Eastman v The Queen

"Ethics Bulletin" Victorian Bar News (No 142 Spring/Summer 2007 p 10) DAVID HAROLD EASTMAN v THE QUEEN ACD 66 OF 1995

brisbane (heard in canberra) IN THE FEDERAL COURT OF AUSTRALIA

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

JUDGES: SPENDER, GRAY & LOGAN JJ DATE OF ORDER: 18 april 2008

1. The motions the subject of the amended notice of motion,

filed on 5 October 2007, be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

The nature and history of the proceeding 1 The question for determination at this stage of this proceeding is whether this Court has power to reopen an appeal already determined. The applicant, Mr Eastman, who was the appellant in the original appeal, seeks to reopen the appeal on the ground that there is an issue that remains undetermined. The undetermined issue is said to be the question whether, at the time of his trial, Mr Eastman was unfit to plead by reason of his mental condition. 2 In 1995, Mr Eastman was tried and convicted on a charge of murder. The trial was in the Supreme Court of the Australian Capital Territory ("the ACT Supreme Court"; references to the Australian Capital Territory are to the "ACT") and lasted from 16 May 1995 until 3 November 1995. In the course of the trial, there were periods when Mr Eastman opted to dispense with any legal representation. In the course of his cross-examination of a police witness, several reports of a psychiatrist, Dr Milton, were produced and marked for identification. Dr Milton had been engaged by the police while they were investigating Mr Eastman, to provide expert advice to the police about Mr Eastman's mental state. Dr Milton's reports were never admitted into evidence and the trial judge did not see them, at least in the course of the trial. The reports concerned a period that ended well over two years prior to the commencement of the trial. Although, at various times, Dr Milton suggested that Mr Eastman had a dangerous, paranoid personality, could be regarded as psychotic, was out of touch with reality, and had a serious emotional disorder which might qualify him for a defence of diminished responsibility, Dr Milton did not suggest that Mr Eastman would be unfit to be tried. The question whether Mr Eastman was fit to plead was not raised at any time during the trial, by the trial judge, the prosecutor, Mr Eastman's defence lawyers, or Mr Eastman himself. 3 Mr Eastman exercised his right to appeal from his conviction. At the time, the appeal lay to a Full Court of this Court (by subsequent legislation, appeals from the ACT Supreme Court are now dealt with by the Court of Appeal of the ACT). 4 The question of Mr Eastman's fitness to plead at the trial was never raised expressly or dealt with on the appeal. For a purpose other than that connected with Mr Eastman's fitness to plead at the time of the trial, it became necessary for the Full Court that dealt with the appeal to look at the reports of Dr Milton that had been marked for identification at the trial. The appeal was dismissed by the Full Court on 25 June 1997. On 16 July 1997, the order dismissing the appeal had affixed to it the stamp of the Court and the signature of the District Registrar of the ACT District Registry of the Court. The judgment of the Full Court on the appeal is reported as Eastman v R (1997) 76 FCR 9. It is that appeal that Mr Eastman now seeks to reopen. 5 Mr Eastman then sought special leave to appeal to the High Court of Australia. His application was dealt with by the Full High Court, which granted special leave but dismissed the appeal. The judgment of the High Court is found in Eastman v R [2000] HCA 29 (2000) 203 CLR 1. 6 It was in the High Court that the question of Mr Eastman's fitness to plead at the trial was first raised. There were two issues associated with that question. The first was whether the High Court could, and should, receive further evidence, not before either the trial judge or the first appellate court, for the purpose of establishing Mr Eastman's mental state at the time of the trial. On this issue, by a majority of five-two, the High Court held that s 73 of the Constitution operated in relation to the courts of a Territory as well as the courts of a State, and did not authorise the High Court to receive further evidence on an appeal. This issue need concern this Court no further. The second issue was whether the Full Court at the first level of appeal should have raised of its own motion the question of Mr Eastman's fitness to plead at the trial, because of its awareness of the contents of the reports of Dr Milton. On this issue, the High Court divided four-three against Mr Eastman. In other words, the High Court held that the question of Mr Eastman's fitness to plead at the trial was not before the Full Court by reason of the Full Court's awareness of the contents of Dr Milton's reports.

The motions before the Court 7 By notice of motion filed on 14 September 2007, Mr Eastman applied to the Court for orders including an order that his appeal, already dismissed on 25 June 1997, be reopened and that the appeal be allowed, the conviction be quashed and a retrial in the ACT Supreme Court be ordered. Pursuant to leave granted by Madgwick J on 25 September 2007, Mr Eastman filed an amended notice of motion on 5 October 2007, seeking orders in the following terms:

1. That the Applicant's appeal to the Full Court of the Federal Court of Australia in proceedings no ACT G66 of 1995 (which appeal was dismissed on 25 June 1997) be re-opened on the following grounds: (a) There was an inadvertent denial of natural justice and/or procedural fairness in the original appeal hearing by reason of the Applicant's refusal to allow his legal counsel to argue a ground of appeal alleging that, by reason of there being an unresolved question of the Applicant's fitness to plead, the Applicant's trial was a nullity. (b) By reason of fresh and/or new evidence that was not available or was not adduced at the original appeal hearing, a substantial miscarriage of justice has occurred and/or the trial was a nullity by reason of the fact that on or about the 22nd day of May 1995, the Mental Health Tribunal of the Australian Capital Territory could reasonably have determined, pursuant to section 68(2) of the Mental Health (Treatment and Care) Act 1994, that the Appellant was not fit to plead to the charge.

