BRANDON JOHN VERBAN v THE KING [2025] SASCA 14

Applicant: BRANDON JOHN VERBAN Counsel: MR S HENCHLIFFE KC - Solicitor: TIM CLARKE & CO LAWYERS Respondent: THE KING Counsel: MR W SCOBIE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 03/02/2025 File No/s: SCCRM-23-029456 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. VERBAN v THE KING [2025] SASCA 14 Judgment of the Honourable Acting Chief Justice Livesey 13 February 2025 CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - ABANDONMENT OF APPEAL CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - NOTICES OF APPEAL - GENERALLY Application for leave to withdraw the applicant’s notice of discontinuance of appeal against conviction under r 201.6(3) of the Joint Criminal Rules 2022 (SA) and leave to amend the grounds of appeal. The Director of Public Prosecutions (SA) consented to orders granting leave to withdraw the notice of discontinuance and amend the grounds of appeal. The applicant contended that he did not receive proper legal advice about discontinuing his appeal and, consequently, he did not make a deliberate or informed decision to abandon his appeal against conviction. Held, granting leave to withdraw the notice of discontinuance and amend the grounds of appeal: 1. The Court has a broad discretionary power to grant leave to withdraw a notice of discontinuance. Relevant considerations in the exercise of this discretionary power include the applicant’s reasons for discontinuing and then seeking to reinstate the appeal, the length of time involved, any prejudice arising from dismissal or reinstatement, the merits of the appeal, and the public interest in the finality of litigation. 2. The attitude of the Director to an application to withdraw a notice of discontinuance of appeal, whilst important, does not relieve the Court of the need to determine for itself whether it should favourably exercise the discretionary power conferred. 3. The applicant established that the filing of the notice of discontinuance was not the result of a deliberate and informed decision to bring his right to appeal against conviction to an end. A finding that the applicant’s notice of discontinuance was not the result of a deliberate and informed decision is important but not necessarily determinative. -- 1 of 7 -- 4. This is a proper case in which to grant the applicant leave to withdraw the notice of discontinuance given the uncontested evidence that the applicant's notice of discontinuance was not the result of a deliberate and informed decision, the proposed appeal is not without merit, reinstatement will not cause prejudice, and the proposed new appeal is realistically the applicant’s first opportunity to pursue his right to appeal. Criminal Appeal Act 2004 (WA) s 40; Criminal Procedure Act 1921 (SA) ss 157, 158; Joint Criminal Rules 2022 (SA) rr 192.4, 201.3, 201.6, referred to. Ching v The King [2025] WASCA 2; Ryan v The King [2024] SASCA 94, discussed. Buckmaster v The King [2022] SASCA 101; M v The Queen (1994) 181 CLR 487; R v Brain (1999) 74 SASR 92; R v J, SM [2015] SASCFC 185; R v McRae [2013] SASCFC 89; R v Moore [1957] 1 WLR 841; R v Preston (2004) 145 A Crim R 211, considered. -- 2 of 7 -- VERBAN v THE KING [2025] SASCA 14 Court of Appeal – Criminal LIVESEY ACJ: Introduction 1 Mr Verban, the applicant, seeks leave to withdraw his notice of discontinuance of a conviction appeal. He also seeks leave to amend in terms of his proposed new grounds of appeal.1 2 The Director of Public Prosecutions (SA) (the Director) consents to orders granting the applicant leave to withdraw his notice of discontinuance and leave to amend. 3 Pursuant to r 192.4(1) of the Joint Criminal Rules 2022 (SA) (the Joint Criminal Rules), a single judge may make interlocutory orders, and other orders ancillary to the hearing and determination of the appellate proceeding, when the jurisdiction to hear and determine that appellate proceeding is vested in, or to be exercised by, the Court of Appeal. 4 For the reasons that follow, leave should be granted. Relevant legal principles 5 Under r 201.6(3) of the Joint Criminal Rules, a notice of discontinuance may be withdrawn with the leave of the Court. In Ryan v The King, the considerations relevant to the exercise of this power were summarised:2 Once an appeal has been resolved by discontinuance and dismissal, that must ordinarily be regarded as final. It is important to the orderly administration of justice that controversies, once quelled, are not reagitated without good reason. The applicant who seeks to withdraw a notice of discontinuance must persuade the Court that the applicant's circumstances are sufficiently exceptional to warrant the exercise of the power conferred by r 201.6(3) of the Joint Criminal Rules 2022 (SA). Leave to withdraw a notice of discontinuance or reinstate an appeal which has not been determined on its merits should not usually be given where the appellant made a deliberate and informed decision to abandon the appeal.3 That is because a decision of that kind 1 Joint Criminal Rules 2022 (SA), r 201.3: “A party may amend an appellate document (including to introduce an additional party into an appellate proceeding) with leave of the Court”. 2 Ryan v The King [2024] SASCA 94, [9]-[11] (Livesey ACJ and David JA). See also R v Brain (1999) 74 SASR 92, 100-103 (Doyle CJ, with whom Bleby and Wicks JJ agreed) and R v McRae [2013] SASCFC 89, [23]-[43] (Peek J, with whom Stanley and Nicholson JJ agreed). In the case of the withdrawal of a plea of guilty, similar considerations apply, see Buckmaster v The King [2022] SASCA 101, [25]-[26] (Livesey P and David JA). 