Coulter v The Queen

The applicant now seeks special leave to appeal to this Court. It may be said at once that there is no merit in the argument that, in order to establish an offence under s. 40 of the Act, the Crown must prove a specific intent to cause actual bodily harm. The decision in Percali is correct. The view taken by Archbold, Pleading, Evidence and Practice in Criminal Cases, 42nd ed. (1985), s 20-117, as to the meaning of s. 47 of the Offences Against the Person Act 1861 U.K. - the statutory predecessor of s. 40 - accords with Percali . Special leave to appeal on that ground should be refused.

However, the application for special leave also invites attention to the procedures governing the hearing of applications for leave to appeal against a conviction. It is necessary to set out the relevant statutory provisions. By s. 367 of the Act the powers of the Full Court to give leave to appeal may be exercised by any judge of the Supreme Court -

in the same manner as they may be exercised by the Full Court, and subject to the same provisions, but, if the judge refuses an application on the part of the appellant to exercise any such power in his favour, the appellant shall be entitled to have the application determined by the Full Court.

Rule 25 of the Criminal Appeal Rules prescribes the procedure to be followed when an application for leave to appeal has been dealt with by a single judge. So far as material, the rule reads as follows:

(1) Notice of application for leave to appeal shall be deemed to be [an application] to a single Judge of the Supreme Court

(2) The Registrar, when any application mentioned in this Rule has been dealt with by such Judge, shall notify to the appellant the decision (Form No. 13). In the event of such Judge refusing all or any of such applications the Registrar, on notifying such refusal to the appellant, shall forward to him form No. 14 in the Schedule hereto, which form the appellant is hereby required to fill up and forthwith return to the Registrar if the appellant desires to have his said application or applications determined by the Full Court as duly constituted for the hearing of appeals under the Act.

(3) If the appellant does not desire to have his said application or applications determined by the Full Court or does not return within five days to the Registrar form No. 14, duly filled up by him, the refusal of his application or applications by such Judge shall be final.

(4) If the appellant desires that his said application or applications shall be determined by the Full Court, he may at the time of returning to the Registrar form No. 14 duly filled up, lodge with the Registrar a summary of argument complying with the requirements of this rule. The summary of argument shall consist of:

(ii) a concise statement setting out clearly in what respect the conviction or sentence sought to be appealed from is alleged to be erroneous. Where the error alleged is in respect of or involves the admission or rejection of evidence or the misapprehension or misapplication of evidence by the Court or tribunal appealed from, there shall be given in addition to the grounds of such alleged error the page references to the transcript of evidence,

(iii) a concise statement of the points of law or fact to be argued with reference to all relevant decided cases statutes or subordinate legislation appended.

(5) If the appellant desires that his said application or applications shall be determined by the Full Court, such application or applications shall be considered by the Full Court privately and the Full Court shall consider any summary of argument lodged by the appellant.

(6) After consideration in private of any such application or applications the Full Court may without hearing oral argument make all or any of the following orders in relation to each application:

(ii) an order that the application be listed for oral argument either ex parte or on notice,

(iii) any other order or direction which may seem proper to the Full Court in the circumstances.

Counsel for the applicant advanced two submissions with respect to this rule.

First, it was said that the procedure whereby the Full Court determines the matter in private without oral argument denies natural justice to an applicant. But the procedure adopted by the Full Court is that required by sub-r. (5) and authorized by sub-r. (6) of r. 25 and, if those provisions be valid, it is impossible to argue that some other procedure ought to have been followed. It is of the essence of rules relating to natural justice that the whole of the circumstances in the field of inquiry are of importance in determining fairness of procedure and "[t]he nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances": Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [2] . The jurisdiction which the Court exercises in determining an application for leave is not a proceeding in the ordinary course of litigation: Collins v. The Queen [3] . It is a preliminary procedure recognized by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention. Oral argument is a valuable aid to adjudication in some cases but an application may be so patently meritorious or unmeritorious that oral argument would be an unnecessary occupation of the court's time. The rule makes provision for an application to be listed for oral argument either ex parte or on notice wherever that course is thought to be desirable or proper. In any event, an applicant is afforded an opportunity of full oral argument before a single judge. A transcript of that argument is placed on the file and is available to the members of the Full Court who, in response to the wish of an applicant, determine the application. In addition, an applicant is given the opportunity to place any further material in writing, including a summary of argument, before the court for its consideration. Sub-rules (5) and (6) do not require or authorize the court to adopt a procedure which is unfair in particular cases. Whether or not one considers the procedures for which the sub-rules provide to be desirable, the sub-rules cannot be held invalid on the ground that they ought to have provided for a fairer procedure. The relevant criterion of validity is not the fairness of the rules but whether they are a reasonable means of attaining the ends of the rule-making power: Williams v. Melbourne Corporation [4] .