PARTICULARS (i) Evidence of the Applicant's medical condition prior to and during his trial; (ii) Evidence from his legal practitioners as to the Applicant's state of mind and instructions prior to and during his trial and prior to and during his appeal hearing. 2. That the Application to re-open the appeal, and the re-opened appeal itself, be heard concurrently and expeditiously, in anticipation that Order no 1 above may be granted. 3. That when re-opened, the appeal be allowed, the conviction be quashed and a re-trial in the Supreme Court of the Australian Capital Territory be ordered. These grounds are repeated in a supplementary notice of appeal, also filed by Mr Eastman on 5 October 2007. 8 Prior to the date fixed for hearing the motions, the Court indicated to Mr Eastman, and to those representing him that, at the initial stage of the hearing, attention would be directed only to the question of the power of the Court to reopen the appeal on the stated grounds. Although no order was made for the decision of any specified question separately from any other question, pursuant to O 29 r 2(a) of the Federal Court Rules ("the Federal Court Rules"), the argument was conducted on this basis. At the hearing, Mr Eastman was represented by senior counsel, on a pro bono basis, until after the conclusion of argument on behalf of the respondent. After a brief adjournment, counsel for Mr Eastman informed the Court that his instructions to appear had been withdrawn and requested that he be granted leave to excuse himself from further attendance. Such leave was granted. Mr Eastman exercised his right of reply in person.

The relevant legislation 9 At the time of Mr Eastman's trial, s 428E(1) of the Crimes Act 1900 (ACT) provided: Where, on the trial of a person charged with an indictable offence - (a) the issue of fitness to plead to the charge is raised by a party to the proceedings or by the Court; and (b) the Court is satisfied that there is a question as to the person's fitness to plead to the charge; the Court shall order the person to submit to the jurisdiction of the Tribunal to enable the Tribunal to determine whether or not the person is fit to plead to the charge. The reference to the "Tribunal" is a reference to the Mental Health Tribunal, established under the Mental Health (Treatment and Care) Act 1994 (ACT). 10 The appellate jurisdiction of this Court is conferred and regulated by the provisions of Div 2 of Pt III of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"). At the time of Mr Eastman's appeal to this Court, s 24(1) provided relevantly: Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine: ... (b) appeals from judgments of the Supreme Court of a Territory This provision was amended by item 1 of Sch 1 to the Jurisdiction of Courts Legislation Amendment Act 2002 (Cth), by inserting after the word "Territory", the words "(other than the Australian Capital Territory or the Northern Territory)". The counterpart of this amendment was an amendment to insert into the Supreme Court Act 1933 (ACT) the provision that is now s 37E, which confers appellate jurisdiction on the ACT Supreme Court in its capacity as the Court of Appeal. Item 13(1) of Sch 1 to the Jurisdiction of Courts Legislation Amendment Act 2002 (Cth) provides that the amendment made by item 1 applies in relation to appeals instituted on or after the commencement of that item, and appeals instituted before the commencement of that item but in respect of which the Court has not begun a substantive hearing before that commencement. Neither of these provisions applies to Mr Eastman's appeal to this Court. It follows that, if the appeal can be reopened, this Court continues to have jurisdiction to deal with the reopened appeal. 11 By s 25(1) of the Federal Court Act, the appellate jurisdiction of the Court is to be exercised by a Full Court, subject to some exceptions that are not applicable in the present case. Section 27 confers on the Court power to receive further evidence, ie. evidence that was not before the Court at first instance. Section 28(1) provides relevantly as follows: Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction: (a) affirm, reverse or vary the judgment appealed from; (b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order; ... (e) set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty or other appropriate verdict to be entered; (f) grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial Apart from an amendment to s 27, the substance of which is not material to this case, those provisions remain in their original form since the passage of the Federal Court Act. It is settled that they confer on the Full Court a jurisdiction with respect to criminal appeals which is at least as wide as that conferred on State Courts by provisions based on s 4(1) of the Criminal Appeal Act 1907 (UK): Chamberlain v R [No. 2] (1984) 153 CLR 521, at 529, 569-570 and 615-616. 12 Section 34 of the Federal Court Act provides for the establishment of registries, including one in the Australian Capital Territory, and for their designation as (relevantly) district registries. Section 36 provides relevantly as follows: (1) The Court shall have a seal, the design of which shall be determined by the Attorney-General. ... (4) The District Registrar in respect of each District Registry shall have in his or her custody a stamp the design of which shall, as nearly as practicable, be the same as the design of the seal of the Court, with the addition of such words as the Chief Judge directs for the purpose of relating the stamp to that District Registry.

