision generally “turned upon the proper construction and application of the legislation applicable in the State of Victoria (see in particular at [109] and [119])”. The Applicant took a similar position, noting that the decision was “of no significance to his case, it being based on the Victorian Criminal appellate practice and being based on different statutory provisions from those in New South Wales (see Lowe).”

26. [51]

    No challenge was made to Lowe in the present case nor was there any attempt made on behalf of the Crown to confine it to its facts which, as has been pointed out, were closely analogous to Postiglione in that it involved a second application for leave to appeal a sentence invoking the parity principle in light of an adjustment to a co-offender’s sentence subsequent to the first refusal of leave to appeal.

27. [52]

    Accordingly, this Court must proceed on the basis that Lowe was correctly decided notwithstanding the fact that intermediate courts of criminal appeal in other States have considered themselves bound by Grierson and held that, provided that an application for leave to appeal has been heard on its merits, a subsequent application for leave to appeal will be incompetent even if leave to appeal was refused on the first occasion it was sought. For this position to be adopted in New South Wales would, in my view, require a formal challenge to the correctness of Lowe.

28. [53]

    For present purposes, it is also convenient to proceed on the basis that the decision in Lowe should not be confined to its facts (without deciding the matter). No argument to the contrary was made before the Court, and as will be seen, the answer to that question does not affect the ultimate disposition of this application for leave to appeal.

29. [54]

    As the following analysis shows, and as Simpson JA observed in Lowe, [39] depending on the circumstances, an initial refusal of an application for leave to appeal might supply a strong discretionary reason against the grant of a second application for leave to appeal or the grant of any extension of time in respect thereof (a second application for leave to appeal almost inevitably requiring such a discretionary extension of time).

Discretionary considerations

1. [55]

   The Applicant requires an extension of time in which to prosecute his second application for leave to appeal to this Court. The time at which he filed his second application for leave to appeal is some eleven months after the 28-day period prescribed by the rules for filing an application for leave to appeal: see Criminal Appeal Act 1912 (NSW) s 10(1)(b).

2. [56]

   The Applicant also requires a grant of leave:

3. [57]

   The grant of an extension of time, the grant of leave to appeal and the grant of leave under r 4.15 all require an exercise of this Court’s discretion in favour of the Applicant.

4. [58]

   That discretion falls to be exercised in a most unusual circumstance, namely where the Applicant has already brought an application for leave to appeal which has been heard on the merits and refused, and the opportunity to pursue a timely application for special leave to appeal has been eschewed.

5. [59]

   If, consistent with Lowe, there is strictly no jurisdictional bar to a second application for leave to appeal, an important discretionary consideration must be the fact that, as a matter of substance, the Applicant has already had a full, albeit unsuccessful, hearing in the Court of Criminal Appeal challenging his conviction.

6. [60]

   In this context, the inveterate practice of the Court of Criminal Appeal in New South Wales (and the practice followed in the first appeal hearing) is to hear an application for leave to appeal “concurrently” as if it were a full appeal with leave having been granted. Invariably, applications for leave to appeal in the Court of Criminal Appeal are heard by benches of three judges, with no restrictions or limitations upon the time for oral argument or length of written submissions. The reasons for refusing leave to appeal will typically be substantial and extensive, as they were in Gould (No 1). In other words, whilst applications for leave to appeal in some other courts and some other contexts may be truncated as to length of submissions and the time allocated for oral argument, no such restraint or limitation applies to hearing in the Court of Criminal Appeal, and none applied in Gould (No 1) which, as noted above, was heard over two days before a bench of three judges.

7. [61]

   The present case is unlike Postiglione or any of the other exceptions to Grierson: see [23] above. Why, it may be asked, should a party be permitted in those circumstances and in the exercise of the Court’s discretion, to have a further opportunity to seek leave to appeal, especially where there is no suggestion of any new evidence or changed circumstances, other than the fact that he has retained a new legal team which, according to the statement in support of an extension of time set out at [16] above, has scoured over the earlier trial and appeal proceedings for almost three months?

8. [62]

   In the particular context of r 4.15 (and its predecessor r 4), this Court has frequently counselled against so called “armchair appeals” in which “counsel not involved at trial appears to have gone through the record in minute detail looking for error, without reference to the manner in which the trial was conducted”. [40] In Abusafiah v R (Abusafiah) Hunt CJ at CL said: [41]

9. [63]

   Before considering the question of extension of time and discretionary leave, whether generally or pursuant to r 4.15, it is helpful to identify some authority relating to applications for extension of time generally, for leave pursuant to r 4.15 and for leave to appeal more generally pursuant to s 5(1)(b) of the Criminal Appeal Act.

10. [64]

    Section 10(1)(b) of the Criminal Appeal Act provides that “[t]he court may, at any time, extend the time within which the notice [of intention to appeal or application for leave to appeal] is required to be given to the court or, if the rules of court so permit, dispense with the requirement for such a notice."

11. [65]

    This power was described as “wide” in Kentwell v The Queen (Kentwell). [43] In that case, the plurality continued as follows: [44]

12. [66]

    Kentwell disapproved a test for the extension of time which had been articulated by this Court in Abdul v The Queen. [45] Rather, the Court appeared to endorse the observations of this Court in R v Young [46] to the effect that “it was impossible to foresee all of the circumstances that may bear on the determination of an application to extend time …”, thus emphasising the width of the discretion, before continuing that an extension application was to be determined by asking whether "it is just under the circumstances that such an order should be made". [47]

13. [67]

    The Kentwell plurality said that “[t]he wide discretion conferred on the Court of Criminal Appeal under the Act and Rules is to be exercised by consideration of what the interests of justice require in the particular case”. [48] Accordingly, it is important not to circumscribe any broad discretion such as that relating to an extension of time.