1. (1969) 122 C.L.R. 546, at p. 553. 2. (1975) 133 C.L.R. 120, at p. 122. 3. (1933) 49 C.L.R. 142.

The second submission with respect to the sub-rules is that they are invalid as going beyond the limits of the rule-making power. The power is contained in s. 368 within Pt XI of the Act. So far as material, that section provides:

(1) Rules of court for the purposes of this Part shall be made by the judges of the Supreme Court.

(2) Rules so made may make provision with respect to any matter for which provision is to be made under this Act by rules of court and may regulate generally the practice and procedure under this Part.

(4) The provisions which relate to making rules of court and are contained in the Acts regulating the general practice and procedure of the Supreme Court shall, so far as applicable, apply to rules made under this section.

Although sub-rr. (5) and (6) of r. 25 "regulate generally the practice and procedure" under Pt XI of the Act, a power to make rules with respect to practice and procedure is not construed as a power to alter what Bramwell B. and Williams J. described as one of the ordinary incidents of English courts of justice, namely, that its proceedings should be conducted in public: H. (falsely called C.) v. C [5] , cited by Stephen J. in Russell v. Russell [6] . In the latter case Gibbs J. said in reference to a provision in the Family Law Act 1975 Cth requiring the Supreme Courts of the States in exercising the jurisdiction conferred under that Act to sit in private: "To require a court invariably to sit in closed court is to alter the nature of the court" [7] . These propositions apply to the procedure of courts in the ordinary course of litigation but, as we have noted, an application for leave is not in the ordinary course of litigation. A rule which authorizes the court to deal with applications for leave to appeal without an oral hearing does not alter the nature of the court. 1. (1859) 29 L.J. (P. & M.) 29, at p. 30. 2. (1976) 134 C.L.R. 495, at p. 532. 3. (1976) 134 C.L.R., at p. 520.

However, the applicant points to s. 357 of the Act as indicating that the legislature did not intend that oral argument in public should be precluded in determining applications for special leave. The first paragraph of s. 357 provides:

Where a convicted person desires to appeal under this Act to the Full Court or to obtain the leave of that Court to appeal, he shall give notice of appeal, or notice of his application for leave to appeal, in such manner as may be directed by rules of court, within ten days of the date of conviction. Such rules shall enable any convicted person to present his case and his argument in writing instead of by oral argument if he so desires. Any case or argument so presented shall be considered by the Full Court. It is submitted that this section confers on a convicted person not only a right to present his argument in writing if he so desires but equally a right to present oral argument. So construed, s. 357 would deny to the judges power to make a rule which denies the latter right to an applicant. In our opinion, on its proper construction, the section does not confer a right to present oral argument. The purpose of s. 357 is facultative. If the second sentence is read without the phrase "instead of by oral argument", it is clear that Parliament intends that provision be made for a convicted person, if he so desires, to present his case and his argument in writing. Such a provision marks a departure from the normal practice which requires that proceedings take place in open court with the opportunity for parties to be present and to be heard orally, and the phrase "instead of by oral argument" is a mere acknowledgment of normal practice. The phrase is not expressed to be a guarantee of a right to present an oral argument and there is nothing in its text which warrants an implication of such a right. This construction is wholly consistent with later sections in the Act. Section 361 draws a distinction between the hearing of an appeal other than an appeal on a ground involving only a question of law and an application for leave to appeal. In the former, an appellant is entitled to be present on the hearing of his appeal notwithstanding that he is in custody. In the other cases, he is not entitled to be present except where the rules of court so provide or where the Full Court gives him leave to be present. The effect of this provision is that, there being no rule to the contrary, an unrepresented applicant has no right to be present on the hearing of his application for leave. The section does not preclude representation by counsel. Again, there is provision for the Full Court summarily to dismiss an appeal without a full hearing and without calling on any persons to attend the hearing or to appear for the Crown if it considers that the appeal is frivolous or vexatious: s. 365(2).