(5) A document or a copy of a document marked with a stamp referred to in subsection...(4) is as valid and effectual as if it had been sealed with the seal of the Court. (6) The seal of the Court and the stamps referred to in this section shall be affixed to documents as provided by this or any other Act or by the Rules of Court. 13 By s 38(1) of the Federal Court Act, the practice and procedure (defined to include all matters in relation to which rules of court may be made) is to be in accordance with rules of court made under the Federal Court Act. By s 59(1), rules of court may make provision for or in relation to the practice and procedure to be followed in the Court, including the practice and procedure to be followed in its registries, and for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Court. Some particular provisions about which rules may be made are contained in s 59(2). The Federal Court Rules contain the various exercises of the power to make rules under s 59 of the Federal Court Act. 14 Order 36 of the Federal Court Rules contains provisions with respect to the entry of orders as follows: 1 For rules 3 and 7 of this Order: Registrar includes an officer acting with the authority of the Registrar. ... 3 (1) An order may be entered in accordance with subrule (2) or rule 5. (2) A Registrar may enter an order by authenticating the order in accordance with subrule 7(1) if: (a) the order has been settled in accordance with rule 4; and (b) the Court or a Judge directs, or a party requests, that the order be entered. 4 (1) If a party wishes to have an order entered, the party may lodge with the Registrar a draft of the order, in accordance with Form 47. (2) An order may be settled by the Court or a Judge, or a Registrar, even if no draft of the order has been lodged under subrule (1). (3) The Court or a Judge may give directions to a Registrar who is settling an order under this rule. ... 6 Unless the Court otherwise orders, the date as of which an order is entered is the date when the order was made. 7 (1) An order is authenticated by: (a) the Court or a Judge, or a Registrar signing the order; and (b) the Court or a Judge, or a person at the direction of the Court or a Judge, or a Registrar, affixing the stamp of the Court to the order. 15 The Federal Court Rules also contain provisions about setting aside or varying judgments or orders of the Court, in O 35 r 7: (1) The Court may vary or set aside a judgment or order before it has been entered. (2) The Court, where it is not exercising its appellate or related jurisdiction under Division 2 of Part III of the Act, may if it thinks fit vary or set aside a judgment or order after the order has been entered where - (a) the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order; (b) the order was obtained by fraud; (c) the order is interlocutory; (d) the order is an injunction or for the appointment of a receiver; (e) the order does not reflect the intention of the Court; or (f) the party in whose favour the order was made consents.

(3) A clerical mistake in a judgment or order, or an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court. (4) Subrule (2) shall not affect the power of the Court to vary or terminate the operation of an order by a supplementary order. The qualification expressed in subr (2) makes it clear that none of the grounds contained in that subrule provides a basis for varying or setting aside a judgment or order made by the Court in the exercise of its appellate jurisdiction.

The perfection of the order 16 As the answer to the question before the Court may depend upon whether the order of the Full Court, made on 25 June 1997, was perfected, it is necessary to determine this issue. Counsel for Mr Eastman suggested that there is an established practice with respect to the perfection of orders of appellate courts in criminal cases in some jurisdictions, which may be applicable in the ACT, and which has not been followed in the present case. The practice is to endorse on the indictment in the records of the trial court the order of the appellate court. There is no evidence that this practice prevails in the ACT, nor that it was not followed in the present case, if it does. Assuming both of those facts, however, it is plain that neither the Federal Court Act nor the Federal Court Rules contain any requirement that such a practice be followed. 17 The provisions of O 36 of the Federal Court Rules, quoted in [14], do not distinguish between civil and criminal cases, or between orders made in the original jurisdiction of the Court and orders made in its appellate jurisdiction. They provide for the method by which orders of the Court generally are to be entered. As O 35 r 7 (which again does not distinguish between civil and criminal cases) demonstrates, it is the entry of the order that provides the crucial difference between a case in which the order may be varied or set aside generally and a case in which variation or setting aside is only possible on specified grounds. These provisions of the Federal Court Rules derive their statutory force from ss 59 and 38 of the Federal Court Act. There can be no doubt that the requirements of O 36 r 3 and r 7(1) were complied with in relation to the order of the Full Court. The order bears both the signature of the District Registrar and the imprint of the stamp of the ACT District Registry of the Court. The ACT District Registry has been established pursuant to s 34(1) of the Federal Court Act and designated as a district registry pursuant to s 34(2). The stamp complies with s 36(4) and has been affixed to the order of the Full Court as provided by O 36 rr 3 and 7(1), as required by s 36(6). Accordingly, by s 36(5) of the Federal Court Act, the document is as valid and effectual as if it had been sealed with the seal of the Court. There are no other provisions to be complied with before entry of the order is complete. Regardless of any practice, statutory or otherwise, which might be followed in relation to the orders of appellate courts in criminal cases generally, or specifically in the ACT, from the point of view of this Court, the order of the Full Court made on 25 June 1997 has been perfected.