14. [68]

    The High Court in Kentwell did not, however, suggest that matters such as the lack of explanation for the delay that had occasioned the need for an extension of time, the quality or cogency of any explanation, or the existence or absence of changed circumstances were irrelevant to a consideration of what the interests of justice required. True it is that the plurality said that “at least in the case of an out-of-time challenge to a sentence that is being served, the principle of finality does not provide a discrete reason for refusing to exercise the power”. [49] This observation was not made, however, in circumstances such as those of the present case where an earlier application for leave to appeal against conviction had been heard on its merits and rejected.

15. [69]

    In Abusafiah, Gleeson CJ and Mahoney JA agreed with the observation of Hunt J that: [50]

16. [70]

    In Upson (No 2), albeit in the context of jurisdiction rather than discretion, the Queensland Court of Appeal held that: [51]

17. [71]

    An interesting and difficult question arises as to the extent to which the merits of the draft grounds of appeal should be taken into account on an application for an extension of time. There is little question that a consideration of the merits of draft grounds of appeal will be relevant in the context of an application for an extension of time where no previous appeal hearing (in which I include a hearing on the merits of an application for leave to appeal) has occurred. In Seiler v Minister for Immigration, Local Government and Ethnic Affairs, [53] French J, in relation to s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), said that "a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it".

18. [72]

    Kiefel CJ, Gageler, Keane and Gleeson JJ in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [54] (Tu'uta Katoa) cautioned against the automatic translation of this observation to other statutory contexts without having regard to any material differences in those contexts. Their Honours continued, however, by observing that:

19. [73]

    In Gallo v Dawson, [55] McHugh J observed that the discretion to extend time “can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant” and that:

20. [74]

    In Jackamarra v Krakouer (Jackamarra), [57] Brennan CJ and McHugh J importantly said that:

21. [75]

    It follows from the above that, even if the grounds of appeal sought to be raised are arguable, the discretion may still be exercised against an extension of time in any given case. Further, references to review of the merits of proposed grounds of appeal at a "reasonably impressionistic level” (Tu’uta Katoa) or “in a fairly rough and ready way” (Jackamarra) highlight the fact that any greater degree of scrutiny (and the judicial time necessarily involved in such an exercise) would invariably subvert the interlocutory nature of an application for an extension of time. So much may be illustrated by the present case where more than two days were spent hearing argument in relation to the Applicant’s 16 draft grounds of appeal.

22. [76]

    The importance of reviewing the merits of proposed grounds of appeal in the context of an application for an extension of time lies in part in ensuring that, on a "reasonably impressionistic level" or “in a fairly rough and ready way”, proposed grounds of appeal that are not even arguable may be put to one side. It will not always be possible or practicable, however, to go further in order to test how strong the remaining arguable grounds are, especially where, as in the present case, there are some 16 draft grounds. Further, the nature and extent of the review required by M v The Queen [58] and Pell v The Queen [59] (Pell) in order to determine whether a conviction by a jury was unreasonable does not readily lend itself to such an assessment even on a “reasonably impressionistic level”. And, of course, the task of assessing the merits of such grounds in the context of an extension application will be all the more problematic where an underlying trial has run over many weeks, as did the trial in the present case.

23. [77]

    In Tomko v Palasty (No 2) [60] (Tomko), Basten JA observed that each of the judgments in Jackamarra affirmed the need, at least on an application for an extension of time within which to lodge an appeal, to take account of the prospects of success. However, his Honour then went on to make the important observation that it may be necessary to consider whether demonstrating an arguable case is simply a precondition to the grant of an extension of time or whether the demonstration of a stronger case constitutes a positive element to be put in the balance against aspects of delay or default. His Honour’s warning of “the danger in placing too much emphasis on the prospects of success”, noting that “to do so invites the parties to treat the application as a dress rehearsal for the full appeal”, [61] was perceptive and well made.

24. [78]

    The principal purpose of an impressionistic assessment of the merits of potential appeal grounds is to weed out those cases in which it can quickly be concluded that the proposed appeal grounds are hopeless or palpably weak. Otherwise, the Court may proceed on the basis that the proposed appeal grounds are at least arguable. In this context in Tomko, Basten JA expressed the view that it was neither necessary nor appropriate for the applicant to do more than demonstrate a fairly arguable case. This is of some significance in the present case, as the principal reason put forward by the Applicant in submissions as to why he should be granted an extension of time within which to bring his second application for leave to appeal was the essential strength of those grounds: see [17] above.

25. [79]

    In the context of the case before the Court of Appeal in Tomko, Basten JA proceeded on the basis that it was “sufficient to say that a number of grounds are fairly arguable and one at least has reasonable prospects of success.” [62]

26. [80]

    A valuable summary of the principles relating to an extension of time, consistent with the preceding discussion, was also provided by Brereton JA in Renshaw v New South Wales Lotteries Corporation Pty Ltd (Renshaw). [63] Omitting footnotes, his Honour said:

27. [81]

    Finally, the observations of de Jersey CJ in R v Nudd [64] set out at [40] above should be recalled in the context of an application for an extension of time after an earlier application for leave to appeal has been heard and refused.