3 R v Preston (2004) 145 A Crim R 211, [12] (Duggan J, with whom Bleby and Sulan JJ agreed), referring to R v Moore [1957] 1 WLR 841, 842. -- 3 of 7 -- [2025] SASCA 14 Livesey ACJ 2 normally represents recognition that the appeal lacked merit or there were sound forensic or other reasons personal to the applicant which motivated the abandonment. Accordingly, on an application to withdraw a notice of discontinuance, it will usually be important for the applicant to demonstrate that no deliberate and informed decision was made to abandon the appeal. An informed decision is usually one made with the benefit of sound legal advice. That said, the applicant’s reasons for discontinuing and then wanting to reinstate the appeal, the length of time involved, any prejudice arising from dismissal or reinstatement, as well as whether the appeal has any merit, may all be relevant considerations.4 Finally, the public interest in the finality of litigation remains an important, overarching consideration. 6 Recently, in Ching v The King, the Western Australian Court of Appeal expressed a somewhat similar view, though the Court described a two-tiered approach, depending on whether the notice of withdrawal is a “nullity” or whether leave is given in the exercise of the discretionary power conferred by s 40(1) of the Criminal Appeals Act 2004 (WA):5 … a notice of discontinuance will be a nullity if it was not the result of a deliberate and informed decision by the appellant. The onus is on the appellant to establish that the notice was not the result of a deliberate and informed decision on his or her part. If that is established, the notice should be set aside. … The court also has a discretion to set aside a notice of discontinuance that is not a nullity. In exercising that discretion, the merits of the proposed grounds of appeal are a relevant consideration. If an application to withdraw a notice of discontinuance is granted on the ground that the notice is a nullity, there is no need to consider the discretionary power to permit the withdrawal of a notice. Nor, for that reason, is there any need to consider the merits of the proposed grounds of appeal. The proper course is for those grounds to be considered in the ordinary course at a hearing of the application for leave to appeal or the appeal. 7 As will be seen, in this case the filing of the notice of discontinuance was not the result of the applicant’s deliberate and informed decision. 8 In Western Australia, that finding would be sufficient to permit the notice to be disregarded as a nullity. In South Australia, whether under the rules or the Court’s inherent powers, a finding that the filing of the notice of discontinuance was not the result of the applicant’s deliberate and informed decision is important but not necessarily determinative of the exercise of the broad discretionary power conferred on the Court to grant leave to withdraw a notice of discontinuance. 9 The breadth of the Court’s discretion is demonstrated by the decision in R v McRae, where the Director conceded that the appellant had not made a deliberate and informed decision, and submitted that the appeal should be 4 R v J, SM [2015] SASCFC 185, [6] (Sulan, Peek and Nicholson JJ). 5 Ching v The King [2025] WASCA 2, [9]-[11] (Buss P, Mazza and Hall JJA). -- 4 of 7 -- [2025] SASCA 14 Livesey ACJ 3 considered on its merits. Nonetheless, the Court refused permission to withdraw because the proposed appeal was without merit.6 Relevant circumstances 10 Following a trial by jury, on 25 July 2023 the applicant was convicted of two counts of drug trafficking and one count of money laundering. A notice of appeal against conviction was filed on behalf of the applicant on 10 August 2023. The sole ground was that the verdicts for each count were “unsafe and unsatisfactory”.7 11 A notice of discontinuance of that appeal was filed on 13 September 2023. The notice of discontinuance was signed by Carter and Co Lawyers Pty Ltd. Under the rules, the notice of discontinuance took effect as a dismissal of the conviction appeal.8 12 The first attempt to file a further appeal was made on 23 July 2024, and the application to set aside was filed on 31 January 2025. Whilst a period in excess of a year is involved, it is not suggested that the Director has been prejudiced and the explanation for the delay seems clear enough: the applicant required new legal representation. 13 The applicant is now represented by senior counsel. He seeks leave to amend and file the following appeal grounds: 1. The cross-examination of the appellant by the prosecutor breached the prohibition in s 18(1)(d) of the Evidence Act, 1929, because the appellant was asked questions tending to show he was of bad character, resulting in a miscarriage of justice. Particulars 1.1 The prosecutor asked the appellant, “Do you lie frequently about things?” (T313) 1.2 When the appellant answered, “No”, the prosecutor asked him, “Is that [a lie admitted by the appellant] just one of the rare exceptions where you have lied?” (T313) 1.3 The prosecutor asked the appellant, “What about this: have you ever sold even a tinsy bit of your drugs?” (T321) 1.4 When the appellant answered, “No”, the prosecutor asked him, “Not once?” The appellant answered “No” and said he had previously shared his drugs with friends. (T321) This evidence of the appellant’s commission of uncharged 6 R v McRae [2013] SASCFC 89, [40], [43] and [53] (Peek J, with whom Stanley and Nicholson JJ agreed). In that case, Peek J reviewed the approach taken in other jurisdictions. 