The special character of questions of fitness to plead 18 Both counsel for Mr Eastman, and Mr Eastman in his reply, emphasised the special character of the issue of fitness to plead at a criminal trial. There is no doubt that a distinction can be drawn between the question of fitness to plead and other questions that may arise in the course of a criminal trial, or a criminal appeal. It is obvious that a person who is in fact unfit to plead, by reason of his or her mental state, might be very likely to instruct counsel acting for him or her not to take the point that the person is unfit to plead. Many people who are mentally ill do not recognise that they have such an illness. It is difficult to escape from the fact that, despite what is now known and understood about various forms of mental illness, there is a stigma attached to being labelled as mentally ill. A person who is capable of recognising his or her own mental illness may be reluctant to acknowledge publicly that the illness exists. The usual consequence of a finding that a person is unfit to plead by reason of mental illness is effectively incarceration without trial. It is therefore in the interests of the accused to instruct counsel not to raise the issue, but rather to take the chance of a verdict, which might be favourable. See Kesavarajah v R (1994) 181 CLR 230 at 249 per Deane and Dawson JJ, and Eastman v R [2000] HCA 29 (2000) 203 CLR 1 at [24] per Gleeson CJ. For these reasons, a question of fitness to plead by reason of the client's mental state might be one of the rare occasions in which the duty of counsel to the court, and indeed to the client, might override the express instructions of the client, so as to require that the issue be raised, despite the client's expressed wish to the contrary. As the Ethics Committee of the Victorian Bar said in its Bulletin 1 of 2007 (published in Victorian Bar News No 142 Spring/Summer 2007 p 10): Where counsel forms an opinion that there is a mental disorder or impairment with a consequent inability to give instructions, counsel, if he or she retains the brief, is obliged to disclose that inability to the trial judge in accord with the duty owed by counsel to the court. This arises because an inability to give instructions directly affects the proper adnministration [sic] of criminal justice. That a client may fear the consequences of a determination of unfitness does not negate or lessen this duty. 19 The special status of questions of fitness to plead is also demonstrated by the provisions of s 428E(1) of the Crimes Act 1900 (ACT). The purpose of that provision is to ensure that any question as to the fitness to plead of an accused person at the trial will be dealt with properly. The issue can be raised by the prosecutor, the accused or the court. The prosecutor's duty of fairness to the accused will no doubt require that, if the prosecutor becomes aware of information suggesting that there is an issue as to the accused's fitness for trial, the prosecutor will be required to raise that issue, so that the court may determine whether a question as to the accused's fitness to plead exists. It is unnecessary to determine whether that duty was activated in the present case by the prosecutor's knowledge of the reports of Dr Milton, once they were produced and marked for identification. The majority of the High Court in Eastman appears to have taken the view that those reports by themselves did not give rise to a question as to Mr Eastman's fitness to plead to the charge, at least to the extent that the Full Court on appeal was not obliged to consider of its own motion whether that question had arisen. 20 There was also some argument about the relevance of Mr Eastman's mental state at the time of the appeal to the Full Court. Some affidavit material has been filed suggesting that Mr Eastman's explicit instruction to his counsel on the appeal not to raise the issue of his fitness to plead at the trial was vitiated by his lack of mental capacity to give such an instruction. On the other hand, Mr Eastman in his reply argued that the special character of the issue of fitness to plead was such that his mental state at the time of the appeal was of no consequence. His argument was that the special status of the issue of fitness to plead required that attention be given to it, even after the appeal has been determined. It should also be noted that Mr Eastman argued, perhaps in the alternative, that any instruction to his counsel not to raise the question of fitness to plead in the appeal was so manifestly irrational as to require that the instruction be vitiated. 21 For this Court, the essential question is whether the character of the issue of fitness to plead is so special that it can be raised now even though it was never raised, argued or determined on the appeal to the Full Court, and even though the appeal to the Full Court has been determined and the order of the Full Court has been perfected. To determine that question, it is necessary to look at the authorities relating to the finality of appeals, and the power to reopen them.