28. [82]

    The most extensive discussion of r 4.15 (formerly rule 4) in recent case law may be found in the judgments of Basten JA in Greenhalgh v R [65] (Greenhalgh) and Bathurst CJ in Obeid v R (Obeid). [66]

29. [83]

    In Greenhalgh, [67] Basten JA referred to the statement by McHugh J in Papakosmas v The Queen [68] that:

30. [84]

    Basten JA noted that this passage “provided a negative constraint on the grant of leave (“[t]here is no case for the grant of leave under r 4 unless ...” and “an appeal can only succeed if the Court of Criminal Appeal is satisfied that ...”) and had been relied upon in many later cases. [69]

31. [85]

    Reasons given for limiting appeals on points not taken at trial have included (i) a pragmatic consideration of the possible effect on the workload of the appellate court; (ii) the obligation of lawyers to take points in a timely fashion; (iii) the difficulty in judging the effect of an error in circumstances where it was not raised in the course of the trial; and (iv) that in circumstances where no objection was taken at trial, it might be inferred that, as understood in the context of the trial, the point did not have the significance alleged on appeal and the failure to raise it was not likely to have given rise to a miscarriage of justice. [70]

32. [86]

    In Greenhalgh, Basten JA said: [71]

33. [87]

    One feature affecting the application of the discretion inherent in r 4 identified by Basten JA in Greenhalgh was the fact of legal representation at trial. In this context, his Honour identified the pellucid statement of principle by Gleeson CJ in Nudd v The Queen [72] (Nudd):

34. [88]

    The importance of this statement of principle may be seen by its endorsement by the High Court in The Queen v Baden-Clay. [73]

35. [89]

    In Greenhalgh, Basten JA also noted, in the context of his discussion of the question of leave under r 4, that in cases where no direction was sought, it will usually be a precondition to a grant of leave that the omitted direction should be expressly formulated. His Honour correctly observed that “[i]t will be difficult for the appeal court to assess the significance of the omission, being far removed from the context provided by the trial; it will be almost impossible if the terms of the proposed direction are not formulated.” [74]

36. [90]

    In Obeid, Bathurst CJ said that the discretion under r 4 “will be exercised in the applicant’s favour where there has been a miscarriage of justice such that the appellant has lost a real chance of acquittal.” [75] The Chief Justice also agreed with Basten JA’s observation in Greenhalgh that if a necessary element of a fair trial according to law was overlooked, leave should generally be granted. [76]

37. [91]

    There has been little judicial exposition of the principles informing the discretionary grant of leave pursuant to s 5(1)(b) of the Criminal Appeal Act. In practice, the discretion will in many cases be exercised principally by reference to the merits of the proposed appeal. Where the only requirement for leave is that contained in s 5(1)(b), and where the proposed grounds of appeal appear to have strong prospects of success, it is difficult to conceive of a situation in which leave would not be granted.

38. [92]

    Nonetheless, a number of authorities in this Court make clear that the discretion conferred by s 5(1)(b) may also be guided by considerations other than the merits of the proposed grounds. In Xie v R, [77] in justifying a refusal of leave pursuant to s 5(1)(b), the Court (Bathurst CJ, R A Hulme and Beech-Jones JJ) referred to the fact that many of the grounds of appeal “involve[d] or reflect[ed] contentions that could have been but were not raised before [the primary judge]”, in addition to their “absence of merit”. Similarly, in Mesterovic v R, [78] in refusing leave pursuant to s 5(1)(b), the Court (Bathurst CJ, Ward and Payne JJA) considered that there was “no issue of principle raised by any of the applicant’s grounds of appeal.”

39. [93]

    In Nguyen v R, [79] in relation to a ground of appeal concerning the admission of evidence at trial over objection, Basten JA considered a refusal of leave pursuant to s 5(1)(b) to be supported by the “very peripheral importance of the issue and the overwhelming case otherwise presented against [the accused]”.

40. [94]

    In McPhillamy v R, [80] Meagher JA considered whether to grant leave pursuant to s 5(1)(b) together with the requirement for an extension of time. His Honour referred generally to the “interests of justice” as informing both requirements:

Consideration

1. [95]

   Applying the broad test articulated in Kentwell, the threshold question is whether the interests of justice require an extension of time in the circumstances of this particular case, namely where the applicant has already had an application for leave to appeal heard and determined on the merits.

2. [96]

   As noted earlier in these reasons, the only written submissions advanced by the Applicant concerning the application for an extension of time were briefly stated in the following paragraph:

3. [97]

   In oral submissions in chief, Mr Reynolds also advanced two further (and related) submissions which were said to support the contention that there were “exceptional circumstances” justifying a favourable exercise of the discretion to grant an extension of time within which to bring a second application for leave to appeal.