The construction of s. 357 for which the applicant contends should be rejected. Accordingly, it is unnecessary to consider the operation of s. 368(4) of the Act which incorporates by reference s. 72(3) and (4) of the Supreme Court Act 1935 S.A.. The challenged sub-rules lie squarely within the rule-making power conferred on the judges by s. 368 of the Act. Neither of the attempts to read down that power succeeds. For these reasons the application for special leave should be refused.

The requirement that leave or special leave be obtained before an appeal will lie is a necessary control device in certain areas of the administration of justice (e.g. appeals to a second appellate court) in this country. As a filter of the work which comes before some appellate courts, it promotes the availability, the speed and the efficiency of justice in those appeals which are, in all the circumstances, appropriate to proceed to a full hearing before the particular court. It also represents a constraint upon the overall cost of litigation by protecting parties, particularly respondents, from the costs of a full hearing of appeals which should not properly be entertained by the relevant court either because they are hopeless or, in the case of a civil appeal to a second appellate court, because they do not possess special features which outweigh the prima facie validity of the ordinary perception that the availability of cumulative appellate processes can, of itself, constitute a source of injustice. In these circumstances, it is neither surprising nor regrettable that the application for leave or special leave to appeal has, in this country, become a generally accepted and standard part of ordinary curial procedures. In a case such as the present where the application for leave to appeal was from a criminal conviction or information to a first court of appeal exercising general supervisory appellate jurisdiction, the requirement of leave effectively represents no more than a means of efficiently disposing of prospective appeals which would obviously fail since it is difficult to envisage circumstances where a competent application for leave to appeal to such a court could properly be refused in a case where the conviction should be set aside if leave were to be granted and the appeal were to proceed to a full hearing.

On the other hand, the application for leave or special leave to appeal commonly possesses a number of special features which set it apart from at least some other judicial proceedings. First, it involves the exercise of an extremely wide judicial discretion. Secondly, and notwithstanding that refusal of the application ordinarily involves the final determination of the particular litigation, that wide discretion can commonly be exercised without the provision of detailed or, sometimes, any reasons. Thirdly, if the application is to the court which will hear the appeal if leave is granted, there is a risk that the ordinary appearance of judicial disinterest in the outcome of proceedings may be, albeit wrongly, seen as qualified in that the workload of what will ordinarily be an already overburdened bench will vary according to the number of successful applications. Fourthly, it is inevitable that a refusal of leave will be sometimes seen by an unsuccessful applicant as a decision to close the doors of the court in his face rather than as an examination and reasoned rejection of his claim that he has been the victim of a miscarriage of justice in the court or courts below. The effect of these special features of judicial proceedings dealing with applications for leave to appeal is not to lessen the importance of the ordinary safeguards of the administration of justice. To the contrary, the effect is to emphasize the importance that they be observed. Among those safeguards is the ordinary rule that judicial proceedings should take place in open court: see, e.g., Scott v. Scott [8] ; Dickason v. Dickason [9] ; McPherson v. McPherson [10] ; Rex v. Hamilton [11] ; Russell v. Russell [12] ; Attorney-General v. Leveller Magazine Ltd. [13] .

1. [1913] A.C. 417, at pp. 476-478. 2. (1913) 17 C.L.R. 50, at p. 51. 3. [1936] A.C. 177, at p. 200. 4. (1930) 30 S.R. (N.S.W.) 277, at p. 278. 5. (1976) 134 C.L.R. 495, at pp. 520, 532. 6. [1979] A.C. 440, at p. 450.

