Re Donald Edgar Hoar v R [1982] FCA 26; (1982) 56 FLR 459 (12 March 1982)

FEDERAL COURT OF AUSTRALIA

Re: DONALD EDGAR HOAR
And: THE QUEEN [1982] FCA 26; (1982) 56 FLR 459
No. NTG5 of 1982
Practice - Jurisdiction

COURT

IN THE FEDERAL COURT OF AUSTRALIA
N.T. DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.(1)

CATCHWORDS

Practice - application to extend time for filing notice of appeal against convictions - application based on fresh evidence - whether jurisdiction exercisable by single judge of Federal Court or Supreme Court of Northern Territory.

Federal Court of Australia Act (1976) (Cth.) s.25(1) and (2)

Federal Court Rules Order 3 Rule 3, Order 52 Rule 15(1) and (2)

Rules of the Supreme Court of Northern Territory Order 42 Rule 3

High Court Rules Order 70 Rule 6

Practice - Criminal law - Appeal - Application to appeal out of time - Time for filing notice of appeal long expired - Fresh evidence - Jurisdiction - Whether single judge of Federal Court has power to extend time for filing appeal - Whether judge of Supreme Court has such power - Federal Court Rules, O. 3, r. 3 (1); O. 52, r. 15 - Federal Court of Australia Act 1976 (Cth), s. 25 (1), (2) - Rules of the Supreme Court of the Northern Territory of Australia, O. 42, r. 3 - High Court Rules, O. 70, r. 6.

Jurisdiction - Criminal law - Appeal - Application to appeal out of time - Fresh evidence - Whether single judge of Federal Court or Supreme Court has power to extend time for filing appeal - Federal Court Rules, O. 3, r. 3 (1); O. 52, r. 15 - Federal Court of Australia Act 1976 (Cth), s. 25 (1), (2) - Rules of the Supreme Court of the Northern Territory of Australia, O. 42, r. 3 - High Court Rules, O. 70, r. 6. The applicant was convicted on a number of charges and sentenced to imprisonment. Some seventeen months later he applied to a single judge of the Federal Court of Australia for leave to file a notice of appeal against his convictions in the Supreme Court of the Northern Territory on the ground of fresh evidence. The applicant made a similar application also to a judge of the Supreme Court of the Northern Territory. The question was whether either of those courts had the power to grant an extension of time within which to file a notice of appeal.

Held: The application should be refused because: (1) The words "the Court" in O. 52 (2) of the Federal Court Rules means the court exercising appellate jurisdiction, that is to say, the Full Court of the Federal Court of Australia. Therefore an application relying on that rule must be heard by a Full Court.

(2) The phrase "fixed for that purpose" in O. 52, r. 15 (1)(a)(iii) of the Federal Court Rules was not authority in the present case for a judge of the Supreme Court of the Northern Territory to fix a notional date for the applicant's convictions in order to permit a time that has already expired to run again.

Henderson v. Federal Commissioner of Taxation (1970), 119 CLR 612, referred to.

HEARING

Darwin, 1982, March 11-12. 12:3:1982
MOTION.

Motion seeking leave to file a notice of appeal against convictions out of time. The following decision deals solely with the question of jurisdiction.

M. J. Neil and P. Loftus, for the applicant.

B. Martin and P. J. B. Tiffin, for the respondent.

Solicitors for the applicant: Loftus & Cameron.

Solicitor for the respondent: G. R. Nicholson, Northern Territory Crown Solicitor.
E. F. FROHLICH

DECISION

This is a motion that the applicant be granted leave to file a notice of appeal against his convictions in the Supreme Court of the Northern Territory on 17 October 1980. The convictions were on charges of conspiracy, assaulting a police officer and wilfully obstructing a police officer.

The time for filing a notice of appeal, prescribed by 0.52R.15 of the Federal Court Rules, has long expired. Within time the Crown appealed to the Federal Court against the sentence imposed for conspiracy and the applicant himself appealed against an order for the forfeiture of items of plant. The Federal Court upheld the Crown's appeal, substituting a sentence of imprisonment for 14 months, with a non-parole period of 6 months. The Court also upheld the appeal against forfeiture (R. v. Hoar (1981) 34 ALR 357).

The Crown's appeal to the High Court against a decision that there was no power to order forfeiture was dismissed. An application for special leave to appeal against the sentence of imprisonment imposed by the Federal Court was also dismissed (R. v. Hoar [1931] HCA 30; (1981) 37 ALR 357).

It was not suggested by the Crown that any of the steps taken so far by the applicant stands in the way of an appeal against conviction if he is granted an extension of time in which to appeal.

The application is based upon what may loosely be called fresh evidence, in particular information recently furnished by a Crown witness at the applicant's trial. The gist of that information is that evidence given by the witness was in material respects false, that the witness was persuaded to give that evidence by police officers and fishing inspectors and that those officers and inspectors gave evidence that was false in material respects.