4. [98]

   First, he contended that a number of the proposed grounds of appeal, particularly those alleging deficiencies in the summing-up, raised matters which went to the “root of the proceedings” (referring to Wong v R [81] (Wong)). He submitted that an extension of time and leave to appeal should therefore be granted regardless of whether the relevant matters could have been, but were not, raised at trial or in the course of the first appeal hearing. In this context, he referred to a number of authorities which have considered whether a miscarriage of justice may arise from the failure of a trial judge to discharge his or her obligations to fairly put the defence case to the jury, regardless of whether there was an objection by trial counsel. [82]

5. [99]

   Particular reference was made to a passage from Wong [83] in which Campbell JA, in the context of r 4 of the Criminal Appeal Rules, said:

6. [100]

   Second, Mr Reynolds sought to bring the present application within one of the “exceptions” to the preclusive principle outlined in Grierson, namely, where there has been a denial of procedural fairness during the hearing of the first appeal or application for leave to appeal. In support of this submission, he relied upon Saxon and Pantorno, which have been referred to at [23] and [32] above. It should be noted that it is not entirely apposite to speak of an “exception” to the Grierson principle in the present context, as both parties have proceeded on the basis that the Grierson principle does not strictly apply. Nonetheless, it may be accepted that, by analogy, a denial of procedural fairness during an appeal or first application for leave to appeal, if made out, may weigh in favour of an exercise of the discretion to grant an extension of time within which to bring a second application for leave to appeal.

7. [101]

   In this context, Mr Reynolds referred to the judgment of Payne JA in Brown v R (Brown). [84] In that case, a majority of this Court held that a miscarriage of justice had been occasioned by the failure of defence counsel at a sentencing hearing to advise the accused that he had the right to give evidence, to take instructions about whether he wished to give evidence, and to call him to give evidence about his feelings of remorse. After referring to the remarks of Beech-Jones J (as his Honour then was) in Tsiakas v R, [85] Payne JA went on to say: [86]

8. [102]

   Mr Reynolds sought to transpose and apply the final sentence of the above extract to the present (and very different) context.

9. [103]

   In oral submissions in reply, Mr Reynolds advanced for the first time a fall-back argument to the effect that, even if the Court were not minded to grant an extension of time in respect of the other grounds of appeal, it should do so in respect of ground 5. Without abandoning any of his 16 grounds, he emphasised:

   1. (1)

      that ground 5 concerned a relatively confined question of law, and could be disposed of quickly and without extensive reference to the evidentiary material;

   2. (2)

      that ground 5 did not require leave pursuant to r 4.15 of the Criminal Appeal Rules or s 5(1)(b) of the Criminal Appeal Act, and the only obstacle to it being heard was the requirement for an extension of time; and

   3. (3)

      that the trial judge’s ruling on the elements of the offence, if incorrect, had the consequence that the offence of which the Applicant was found guilty was not an offence in law, and that “the whole trial… proceeded on a false premise”.

10. [104]

    I approach the exercise of discretion, as did Basten JA in Tomko, on the assumption that the proposed draft grounds of appeal are arguable. Going beyond the assumed arguability of the 16 proposed grounds of appeal to assess the strength of each ground of appeal individually in the context of what was a 17 day trial would have turned the extension application into a de facto appeal. Judges have rightly warned against this being permitted to occur: see [77] above. At least in the circumstances of the present case, this would be problematic and not practicable.

11. [105]

    In my view, and making the assumption that the proposed draft grounds of appeal are all arguable, the Applicant should not be granted an extension of time within which to pursue his second application for leave to appeal for the following reasons.

12. [106]

    First, the Applicant has already had what was in substance a full hearing challenging his conviction. The policy of the law is not only to prevent re-litigation of matters already litigated but also to preclude a party from arguing in a second set of proceedings between the same parties a point that was available to have been argued in earlier proceedings but was not so argued. [87] The analogy with the present case is powerful. In Dow Jones v Gutnick, [88] it was said that “[e]ffect can be given to that policy by the application of well-established principles preventing vexation by separate suits”. In this context, it is well to recall that the observation of Dawson and Gaudron JJ in Postiglione that “there is no reason in principle to prevent a person bringing a second application for leave to appeal if an earlier application has been dismissed” was prefaced and qualified by their Honours “putting aside applications which are frivolous or vexatious”: see [32] above.

13. [107]

    It may also be noted in this context that the plurality in D'Orta-Ekenaike v Victoria Legal Aid (D’Orta) [89] eschewed the drawing of any distinction in the context of their discussion of finality between civil and criminal cases, with their Honours saying that: [90]

14. [108]

    Second, a refusal to grant leave to appeal in the Court of Criminal Appeal will typically be because the Court considers the grounds of appeal sought to be raised lack sufficient merit. It would be a paradoxical and somewhat perverse outcome if, after a full hearing on the merits, a rejection of leave to appeal because of the weakness of the draft grounds of appeal resulted in the possibility of a further application for leave whereas a grant of leave to appeal in respect of more meritorious although ultimately unsuccessful proposed grounds of appeal precluded such a possibility, applying Grierson. Accepting, in view of Lowe, that a refusal of leave does not destroy the Court of Criminal Appeal’s jurisdiction, the logic of the matter nonetheless strongly suggests that cogent reasons should underwrite any exercise of discretion to extend time so as to permit a second application for leave to appeal.

15. [109]

    Third, such cogent reasons must be more than simply additional arguments having occurred to a party’s legal advisors to the effect that the decision or verdict under appeal is wrong. In Burrell v The Queen (Burrell), [92] the plurality said that:

16. [110]

    In essence, the Applicant’s multiple proposed grounds of appeal are simply allegations of further errors. Where an applicant for leave to appeal has had a full opportunity to raise such arguments as he or she may be advised to make, prima facie the interests of justice will not warrant a further opportunity being granted. The interests of justice will already have been served by the first opportunity having been taken up and the applicant’s arguments having been heard and determined, even if unsuccessfully (together with the opportunity, where available, to pursue any further avenue of appeal).