The finality principle 22 Although precise definition of the boundaries of judicial power is impossible, it has long been recognised that the essence of judicial power, particularly the judicial power of the Commonwealth derived from Ch III of the Constitution, includes the making of determinations that are binding and conclusive: Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357 per Griffith CJ, R v Davison (1954) 90 CLR 353 at 387 per Taylor J and Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 at 542-543. The final and binding effect of a judicial determination forms the basis of a number of principles. A judgment of a superior court of record is binding on the parties to the proceeding in which it is given. It cannot be ignored, or treated as a nullity, whatever defects there might be in it. Even if the judgment is beyond the jurisdiction of the court giving it, this does not deprive it of its binding effect, and it must be obeyed unless and until properly set aside, eg on appeal: Cameron v Cole (1944) 68 CLR 571 at 590 per Rich J, 598 per McTiernan J and 607 per Williams J, and Re Macks; Ex parte Saint [2000] HCA 62 (2000) 204 CLR 158 at [20] and [53] per Gaudron J, [148] per McHugh J, [216] per Gummow J, [255] per Kirby J and [334]-[344] per Hayne and Callinan JJ. The use of the word "nullity" by Watkins LJ, giving the judgment of the Court of Appeal in Iqbal Begum v R (1985) 93 Cr App R 96 at 100, to describe a plea, trial, conviction and sentence in a criminal case in the Crown Court that had miscarried because the interpreter provided spoke a different language from the first language of the accused, was clearly erroneous, if it was intended to mean that the trial could be treated as if it had not occurred. At least in relation to a judgment of a superior court of record in Australia, no such description could be applied, if it had such a meaning. 23 In this respect, a judgment of a superior court differs from a decision of an administrative decision-maker, a decision not made in the exercise of judicial power. If the decision is the result of jurisdictional error on the part of the decision-maker, it is "properly regarded, in law, as no decision at all": Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597 at [51] per Gaudron and Gummow JJ and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Thus, if an administrative decision-maker discovers that there has been jurisdictional error (including an inadvertent denial of procedural fairness), the decision-maker may disregard the purported decision already made and proceed to perform the statutory function to make a decision. This was what occurred in Bhardwaj. By contrast, the principle that a judgment of a superior court is binding applies equally to the court itself, which cannot choose to ignore a judgment and proceed to decide the case again. Unless and until the judgment is set aside according to law, it remains binding, not only on the parties, but also on the court itself. 24 The binding nature of judgments also underlies the principles that prevent the re-litigation of controversies already litigated to a conclusion. The principle described by the Latin term res judicata prevents a second proceeding being brought where a judgment has been entered in a previous proceeding in relation to the same cause of action: Jackson v Goldsmith (1950) 81 CLR 446 at 466 per Fullagar J. This principle can be used to bar not only controversies that were actually determined in a previous proceeding, but also those that ought to have been determined: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. It is the res judicata principle that underlies the rule against double jeopardy in the criminal law. A plea of autrefois convict or autrefois acquit is available to prevent a person from being charged again with an offence of which the person has necessarily been convicted or acquitted in a previous proceeding, even if not precisely the same offence. In addition to the principle of res judicata, specific issues that have been necessarily determined, so as to found a judgment, may not be re-litigated in a further proceeding, even if that proceeding involves a cause of action not determined previously: Blair v Curran (1939) 62 CLR 464 at 531-532 per Dixon J. Provided that the circumstances of the verdict of a jury in a criminal trial make it clear that the jury must have decided a certain issue, a charge depending upon the determination of that issue in a different way cannot be sustained, even though it is a charge in relation to a different offence from that formerly charged: Mraz v R [No. 2] (1956) 96 CLR 62. 25 The exceptions to the binding effect of a judgment of a superior court of record are not great in number. An obvious one is that a judgment may be set aside or varied on appeal. Such a course is precluded in the present case by the fact that Mr Eastman has already appealed to the High Court of Australia from the judgment of the Full Court, and his appeal has been finally determined by the High Court. The measures that may be taken by a court in respect of its own judgments are reflected in the provisions of O 35 r 7, set out in [15]. Aside from fraud, consent, variation of an order so that it reflects the actual intention of the Court or to correct an accidental slip or omission, and the special cases of injunctions and the appointment of receivers, orders of the Court can only be set aside if made in default, or if they are otherwise interlocutory. 26 The definition of an interlocutory order is not altogether clear. Such a description is normally applied to an order dismissing a proceeding, or allowing the entry of judgment, made in default of appearance, or in default of the taking of some required step. Even so, it might be impossible to reopen such an order once it is perfected. Bailey v Marinoff (1971) 125 CLR 529 was a case in which the New South Wales Court of Appeal had made a self-executing order that an appeal be dismissed if appeal books were not filed and served on or before a particular date. The appeal books were not served until a later date. The appellant applied for an order extending the time for serving the appeal books and restoring the appeal to the list for hearing. The Court of Appeal effectively granted that order. The High Court held that the Court of Appeal had no jurisdiction to grant that order, because no appeal existed any longer, the order dismissing it having been perfected. It may be that the proper application to make in such circumstances would be an application to set aside the perfected order, on the basis that it was interlocutory, as a preliminary to making an application for the orders that were sought in that case. 27 In any event, interlocutory orders are usually contrasted with orders made as a result of a hearing "on the merits". This latter phrase is often used but rarely defined, and is perhaps incapable of exhaustive definition. It does appear to involve the process of determination of the issues raised in a proceeding. In the context of criminal proceedings, a hearing on the merits has been described as a hearing in which "the dispute between the parties [was] really fought out upon the hearing of the summons and the charge dismissed", in contrast to a situation in which "the charge [was] withdrawn, so that there was no real trial": Reed v Nutt (1890) 24 QBD 669 at 673 per Lord Esher MR, with whom Lord Coleridge CJ agreed. In Bridie v Messina (1965) 66 SR (NSW) 446, the Full Court of the Supreme Court of New South Wales held that the dismissal of an information in a criminal proceeding upon a successful plea of autrefois acquit was a hearing on the merits. At 453, Sugerman J, with whom Maguire J agreed, said: A hearing on the merits is one in which the issues of fact or law, or both, between the parties are fought out to a final conclusion binding upon the parties - a decision "upon the merits". It does not seem to matter that the determination of one or some only of the issues may suffice to decide the whole controversy, or that the issues may be decided on facts which are the subject of admission and not of dispute or even of evidence. Without purporting to make an exhaustive enumeration, or to state all the qualifications which may be necessary, a hearing may be said not to have been on the merits if it resulted in a decision which was not final but analogous rather to a non-suit, or if, for some such reason as withdrawal, want of jurisdiction, non-compliance with some preliminary requirement, defect in the information, or other technical or procedural informality or irregularity, it did not result, or could not have resulted, in a decision on the merits, final in its nature and capable of supporting (in criminal cases) a plea of autrefois acquit or autrefois convict. 