Riddell v R [2016] NSWCCA 70

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Riddell v R [2016] NSWCCA 70 Hearing dates: 23 October 2015 Date of orders: 23 October 2015 Decision date: 02 May 2016 Before: Adams J at [1] Davies J at [1] Beech-Jones J at [1] Decision: Adjournment application refused Catchwords: CRIMINAL LAW – appeal – conspiracy to import commercial quantity of MDMA – appeal against both conviction and sentence – application by appellant to adjourn appeal – unrepresented appellant in custody – need for further time for preparation of submissions – appeal brought years out of time – judicial case management of appeal – refusal of adjournment Legislation Cited: Customs Act 1901 (Cth) Criminal Code Act 1995 (Cth) Category: Procedural and other rulings Parties: Andrew Riddell (Appellant) Crown Representation: Counsel: In person (Appellant) M England & A Rose (Crown) C Waterstreet (amicus curiae)

Solicitors: Unrepresented (Appellant) Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2004/13814 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 17 August 2007 Before: Hosking DCJ File Number(s): 2004/13814

Judgment OF THE COURT

Conviction, sentence and appeal 1. The Appellant was charged with conspiring to import into Australia a commercial quantity of MDMA in contravention of s 233B(1)(b) of the Customs Act 1901 (Cth) and s 11.5(1) of the Criminal Code Act 1995 (Cth). The indictment charged a conspiracy between 1 May 2002 and 26 April 2003. The pure weight of MDMA was 136.9 kilograms, over 250 times the commercial quantity. 2. The Appellant stood trial before his Honour Judge Hosking and a jury. The first trial that took place between 4 July 2005 and 29 September 2005 resulted in the jury being unable to agree on a verdict. 3. The retrial commenced on 14 September 2006, also before Hosking DCJ and a jury, and concluded on 31 January 2007. A jury, at that stage reduced to 11 because of the discharge of a juror, returned a verdict of guilty on 31 January 2007. Hosking DCJ sentenced the Appellant to life imprisonment with a non-parole period of 19 years to commence 26 April 2003 (the date of his arrest) and expiring 25 April 2022. 4. The Appellant filed a Notice of Intention to Appeal in respect of the conviction and the sentence on 20 August 2007. He subsequently filed four Notices of Application for Extension of Time to Appeal with the latest being on 22 February 2009 which extended the Notice of Intention to Appeal until 22 April 2009. On 7 November 2012 the Appellant filed a Notice of Appeal in respect of conviction and sentence and a "Notice of application for extension of period within which notice of intention to appeal to apply for leave has effect" and Grounds of Appeal. By the time the Appellant filed the Notice of Appeal it was a little over three years and six months out of time. 5. The Appellant, although represented at the trials, has acted for himself in respect of the appeal. 6. This appeal was listed for hearing on 23 October 2015. On that day and in the circumstances described in this judgment the Applicant sought an adjournment of his appeal. After substantial argument the Court refused the application. The presiding judge, Adams J, stated that reasons would be provided in due course. After the refusal of the adjournment on 23 October 2015 argument on the appeal proceeded. After the Applicant was granted leave to rely on very lengthy written submissions, the appeal was adjourned part heard until 1 April 2016 to enable the Crown to file submissions in response. On the resumed hearing of the appeal on 1 April 2016 the Applicant ultimately withdrew his appeal against conviction and notice of appeal against sentence. This judgment constitutes the Court's reasons for the refusal of the adjournment on 23 October 2015. 7. The document headed "Grounds of Appeal" does not clearly articulate grounds of appeal. The document is discursive and repetitive. It contains 15 paragraphs which have been distilled by the Crown into 11 grounds as follows: 1. Judicial bias (both actual and apprehended): specifically, that the trial judge's conduct of the retrial was not impartial due to knowledge his Honour gained from the e first trial ('the bias ground"). 2. The Crown Prosecutor failed to discharge his duty, causing the trial to miscarry ('the conduct of the prosecutor ground"). 3. The trial miscarried because the trial judge erroneously admitted evidence from outside the indictment period (fraudulent, fabricated and inadmissible opinion/perjury, which was calculated to mislead) and did so without notice ('the indictment period ground"). 4. The trial miscarried because the trial judge admitted voice identification evidence in relation to telephone intercept material and visual identification evidence in relation to Francois into Evidence ('the identification evidence ground"). 5. The trial miscarried because of the non-disclosure of information and documents required to be disclosed' pursuant to the rules of discovery, interrogatories and subpoenas, and related issues ('the non-disclosure ground"). 6. The trial miscarried in relation to the evidence of the witness Small because the trial judge: a) granted leave to the Crown to move the evidence of Small (a Crown witness favourable to Riddell) from the end of the trial to the start; b) granted leave to the Crown to cross-examine Small; c) 'despatched' (over objection) a s.165 warning in relation to Small's evidence; and d) admitted into evidence (over objection) a misleading summary of the Crown case, 'speciously employing Small's dislocation as the precondition'; ("the evidence of Small ground") 7. The trial miscarried because the trial judge: a) failed to discharge the jury after a 'deliberate, considered, carefully weighed, and baseless outburst by the trial judge' designed to mislead the jury and give rise to hostility in the court; b) dismissed a juror after the outburst; and c) failed to discharge the remaining jurors after the single juror was dismissed; ("the discharge application ground"). 8. To the extent not otherwise addressed, the trial miscarried because of numerous evidentiary rulings, discretions and directions, including: a) admission into Evidence of various documents; b) admission into evidence of TI and LD material; c) rulings on the ambit of cross-examination; d) rulings on recall of witnesses; and e) directions to jury; ("the rulings, discretions and directions ground"). 9. The trial miscarried because the trial judge delivered a 'wholly irregular, unbalanced, unfair, misleading, and prolix, summing up' ('the summing up ground): 10. The trial judge's sentencing discretion miscarried ("the sentence ground") 11. The conviction was unsafe, unjust and unreasonable because of: a) the errors and aggregation of errors in other grounds; and b) the nature, quality and sufficiency of the evidence. 1. We agree that the Crown's distillation correctly identifies the matters raised in the document headed "Grounds of Appeal".