17. [111]

    Fourth, and related to this, the only explanation advanced in the present case for bringing a second application is that a different legal team, having scoured the record for a number of months, identified a range of additional grounds by reference to which to seek leave to appeal. Apart from the caution warranted in cases of so-called “armchair” appeals (see [62] above), the appointment of new lawyers to review the matter after the unsuccessful hearing of one application for leave to appeal does not, in my opinion, constitute a material change of circumstances that may otherwise warrant an extension of time to bring a second application for leave to appeal. This is perhaps especially the case where, as here, the applicant has been previously represented by experienced lawyers of the highest calibre both at trial and in the first appeal hearing. In short, the current application is nothing more than a “second go” by a different legal team. The interests of justice do not call for or require a “second go”.

18. [112]

    Fifth, in the course of oral although not written submission, Mr Reynolds suggested that the failure to raise some of the arguments now sought to be raised in the first appeal hearing was due to the incompetence of counsel. That is always a serious submission to make, especially “on the run”, as it was in the present case, not having been made in written submissions. Claims about the want of competence of counsel in the first appeal hearing as well as at the trial were resorted to when Mr Reynolds was being challenged by the Court as to why an extension of time and leave should be granted.

19. [113]

    A number of points should be made in this respect. First, just because a point was not taken in earlier proceedings does not mean that counsel who did not take the point in the earlier proceedings was incompetent in not doing so. There may be a host of forensic reasons why a point was not taken, even if it was arguable. To explore these as a matter of evidence may be quite problematic for the reasons explained by Gleeson CJ in Nudd. [93] Second, “[a]s a general rule, counsel’s decisions bind the client. If it were otherwise, the adversarial system could not function”. [94] It was for this reason that Gleeson CJ was at pains to point out in Nudd that “[i]t is the fairness of the process that is in question; not the wisdom of counsel”. [95] Thus, the focus is on whether a particular feature or features of the trial or an appeal or application for leave to appeal gave rise to a miscarriage of justice. This will generally be a matter of objective determination. This is a heavy burden. [96]

20. [114]

    It follows from this that loose assertions as to the lack of competence of counsel in not taking a particular point will, at least as a general proposition, also not warrant, or provide a basis for, the grant of an extension of time in which to make a second application for leave to appeal. If a miscarriage of justice is alleged to have occurred because of the want of competence of counsel in a particular court, that is a matter properly to be raised on appeal. Alternatively, if it is said to have occurred in the course of an application for leave to appeal or an appeal, that is a matter properly to be raised on an application for special leave to appeal to the High Court from the Court of Criminal Appeal, rather than as a basis for the grant of an extension of time to bring a further application for leave to appeal.

21. [115]

    It would be to turn the process on its head for a Court asked to grant an extension of time to bring a second application for leave to appeal to have to engage in a consideration of whether a miscarriage had occurred in earlier appeal proceedings in order to determine an extension application.

22. [116]

    Sixth, I would reject the Applicant’s submission that leave should be granted because several of the grounds of appeal disclose defects that were asserted to go to the “root of the proceedings”, and therefore gave rise to a miscarriage of justice regardless of whether or not the conduct of the Applicant’s former counsel could be characterised as incompetent: see [98] above. This submission, as I have noted, sought to apply principles developed in cases where there had been no prior application for leave to appeal, and which primarily concerned the requirement of leave pursuant to what was then r 4 of the Criminal Appeal Rules including in respect of a trial judge’s summing up to the jury: see [98]–[99] above.

23. [117]

    In any event, at an impressionistic level or taking a “rough and ready” view of the matter, I do not consider that the trial judge’s summing up produced a miscarriage of justice. It may be noted that the fact that the trial judge’s summing up in the present case was prepared after extensive consultation with senior counsel for the defence is a strong factor indicating that, in the circumstances of the trial, the summing up did in fact fairly put the defence case to the jury. As was emphasised by the Crown in its written submissions on appeal, the trial judge had circulated several drafts of a proposed summing-up, to which defence counsel had proposed written amendments. Following closing addresses, during argument about the draft summing up, defence counsel in fact advanced the position that the trial judge should not attempt to summarise the evidence or the defence address "in the context of the particular circumstances of this trial". As was put by the Crown in its written submissions on appeal:

24. [118]

    Notably, on the morning of 22 November 2019, defence counsel for Mr Gould provided to the trial judge by email a document containing a number of paragraphs summarising the defence case, to be incorporated into the summing up. Those paragraphs addressed (albeit not in great detail) the evidence that had been adduced by Mr Gould, and the fundamental contentions which underpinned the defence case. When the trial judge addressed the defence case during his summing up later that day, he repeated, essentially verbatim, what was contained in the document provided by defence counsel.

25. [119]

    While the conduct of defence counsel cannot cure a defect of the kind contemplated in Wong, experienced defence counsel’s view that a relatively sparse summary of the evidence was appropriate will plainly be relevant to the merits of the proposed grounds alleging that the summing up gave rise to practical injustice.

26. [120]

    If there were indeed defects at the trial giving rise to a miscarriage of justice, and which were not addressed by the grounds of appeal in the first application for leave to appeal, that is a matter that may be raised in an application for special leave to the High Court. As Mr Reynolds himself acknowledged in oral argument, it is permissible to raise a point on appeal to the High Court despite it not having been raised in an intermediate court of criminal appeal, although special leave will be granted only in “exceptional circumstances”. [97] In this context, it may be noted that Mr Reynolds submitted in oral argument that “exceptional circumstances” existed in this case so as to justify an extension of time: see at [97] above.