28 In Burgess v John Connell-Mott, Hay and Anderson Pty Ltd (1979) 39 FLR 444, a Full Court of this Court held that an acquittal as a result of a successful contention that there was no case to answer a criminal charge gave rise to no right of appeal. At 445-446, Smithers J said: It was decided in Thompson v. Mastertouch T.V. Service Pty. Ltd. (No. 3) that upon the proper construction of s. 24 (1) (a) the appellate jurisdiction of the Full Court of this Court does not extend to appeals from judgments of acquittal in criminal matters by a court of competent jurisdiction after a hearing on the merits. At 446, Smithers J said: An accused person is acquitted other than on the merits when the proceedings against him are dismissed on some point which involves no adjudication on the facts or on the application of the law to the facts to determine his guilt or innocence. The typical case is one where the relevant tribunal refrains from investigating the merits on the ground that it considers it lacks jurisdiction...There is an apparent qualitative difference between such a case and that where according to the appropriate trial procedures the facts have been examined and a judgment of guilt or innocence given according to the court's determination of the facts and the relevant law. Smithers J later said at 446 that the judgment with which the Court was concerned in Burgess was "a judgment on the merits because it was obtained after consideration of all the evidence put against the respondent and the relevant law." Evatt J at 456 and Keely J at 457 each expressed the view that the hearing had been on the merits. 29 The significance of Bridie and Burgess is that there can be a binding determination of a criminal proceeding on the merits without a determination of every single factual or legal issue that has arisen, or may have arisen if it had been raised. The relevant distinction appears to be between, on the one hand, a judgment on the merits, in the sense of a determination after a hearing in which the facts and the legal issues have been investigated to the extent necessary to found a determination and, on the other hand, an interlocutory judgment, made without such a hearing, for some reason other than the outcome of a determination of the necessary facts and legal issues. A judgment of the latter kind can be reopened, even if perfected. A judgment of the former cannot, unless not perfected. 30 Even the power to reopen a judgment that has not been perfected is exercised sparingly. In Autodesk Inc v Dyason [No. 2] (1993) 176 CLR 300, the High Court dismissed an application to vacate its own judgment on the ground that the respondents to the proceeding before it had not had a proper opportunity to be heard on certain issues. In his dissenting judgment, Mason CJ at 302-303 set out the circumstances in which a judgment of the High Court (as an ultimate court of appeal) could be revisited, when it had not been perfected: the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases. Brennan J at 309-310 said: It is one thing to reopen an appeal after judgment if the Court has reached a conclusion by adopting a proposition of fact or law which the unsuccessful party has not had an opportunity to argue. In that event, natural justice is denied and it can be said that the Court's jurisdiction to hear and determine the matter is not exhausted. But that is not the present case. Here the ground on which the appeal was determined had been argued in the courts below and had been the subject of submissions in this Court. The appeal was determined after it was fully heard. That being so, I find no jurisdiction to set aside the judgment already pronounced merely because it is submitted by the unsuccessful party that, on further argument, the Court would be satisfied that it had reached the wrong conclusion in law. In University of Wollongong v Metwally [No. 2] this Court said: "Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so." Brennan J did not appear to draw a distinction between a judgment that had been perfected and one that had not. Dawson J at 317 expressed the view that a judgment not perfected could be revisited by a party who had been denied natural justice, in the sense of having not been heard on a vital issue, without fault of that party. Deane J, who also dissented, appeared to accept at 313-314 that lack of a proper opportunity to place before the High Court full submissions about an issue justified revisiting the judgment. At 322, Gaudron J expressed the wider view that a judgment that had not been entered should be set aside if the interests of justice so require. Her Honour did point out that the circumstances in which that power would be exercised are "in practice, extremely rare, particularly if there has been an opportunity for full argument." It is apparent from Autodesk that any power of an appellate court to reopen a judgment, even before its order has been perfected, cannot be invoked as of right by a party. The power will be exercised very sparingly. 31 It may also be the case that the power of the High Court, as an ultimate court of appeal, to revisit its judgments before they are entered is broader than that of an intermediate appellate court, because of the potential availability of an appeal from an intermediate appellate court (by special leave) to the High Court. In R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No. 2) [2000] 1 AC 119 at 132, Lord Browne-Wilkinson appears to have regarded the fact that the House of Lords is the ultimate appellate court in Britain as significant in deciding whether it should reopen an earlier order. His Lordship said: the respondents to the petition do not dispute that your Lordships have jurisdiction in appropriate cases to rescind or vary an earlier order of this House. In my judgment, that concession was rightly made both in principle and on authority. In principle it must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House. There is no relevant statutory limitation on the jurisdiction of the House in this regard and therefore its inherent jurisdiction remains unfettered. In Broome v. Cassell & Co. Ltd. (No. 2) [1972] A.C. 1136 your Lordships varied an order for costs already made by the House in circumstances where the parties had not had a fair opportunity to address argument on the point. However, it should be made clear that the House will not reopen any appeal save in circumstances where, through no fault of a party, he or she has been subjected to an unfair procedure. Where an order has been made by the House in a particular case there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order is wrong. 32 As a general rule, these manifestations of the principle of finality apply no differently in the case of a judgment that results from the hearing of an appeal than they do in the case of a judgment at first instance. In relation to the exercise of the judicial power of the Commonwealth in relation to appeals, this has been made explicit. In DJL v The Central Authority [2000] HCA 17 (2000) 201 CLR 226, the High Court held that the Full Court of the Family Court of Australia had no power to reopen an appeal once the judgment on the appeal had been entered, when reopening was sought on the ground that the court had applied the wrong legislation in determining the appeal. See [24]-[49] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ and [182]-[189] per Callinan J. In Pantzer v Wenkart [2007] FCAFC 27, a Full Court of this Court refused to reopen an appeal after final orders had been entered. At [5], Black CJ specifically followed DJL, stating that differences between the legislation conferring appellate jurisdiction on the Family Court and legislation conferring appellate jurisdiction on this Court were irrelevant to the existence of a power to reopen. DJL should therefore be regarded as authority binding this Court, in relation to the exercise of its appellate jurisdiction, and establishing the proposition that a Full Court cannot reopen an appeal that has been the subject of final orders that have been entered.