Section 352(1) of the Criminal Law Consolidation Act 1935 S.A. ("the Act") confines the right of a person convicted on information to appeal under the Act to the Full Court of the Supreme Court, on any ground of appeal which involves a question of fact alone or a question of mixed law and fact, to a case where the convicted person has obtained the certificate of the trial judge or leave of the Full Court. The effect of s. 367 of the Act is that the power of the Full Court to grant such leave may be exercised by any judge of the Supreme Court subject to the important proviso that, "if the judge refuses an application on the part of the appellant to exercise any such power in his favour, the appellant shall be entitled to have the application determined by the Full Court". The effect of an adverse determination by the Full Court is that, subject to the possible intervention of this Court, the applicant is denied the opportunity of pursuing any appeal at all on the relevant ground from his conviction. In particular, he is denied the opportunity of appealing on the ground which is essential to the effective general supervision of the administration of criminal justice by a court of criminal appeal. That ground is the common one to the effect that, viewed in the context of the evidence, a conviction is unsafe and unsatisfactory. Prima facie, as a matter of general principle, the determination by the Full Court of such an application should be in accordance with the ordinary rules and standards which govern the hearing of judicial proceedings in this country, including the ordinary rule that the hearing of such proceedings be in open court. The Criminal Appeal Rules made by the judges of the Supreme Court of South Australia ("the rules") purport to alter that prima facie position.

The relevant provisions are in r. 25. Under that rule, notice of application for leave to appeal "shall be deemed to be" an application to a single judge. The rule recognizes the right of an applicant who fails before a single judge to have the application determined by the Full Court but proceeds to dispense with any need for any public hearing by the Full Court. In such a case, the applicant is required or entitled ("may") to lodge a written summary of argument. The application "shall be considered by the Full Court privately and the Full Court shall consider any summary of argument lodged by the appellant". "After consideration in private of any such application the Full Court may without hearing oral argument make an order refusing the application". Presumably, in a case such as the present where the Full Court determines the matter in private and does not extend to the applicant the opportunity of presenting oral argument, the final order of the Full Court must, as it was in the present case, be made in open court. Otherwise, an applicant in such a case is, if the provisions of r. 25 be valid, denied completely the ordinary safeguards flowing from the fundamental requirement that justice be administered in open court. He is given no prior opportunity to object to a particular judge sitting as a member of the Full Court: see, e.g., Reg. v. Felixstowe Justices; Ex parte Leigh [14] . He is denied the prima facie right of every litigant to have the proceedings in which he is involved conducted with the benefit of the spur to exertion and the safeguard against improbity, arbitrariness and idiosyncrasy which is imparted by their conduct being open to public scrutiny: cf., Attorney-General v. Leveller Magazine Ltd. [15] ; Australian Broadcasting Commission v. Parish [16] .

1. [1987] Q.B. 582, at pp. 590-591. 2. [1979] A.C., at p. 450. 3. (1980) 29 A.L.R. 228, at p. 254.

In the present case, the applicant's attack on the validity of the relevant provisions of the rules was founded on two distinct, but related, arguments. The first argument was that those provisions were ultra vires the general rule-making power of the judges of the Supreme Court. The second was that they were ultra vires that rule-making power for the reason that they conflicted with a clear legislative intent, to be discerned in the Act, that an applicant for special leave to appeal from a conviction should be entitled, under the rules, to have his case presented by oral argument in open court unless he "desires" to present his case and his argument in writing. Before turning to consider those arguments, it is desirable that it be made clear beyond possibility of misapprehension that there is no suggestion in the present case that the judges of the Supreme Court who made the relevant provisions of the rules were acting otherwise than in what they saw as the interests of the administration of criminal justice in the Supreme Court. All that is involved in this aspect of the present application is the general question of the scope of the rule-making power.