27. [121]

    Seventh, no other material change in circumstance has been identified which may warrant the exercise of discretion in favour of a grant of an extension of time within which to bring a second application for leave to appeal. Even certain interlocutory decisions or orders will not usually be permitted to be revisited or re-opened in the absence of a material change of circumstances. [98]

28. [122]

    In this context, the case is not at all analogous to Postiglione, where developments in other proceedings had implications germane to the grounds of appeal sought to be agitated in the second application which necessarily could not have been raised in the earlier application for leave to appeal. Nothing said in Postiglione suggested that there should be general encouragement for further applications for leave to appeal on grounds that were previously available to be argued but were not.

29. [123]

    Eighth, the present application does not fall within any of the recognised exceptions to Grierson. To the extent that counsel for the Applicant suggested that the way in which the first application for leave to appeal was conducted amounted to a denial of procedural fairness, that submission should be rejected. As I have indicated, I am not satisfied that there was no rational justification for the exclusion of the grounds which are now proposed from the earlier application for leave to appeal. On an impressionistic assessment of the grounds of appeal, one possible (perhaps probable) explanation was that highly experienced then senior counsel did not consider that those grounds would succeed.

30. [124]

    In any case, I am not persuaded that the exclusion of an arguable ground of appeal by counsel falls within the rubric of a denial of procedural fairness, in the sense that the concept was discussed in Saxon and Pantorno. The passage relied upon by counsel from Brown (and discussed at [101] above) does not assist in this regard. In that case, the conduct of trial counsel had the consequence that an offender who wished to give evidence on sentence was denied the opportunity to do so. Pantorno provides a more useful comparator. In that case, an issue concerning natural justice at trial was not raised on an appeal against conviction in the Full Court of the Victorian Supreme Court, notwithstanding that the issue fell within the scope of one of the grounds of appeal. The High Court allowed an appeal, but expressed the view that the appellant could have applied to the Full Court of the Supreme Court after the delivery of judgment to give further consideration to the natural justice issue. Thus, at 474, Mason CJ and Brennan J said the following:

31. [125]

    The difficulty with the Applicant’s reliance on Pantorno is that Mason CJ and Brennan J’s finding of a denial of procedural fairness in that case was expressly predicated on the fact that, in the first appeal, the Full Court had not heard argument on an issue which fell within the scope of the grounds of appeal. The same is not true in this case. Here, as the Applicant has been at pains to emphasise, the asserted denial of procedural fairness is said to arise from the failure to raise certain grounds of appeal at all. In my view, this does not amount to a denial of procedural fairness of the kind contemplated in Pantorno and Saxon.

32. [126]

    The first appeal hearing did not involve a denial of procedural fairness by the Court. The arguments that were then raised were heard and determined and the fact that other arguments were not raised did not amount to a denial of procedural fairness, on any orthodox view of that concept.

33. [127]

    Ninth, there are powerful albeit not determinative policy arguments against granting an extension of time so as to permit a second application for leave to appeal to be brought. Many of these arguments also underpin the line of authority in various other States referred to above which does not even permit a second application for leave to appeal to be made: see, for example, the observations made by members of the Queensland Court of Appeal in R v Nudd, [100] as set out at [39]–[40] above. Even so, in the New South Wales context where there is no technical jurisdictional bar, the same arguments resonate and are consistent with the strong policy of the law in favour of finality of litigation, including in criminal proceedings. I note that in a criminal context, the finality of litigation is mitigated by the statutory avenue, not pursued in the present case, to seek a review of or inquiry into a conviction or sentence pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW).

34. [128]

    As to the importance of finality, Gleeson CJ, Gummow, Hayne and Heydon JJ in D'Orta spoke in powerful terms of the importance of the principle of finality in its various manifestations: [101]

35. [129]

    The High Court returned to the importance of the principle of finality in Burrell where D’Orta was referred to with approval. [102] Burrell concerned whether the whether the Court of Criminal Appeal had power to reopen the appellant's appeals and reconsider its orders. [103] True it is that the plurality noted that “[t]he principal qualification to the general principle of finality is provided by the appellate system” [104] but that statement was not designed to suggest that, once appellate rights have been exercised in the deliberately limited time frame set out in the Criminal Appeal Act and the Criminal Appeal Rules, they may be exercised again and again. Their Honours made this plain, stating that: [105]

36. [130]

    Tenth, in their discussion of the importance of finality in litigation and the conception of “perfection of orders”, the plurality in Burrell made the important point that “the use of terminology must not be seen as giving form and procedure precedence over substance and principle”. [106] A similar point had been made by Winneke P in GAM: see [36] above.

37. [131]

    In this context, it is relevant that, had the Court of Criminal Appeal in the first appeal proceedings in the present case granted leave to appeal but dismissed the appeal (as would have been open to it), Grierson would have dictated that there could be no second application for leave to appeal. This whole second application for leave to appeal in respect of which an extension of time is sought turns on the serendipitous fact that the first appeal proceedings were disposed of in a particular way, but with no less a hearing or opportunity to make submissions than would have been provided had leave been granted, Additionally, the Court of Criminal Appeal gave full and detailed reasons for its decision not to grant leave. In this situation, an extension of time to facilitate the making of a second appeal would represent a triumph of form over substance.