The finality principle and criminal appeals 33 The finality principle has certainly been applied in relation to criminal appeals. In Grierson v R (1938) 60 CLR 431, the High Court dealt with an application for special leave to appeal from the New South Wales Court of Criminal Appeal. Mr Grierson had been convicted, and had appealed unsuccessfully to the Court of Criminal Appeal previously. He had also sought special leave to appeal from that judgment to the High Court previously. He then made a second application to the Court of Criminal Appeal for leave to appeal against his conviction and sentences. The Court of Criminal Appeal upheld a preliminary objection that the court had no jurisdiction to entertain the application, because an appeal had already been dismissed after the merits had been determined. In the Court of Criminal Appeal, Jordan CJ, with whom Davidson and Halse Rogers JJ concurred, said in a passage quoted at 60 CLR 432: When an appeal has once been fully heard and disposed of, that is, in my opinion, an end of the matter so far as appeal is concerned, and the prisoner cannot continue to appeal from time to time thereafter, whenever a new point occurs to him or to his legal advisers or whenever a new fact is alleged to have come to light. 34 In the High Court, at 434, Rich J said, "when the court has heard an appeal on its merits and given its decision the appeal cannot be reopened." At 435, Starke J expressed his entire agreement with the reasons given by Jordan CJ. Also at 435, Dixon J said that the Court of Criminal Appeal had held "that a second appeal from a conviction could not be entertained after the dismissal, upon the merits, of an appeal or application for leave to appeal and that the first appeal could not be reopened after a final determination." At 437, McTiernan J expressed his agreement with the reasons of both Rich J and Dixon J. Grierson is therefore clear authority for the proposition that, in the absence of a special statutory provision, a criminal appeal that has been heard on the merits and determined cannot be reopened and a second appeal cannot be maintained.