At the threshold a question arose whether, sitting as a single judge of the Federal Court, I have power to extend the time for filing notice of appeal. The matter was argued this morning. It is a motion of some urgency as the applicant is in prison and becomes eligible for parole on 15 May. Whatever the constraints of time, I propose to give my decision now.

Since the language of O.52 R.15 is crucial to the answer to the question, I set out the rule in full.
"15.(1) The notice of appeal shall be filed and served -

(a) within 21 days after -

(i) the date when the judgment appealed from was pronounced;

(ii) the date when leave to appeal was granted; or

(iii) any later date fixed for that purpose by the court appealed from; or

(b) within such further time as is allowed by the Court upon application made by motion upon notice issued within the period of 21 days referred to in the last preceding paragraph.

(2) Notwithstanding anything in the preceding sub-rule, the Court for special reasons may at any time give leave to file and serve a notice of appeal."

Clearly sub-rule (1)(b) has no application. Whether sub-rule (1)(a) is available to the applicant is a matter to be considered later. The applicant invokes sub-rule (2) which he says contains a power exercisable by a single judge as well as by a Full Court.

Order 52 is concerned with the appellate jurisdiction of the court and in that order "the Court" is the Court exercising its appellate jurisdiction (O.52 R.1). By reason of s.25(1) of the Federal Court of Australia Act 1976, that jurisdiction is, "subject to this section and to the provisions of any other Act", to be exercised by a Full Court. Section 25(2) is by way of exception for it permits applications for leave or special leave to be heard "by a single Judge or by a Full Court". I do not think that s.25(2) may be construed so as to operate in the present case. True it is that leave is required, but it is leave to file a notice of appeal out of time. It is not an application for leave or special leave to appeal in the terms of s.25(2). That sub-section is concerned with situations in which no appeal may be brought to the Federal Court except by leave or special leave.

In my view the reference in O.52 R.15(2) to "the Court" is a reference to a Full Court. The distinction is reinforced by the recent amendment to O.52 R.35 to permit "The Court or a Judge" to admit an appellant to bail.

Order 3 Rule 3(1) empowers the Court or a Judge to "extend or abridge any time fixed by the Rules or by any judgment or order". The generality of this language must, I think, yield to the specific terms of O.52 R.15(2) where only "the Court" may at any time give leave to file and serve a notice of appeal and then only "for special reasons". It may be, as counsel for the Crown suggested, that O.3 R.3 permits the filing and service of a notice of appeal out of time by consent. I do not have to decide that. But whether O.52 be regarded as a "code" of procedures relating to appeals or R.15 seen as a provision to which, by reason of its specific terms, O.3 R.3(1) has no application, the result is the same. In my view O.3 does not assist the applicant.

It follows then that if the applicant wishes to rely upon O.52 R.15(2), his application must be heard by a Full Court.

This morning I gave leave to the applicant to file a motion in similar terms to that already lodged but as an application in the Supreme Court of the Northern Territory to a Judge of that Court. Counsel for the applicant took that step in order to submit that if a single Judge of the Federal Court lacked power, a single Judge of the Supreme Court could accede to the application by reason of O.52 R.15(1)(a)(iii). The Crown argued that this provision was not available in the circumstances, but "with less confidence" then when making its submissions in regard to the powers of a single Judge of the Federal Court.

Order 52 Rule 15 is couched in language comparable to that of O.70 R.6 of the High Court Rules. I was not referred to any relevant authority and in the time available I have not been able to find any. But it seems to me that the key to R.15(1)(a)(iii) is the expression "fixed for that purpose". Although the 21 days in which a notice of appeal must be filed and served ordinarily runs from the date when the judgment appealed from was pronounced or when leave to appeal was granted, the court pronouncing judgment or granting leave to appeal may think it appropriate to fix as the date of judgment or grant of leave some later date. A not un-common situation is one in which a court has delivered reasons of some length and complexity and wishes the parties to have a reasonable time in which to assess their positions. See for instance Henderson v. Federal Commissioner of Taxation (1968-1970) 119 C.R 612 per Windeyer J. at pp.641-642).

Whether in those circumstances the date must be fixed by the court as originally constituted and at the time judgment was pronounced or leave granted is a matter I do not have to decide. I was not referred to any provision bearing on the recording of convictions. Order 42 Rule 3 of the Rules of the Supreme Court of the Northern Territory is relevant to civil proceedings. However widely R.15(1)(a)(iii) is read, I am unable to regard it as authority for a judge, in the situation before me today, to fix a notional date for the applicant's convictions in order to permit a time that has already expired to run again.

The absence of a power in a single Judge of the Federal Court to extend the time for filing notice of appeal may well prove inconvenient and warrant some consideration. But as the rule stands I have no power as a Judge of the Federal Court to entertain the application made in that Court. And, for the reasons already given, I cannot deal with the application in the Supreme Court.

I direct that a copy of these reasons be placed on the Supreme Court file and stand as my reasons in that application.