38. [132]

    Eleventh, at a very impressionistic and necessarily “rough and ready” level, the proposed appeal could not be described as “highly meritorious”, to use the language of Brereton JA in Renshaw. As noted at the outset, there was no issue that the Applicant had coached Mr Borgas in relation to his evidence. The Crown pointed in its written submissions to a wealth of documentary evidence that supported the Crown’s case that the evidence that the Applicant sought to have Mr Borgas give was false to the Applicant’s knowledge, and that it was the Applicant and not Mr Borgas who was the effective controller of the various companies’ affairs.

39. [133]

    Again, at an impressionistic level, it is not my view that the Applicant lost a real chance of acquittal by reason of any of the matters sought to be raised in the draft grounds of appeal or that such a proposition was strongly arguable.

40. [134]

    Twelfth, although I have regarded them as arguable for the purposes of the extension of time application (see [104] above), it is also relevant to note that at least draft appeal grounds 1, 5 (contrary to the submission noted at [103] above), 6, 7, 8, 9, 11, 12, 13 also require leave to be raised under r 4.15.

41. [135]

    These grounds might be thought to have the double vice that, not only do they concern directions that were not sought or alternatively not cavilled with at trial by experienced trial counsel (Mr Smith) but they were matters which Mr Dhanji, at the time one of the most experienced and senior criminal appellate advocates in the State, evidently did not consider were of sufficient strength to include in the first application for leave to appeal. The judgment of experienced trial and appellate counsel, familiar with the forensic atmosphere of both trial and appeal, has often been identified as relevant in the assessment of leave applications under r 4.15 and its predecessor rule. As Gleeson CJ said in Sanderson (Court of Criminal Appeal (NSW), 18 July 1994, unrep), cited in R v Fuge: [107]

42. [136]

    Also tending against any grant of leave pursuant to r 4.15, even if I had otherwise been minded to grant an extension of time, is the fact that, where challenges to directions were made, the applicant’s submissions did not formulate the directions which the Applicant contends ought to have been made, a matter upon which Basten JA placed some importance in Greenhalgh: see [89] above.

43. [137]

    Taking all the above considerations into account, I do not consider that it is "just under the circumstances” or that the interests of justice require that an extension of time should be granted to permit a second application for leave to appeal to be brought.

Application for an adjournment of proceedings

1. [138]

   As noted earlier in these reasons, the Applicant’s written submissions did not contain an argument to the effect that counsel at the first appeal or at trial was incompetent. Rather, submissions to this effect were only developed and introduced in oral argument when senior counsel for the applicant was being pressed to explain why an extension of time and leave to appeal should be granted, in circumstances where an earlier application for leave to appeal the Applicant’s conviction had been heard but refused. This was a matter to which precious little attention had been given in the Applicant’s otherwise lengthy submissions: see [96] above.

2. [139]

   It was in that context that, on the first day of the hearing on 22 November 2022, an application was made for an adjournment of proceedings in order to allow the Applicant to put on evidence about his interactions with his previous legal representatives. This application was made after Mr Reynolds had been given an adjournment of some 45 minutes to take instructions from the Applicant.

3. [140]

   The Court rejected this application and indicated that it would give its reasons for refusing the adjournment in its ultimate reasons for judgment.

4. [141]

   The Court formed the view that the interests of justice did not warrant an exercise of the discretion to grant an adjournment, in circumstances where:

5. [142]

   For completeness, it should also be noted that the Crown’s written submissions, filed some four months before the hearing, had criticised what was described as an “implicitly raise[d]… incompetence of counsel argument” hinted at, but not expressly stated, in the Applicant’s submissions. The Crown had complained that:

6. [143]

   The Applicant did not respond by way of reply to this submission at any stage prior to the hearing of the appeal: see [20]–[21] above.

7. [144]

   In its written submissions, the Crown had also extracted a passage from the reasons of Macfarlan JA in Alkhair v R (Alkhair), [108] concerning (among other things) the use of evidence about communications between an appellant and their former legal representatives in aid of an argument on appeal alleging incompetence of trial counsel. In that passage, Macfarlan JA (Rothman and Bellew JJ agreeing) drew the following four principles from a review of relevant authorities:

8. [145]

   The relevance of this submission is that the Applicant was put on notice of the need to engage with a competence of counsel argument if it were in fact to be pursued. There was ample opportunity before the hearing for the Applicant’s legal representatives to seek leave to put on further submissions or evidence from or on behalf of the Applicant in response to the criticism made by the Crown. They did not do so.

9. [146]

   Further, the principles referred to by the Crown (as summarised in Alkhair) demonstrate that, where possible, the question of whether a miscarriage of justice has arisen from the way in which a trial was conducted will be determined by reference to the objective circumstances of the trial. Only in exceptional circumstances will the Court’s enquiry turn upon direct evidence about communications between the accused and his or her legal representatives. In this light, it may be doubted that the evidence sought to be adduced by the Applicant would have been central to the inquiry undertaken by the Court.

10. [147]

    In these circumstances, the interests of justice would plainly not have been served by granting a further adjournment at final hearing to allow further evidence to be filed about the Applicant’s communications with his former legal representatives.

11. [148]

    ROTHMAN J: I have had the advantage of reading, in draft, the reasons for judgment of the Chief Justice. I agree fully with those reasons for judgment and the basis upon which the orders, with which I also agree, should be made.