The relevant rule-making power is to be found in s. 368 of the Act which, like all other provisions of the Act mentioned in this judgment other than s. 40, is in Pt XI which is headed "Cases Stated and Appeals". That power is, in terms, conferred upon the judges of the Supreme Court to make rules of court "for the purposes of this Part" which rules "may make provision with respect to any matter for which provision is to be made under this Act by rules of court and may regulate generally the practice and procedure under this Part": s. 368(1) and (2). As a matter of ordinary construction, a general rule-making power conferred upon the judges of a court does not authorize the making of a rule which would transform the court's ordinary incidents as a court of justice or subvert its primary function. As Stephen J. pointed out in Russell v. Russell [17] , it is an ordinary incident "of English courts of justice" that curial proceedings should be conducted in public and, quoting Farwell L.J. in Scott v. Scott [18] , "the primary function of [a court] is to administer equal justice to all suitors in open Court". That being so, a general rule-making power such as that conferred upon the judges of the Supreme Court by s. 368 of the Act does not, at least prima facie, authorize the making of a rule having the effect that judicial proceedings are to be heard and determined in private. We have already expressed the view that, for the reasons given above, an application for leave or special leave to appeal should, in this country, be seen as a generally accepted and standard part of ordinary curial procedures to which the ordinary safeguards of the administration of justice are applicable. It follows that, in our view, the general rule-making power conferred by s. 368 of the Act did not, of itself, extend to authorize the making of those provisions of the Criminal Appeal Rules having the effect that an application by a convicted person for leave to appeal in a case such as the present should, regardless of the desires of the applicant, "be considered by the Full Court privately" on the basis of a written summary argument without the applicant or any person other than the judges being entitled to be present. The question arises whether there is any other provision of the Act which expressly or impliedly empowers the making by the judges of rules having such an effect.

1. (1976) 134 C.L.R., at p. 532. 2. [1912] P. 241, at p. 287.

Examination of the Act discloses no provision which, either alone or in combination with the general rule-making power, could be construed as authorizing the making of a rule requiring or empowering the Full Court to hear applications by convicted persons for special leave to appeal in private on written argument regardless of whether the particular applicant desires that that course be followed. To the contrary, the provision of the Act upon which the applicant's second argument is based, which is in s. 357, seems to us to make clear a legislative intent that a convicted person who desires to present oral argument on the hearing of an application for leave to appeal should be entitled under the rules so to do. That section is in the following terms:

Where a convicted person desires to appeal under this Act to the Full Court or to obtain the leave of that Court to appeal, he shall give notice of appeal, or notice of his application for leave to appeal, in such manner as may be directed by rules of court, within ten days of the date of conviction. Such rules shall enable any convicted person to present his case and his argument in writing instead of by oral argument if he so desires. Any case or argument so presented shall be considered by the Full Court. (Emphasis added.) Plainly, the provision that the rules "shall enable any convicted person to present his case and his argument in writing if he so desires" does not require or authorize the making of a rule forcing such a person to present his argument in writing even though he does not so desire. Indeed, the express requirement that the rules "enable" a convicted person to present his case on an application for leave to appeal in writing instead of by oral argument " if " he so desires impliedly precludes the making of a rule requiring him to present his case in writing instead of by oral argument regardless of whether he "so desires" or not. A fortiori, the provisions of s. 357 confirm, rather than reverse, the prima facie position that the general rule-making power is not to be construed as conferring a power to make a rule requiring that applications for leave to appeal be heard privately with the applicant being entitled neither to be present nor to be orally heard.

It follows that the relevant provisions of r. 25 of the Criminal Appeal Rules are invalid as being beyond the rule-making power of the judges of the Supreme Court. We would grant special leave to appeal and allow the appeal to the extent necessary to recognize the applicant's right to a public hearing by the Full Court of his application for leave to appeal on the ground that, in all the circumstances, the jury's verdict of guilty was unsafe and unsatisfactory. We agree, for the reasons which they give, with the conclusion of Mason C.J. and Wilson and Brennan JJ. that the Full Court was correct in dismissing the appeal in so far as it was founded on the ground that, in order to establish the offence created by s. 40 of the Act, the Crown must prove a specific intent to cause actual bodily harm.