7 This way of articulating the appeal ground is drawn from the English criminal appeal provision and misstates the terms of the first limb of the common form criminal appeal provision, s 158(1)(a) of the Criminal Procedure Act 1921 (SA): “the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence”. See M v The Queen (1994) 181 CLR 487, 491-494 (Mason CJ, Deane, Dawson and Toohey JJ). 8 Joint Criminal Rules 2022 (SA), r 201.6(2): “Upon a notice of discontinuance being filed, the appellate proceeding will be deemed to have been dismissed by the Court”. -- 5 of 7 -- [2025] SASCA 14 Livesey ACJ 4 offences of supplying a controlled drug would not have been given without the impermissible cross-examination. 1.5 The prosecutor asked the appellant, “Never ever in that period [the period of 8 years over which the appellant had been using methylamphetamine] not once sold a tinsy bit?” 2. A miscarriage of justice resulted from the learned trial Judge’s failure to direct the jury that it could not use the evidence that the appellant had shared his drugs with friends for any purpose and that it should disregard that evidence. 3. The learned trial Judge’s directions (at SU34-35) about the circumstances in which the cash found at the appellant’s home was tainted property were wrong at law, or alternatively, were inadequate and resulted in a miscarriage of justice. Particulars 3.1 The Judge wrongly directed the jury that the cash was tainted property if , “… it was obtained as a result of the use of money from selling drugs being gambled.” 3.2 However, to be “tainted property”, the cash had to be obtained by the appellant cashing in gambling chips he had previously purchased using cash obtained from selling drugs. The cash was not “tainted property” if it had been obtained by the appellant cashing in gambling chips he had won while gambling (even if he had used cash from drug sales to buy the gambling chips used to place the winning bets), because his winning bets were not “proceeds” of cash he obtained from selling drugs. 4. The learned trial Judge’s directions on possession (at SU32) involved a wrong decision on a question of law, or alternatively, resulted in a miscarriage of justice. Particulars 4.1 The direction that possession, “is merely a right to exercise control over something” was incorrect. 4.2 The direction that, “The prosecution must prove beyond a reasonable doubt that he was in possession of them or intended to exercise control over them” was incorrect and/or was confusing. 4.3 The totality of the directions on possession failed to adequately direct the jury about the relevant concepts and how they applied to the case for Count 3. 14 The Director accepted that, in so far as permission to appeal was required, the question of permission should be referred for argument as on appeal. It is clear that the proposed appeal is not without merit. That is an important consideration. 15 The applicant filed an affidavit addressing the legal advice he received at the time he gave instructions to discontinue his appeal. There is no dispute about that advice and the applicant was not required for cross-examination. The affidavit demonstrates that the applicant was told that, absent funding for his appeal, he had no choice but to discontinue it. That advice was neither accurate nor complete. -- 6 of 7 -- [2025] SASCA 14 Livesey ACJ 5 Significantly, the applicant was not warned, and did not understand, that the discontinuance would take effect as a dismissal and that it may also be taken to represent his deliberate decision not to pursue his appeal rights.9 16 The applicant has established that the filing of the notice of discontinuance was not the result of a deliberate and informed decision to bring his right to appeal against conviction to an end. Determination of the application 17 Given the uncontested evidence of the applicant that he was not given proper legal advice about the consequences of discontinuing his appeal, and as the proposed appeal is not without merit and reinstatement will not cause prejudice, the Director’s attitude to this application is both understandable and appropriate. 18 Whilst the attitude of the Director to an application such as this is important, it does not relieve the Court of the need to determine for itself whether it should favourably exercise the discretionary power conferred on the Court. 19 Despite the public interest in the finality of litigation, this is a proper case in which to grant the applicant leave to set aside the notice of discontinuance. Apart from the considerations already mentioned, the proposed new appeal is realistically the applicant’s first opportunity to pursue his right to appeal, or seek permission to appeal, his convictions under ss 157(1)(a) and 158(1)(a) of the Criminal Procedure Act 1921 (SA). Conclusion 20 The applicant will be given leave to withdraw the notice of discontinuance. It is also appropriate to grant the applicant leave to amend his grounds of appeal. 21 The appeal will be heard by the Court of Appeal at 10.15 am on Thursday, 14 August 2025, with half a day set aside. 9 FDN 11, [21]-[22]. -- 7 of 7 --