12. [149]

    I wish to add a few comments, but none of the following comments should be seen to detract either from the reasons for judgment of the Chief Justice, nor from the manner in which the application for the extension of time and for leave to appeal should be resolved. I agree that it is in the interests of justice that the application for an extension of time be refused. The following comments deal with the exercise of the discretion, assuming but not deciding that there is jurisdiction, to grant a second application for leave.

13. [150]

    This Court is currently faced with a second application for leave to appeal. In my view, the exercise of the discretion is informed by the application of the principle of finality. As such, other than in a very limited range of matters, leave to extend time to appeal ought to be refused. Those limited exceptions may arise if the first application was vitiated by fraud or a denial of procedural fairness, or where the facts and circumstances surrounding the application or an appeal have altered in a significant manner that would have meaningfully affected the initial application.

14. [151]

    In this case, the applicant relies upon the denial of procedural fairness in the first appeal hearing. I consider that there was no arguable denial of procedural fairness. Relevantly to the issue raised, the applicant needed to prove in this application that the Court failed to provide him with a reasonable opportunity to prepare and to present his case. [109] The duty of the Court to do so does not require or oblige the Court to ensure that the applicant took the best advantage of the opportunity to which he was entitled (and which he was given). [110] Further, there is no basis for suggesting that the decisions of counsel at the trial and on the first application for leave to appeal were other than based on a proper forensic judgment in the best interests of the applicant. On this basis, there has been no relevant denial of procedural fairness in the first application for leave to appeal.

15. [152]

    Secondly, there are two alternatives that were open to the Court to dispose of the first application for leave. Either was theoretically available. As pointed out by Bell CJ, the Court, having dealt with the merits of the appeal agitated, could have granted leave to appeal and dismissed the appeal or, as it did, refuse the grant of leave. In terms of the options available to the applicant thereafter, assuming that the applicant did not seek leave to appeal to the High Court of Australia, an application could have been made to re-open the earlier application for leave to appeal, or, as occurred, to make a fresh application for leave to appeal out of time.

16. [153]

    After orders have been entered, the basis upon which a re-opening of the proceedings can occur are extremely limited. As the High Court has said:

17. [154]

    The line of authority expressed by the High Court and recited above relies, at least in part, upon the principle of finality in litigation. Parties are not free to re-agitate issues or proceedings that have been determined by a court.

18. [155]

    In interlocutory civil proceedings, slightly different principles apply. The view that I have expressed above as to the manner in which this Court should exercise its jurisdiction in a second application adapts the approach otherwise applicable to the re-agitation of interlocutory orders.

19. [156]

    It should be noted that orders issued by a court are issued by the whole court, notwithstanding that they may be issued by a bench consisting of different judges. The jurisdiction of a superior court of record is exercised en banc under the common law, even though statutes now operate to permit the jurisdiction to be exercised by a single judge or, on appeal, two or more judges. Judges, in issuing orders, exercise the jurisdiction of the court as a whole. [112]

20. [157]

    As a consequence, when judgment has issued, whether interlocutory or final, the court as a whole has determined the issues between the parties. In the case of an order which is not final and does not deal finally with the rights inter se of the parties, the principle of finality still has work to do. Nevertheless, because the court is not dealing with the determination of the rights finally, such orders may be amended by the court, in certain circumstances.

21. [158]

    The basis upon which non-final orders may be amended does not include a re-agitation of the same issues already determined by the court, in the absence of different or new circumstances. Further, it does not include the agitation of different issues that were available to the moving party but not advanced at the time of the earlier proceedings.

22. [159]

    In civil interlocutory proceedings, the substantive proceedings remain on foot and continue. In such circumstances, a court has a right to amend or vary orders. This is permitted when new facts are brought before the court, or where it is shown that the original orders may create an unnecessary inconvenience or other disadvantage to one or more of the parties. Indeed, in such circumstances, the court may not only have the jurisdiction to amend or vary orders made but may have a duty so to do. [113]

23. [160]

    With this application, there are no substantive proceedings remaining on foot. The first hearing dealt “finally” with the application for leave to appeal, which is the gateway to the substantive hearing of an appeal.

24. [161]

    In my view, if there be a jurisdiction to hear again an application for leave to appeal, which is accepted but not decided for the purposes of these reasons, leave should be refused except in exceptional circumstances, such as where the facts have changed (either the law or the context in which the trial or first hearing was conducted or judgment delivered) or other such like circumstances. The Court should not allow the re-agitation of applications for leave to appeal where it would amount to a re-hearing of the original application including advancing grounds for the first time which were open to be advanced at the time of the first application.

25. [162]

    If, for example, a second application arises as a result of an altered parity between co-offenders, then the circumstances have changed and the second application is not a re-agitation of the first appeal. Postiglione, [114] was such an appeal and dealt with a situation in which the circumstances or facts had changed. In those circumstances there may be a duty to deal with a consequential second application. None of the foregoing deals with the situation of a true miscarriage of justice arising from the incompetence of counsel on an earlier application for leave, which would or may involve a denial of natural justice and which would result in the theoretical applicant losing a real chance of acquittal.

26. [163]

    Taking the same approach as the learned Chief Justice, I too consider there has been no loss of a real chance of acquittal, and for the reasons given by the Chief Justice, agree with the orders proposed by him.

27. [164]

    GARLING J: I agree with the orders proposed by the Chief Justice, and with his thorough and comprehensive reasons. There is nothing which I can usefully add.