35 The suggestion that there might be an exception, or exceptions, to this apparently absolute principle appears to have come from two cases decided by the High Court in 1989. The first is Jones v R (1989) 166 CLR 409. That case involved no attempt to reopen an appeal in an intermediate appellate court. It was an appeal to the High Court from the Court of Criminal Appeal of Tasmania. Mr Jones had appealed to that court from his conviction of a sexual offence. His appeal raised a number of grounds. The appeal court dealt with only two of those grounds, which it held justified setting aside the conviction and ordering a retrial. It did not go on to consider the remaining grounds which, if upheld, would have entitled Mr Jones to a complete acquittal. The appeal to the High Court was based on the failure of the intermediate appellate court to deal with all of the grounds of appeal. Mr Jones succeeded in the High Court. For present purposes, the significance of the case is in a passage in the joint judgment of Mason CJ, Brennan, Dawson and Toohey JJ at 414-415: The order of the Court of Criminal Appeal has been perfected. Counsel for both parties in this Court approached the application for special leave on the footing that it is now too late for the applicant to move the Court of Criminal Appeal to hear and determine the grounds left undetermined. If that be right - and in this case we should assume but not decide that it is - it is regrettable that when the omissions from the reasons for judgment in the Court of Criminal Appeal became known and before the formal order of the Court was perfected such an application was not made to the Court. Now, in order to ensure that the applicant's appeal to the Court of Criminal Appeal is fully determined, it is necessary to vary that Court's judgment and to remit the matter for further hearing and determination. At 416, Deane J expressed the view that the High Court should itself determine the undetermined grounds of appeal. The reluctance of the majority in Jones to express a clear view that the perfection of the order of the intermediate appellate court was a bar to Mr Jones applying to reopen his appeal to that court, to enable it to determine the undetermined grounds of appeal, has given rise to the suggestion that there may be an exception to the Grierson principle in a case where an appellate court has neglected to determine grounds of appeal that were raised and argued. There is no reference to Grierson, either in the report of the submissions of counsel, or in the judgments, in Jones. 36 The second case giving rise to a suggested exception to Grierson is Pantorno v R (1989) 166 CLR 466. Mr Pantorno had been sentenced in respect of possession of a drug of dependence by reference to a statutory provision applicable to possession for trafficking purposes, whereas the entire proceeding had been conducted on the footing that his possession of the drug was for his own use. There had been no opportunity provided to Mr Pantorno or his counsel to make submissions on the basis that the provision relating to trafficking purposes applied. The appeal to the Court of Criminal Appeal was on two grounds, that the sentence was manifestly excessive, and that it was not open to the sentencing judge to sentence on the basis that Mr Pantorno had possession of the drug for the purpose relating to trafficking. The second ground was based on the failure of the sentencing judge to follow R v Bridges (1986) 20 A Crim R 271, an earlier judgment of the Victorian Court of Criminal Appeal, in which it had been held that it was not open to a court to sentence an offender under the trafficking provision unless there had been a finding of a jury to that effect, or a plea of guilty to a charge under that provision. The Court of Criminal Appeal held that Bridges was incorrectly decided, and proceeded to consider whether the sentence was manifestly excessive, and to dismiss the appeal on the basis that it was not. Thus, Mr Pantorno was given no opportunity by the Court of Criminal Appeal to argue that he had been denied procedural fairness in the sentencing process at first instance. The High Court allowed the appeal, set aside the order of the Court of Criminal Appeal and remitted the case to the sentencing court, to enable Mr Pantorno to call evidence to establish that his case fell within the non-trafficking provision, and to be re-sentenced. 37 A significant fact in Pantorno is that it was not until the case reached the High Court that counsel for the Crown conceded that the non-trafficking provision was the relevant one. At 474, Mason CJ and Brennan J held that, once it was accepted that the proceedings before the sentencing judge were conducted on all sides on the footing that the non-trafficking provision was the relevant one, the sentencing judge was not entitled to sentence on the footing that the other provision was the relevant one without giving Mr Pantorno's counsel an opportunity to show why Mr Pantorno was not liable to the larger penalty. Their Honours then continued: The difficulty about this approach is that it was not argued in the Full Court, though it falls precisely within the second ground of appeal to that Court. Failure to argue a point before a court of criminal appeal presents a considerable obstacle to an applicant who seeks special leave to argue it in this Court. Even if the point emerges clearly only when a court pronounces its judgment, it should be appreciated by counsel who receive judgment that they are under a duty to draw the court's attention to issues which, in the light of the judgment, require further consideration by that court and to move the court to consider any such issues before the formal order of the court is perfected. On occasions, a court of criminal appeal may have to give further consideration to issues which were relegated to the margin of attention during the argument, though it is not required to consider new grounds which counsel abstained from raising on the appeal. In the present case, the failure of counsel to seek further consideration of the natural justice issue once Bridges was overruled by the Full Court is a factor which counts against the grant of special leave. However, as there seems to have been an erroneous view in some sections of the legal profession (now hopefully corrected) that no application can be made to a court of criminal appeal once its judgment is pronounced, it is not a fatal objection to the grant of special leave in this case. In this case, as a denial of natural justice appears from the concession made in this Court, as the point was covered by the grounds of appeal in the Court of Criminal Appeal and as argument in this Court proceeded upon the tacit assumption that the formal order of the Court of Criminal Appeal had been perfected so that there are now no means of remedying the position save an appeal to this Court, special leave should be granted. 38 In a joint judgment, Deane, Toohey and Gaudron JJ at 482 held that, once Bridges was overruled, procedural fairness required that Mr Pantorno be given an opportunity to call evidence to make good his claim that the drug found in his possession had been for his own use. Until Bridges was overruled, Mr Pantorno's counsel at first instance had been entitled to assume that it was unnecessary to call such evidence. At 483, their Honours found that the Court of Criminal Appeal had failed to provide Mr Pantorno with an opportunity to put that argument. At 484, in the last paragraph of their reasons for judgment, their Honours said: There is one further matter which should be mentioned. It is that the application for special leave to appeal to this Court was argued on the basis that, once judgment had been delivered by the Court of Criminal Appeal or (at the latest) once the judgment had been perfected, the jurisdiction of that Court was exhausted. In a case such as the present where there has been an inadvertent denial of procedural fairness in a criminal matter by a Court of Criminal Appeal, it would ordinarily be preferable that the matter be dealt with by further application to that Court. 39 The principle enunciated in Grierson was affirmed in Postiglione v R (1997) 189 CLR 295. Mr Postiglione and another person had committed offences together while in custody. They were tried and sentenced separately. Before the co-offender had been sentenced, Mr Postiglione's appeal to the New South Wales Court of Criminal Appeal against the severity of his sentence had been dismissed. After the co-offender had been sentenced, Mr Postiglione applied again to the Court of Criminal Appeal and was granted leave to appeal against the severity of his sentence on the fresh ground of the disparity between the two sentences. His second appeal, on that ground, was also dismissed. Mr Postiglione appealed by special leave to the High Court, which allowed his appeal and remitted the case to the Court of Criminal Appeal. The question whether the order of the Court of Criminal Appeal dismissing Mr Postiglione's first appeal against the severity of his sentence had been perfected could not be determined by the High Court. This was one factor in the High Court's decision to remit the case to the Court of Criminal Appeal, which would be in a position to determine whether its earlier order had been perfected, and therefore to determine whether it was open to it to hear Mr Postiglione's second appeal. At 300, Dawson and Gaudron JJ said: If a final order was made perfecting the decision of the Court of Criminal Appeal on Postiglione's first application, the assumption of jurisdiction to entertain his second application and the ensuing appeal was contrary to the decision of this Court in Grierson v The King. It was held in that case that the Criminal Appeal Act 1912 (NSW) does not confer jurisdiction to re-open an appeal which has been heard on the merits and finally determined. A fortiori, in a case where what is involved is the hearing of a second appeal. Pantorno does not suggest otherwise. The view was expressed in Pantorno that an intermediate court of appeal can entertain an application to remedy a denial of procedural fairness whether or not its order has been perfected. Nothing was said as to the jurisdiction of an appellate court to entertain a second appeal when the first has been heard and determined on the merits and an order perfected. 40 It must be remembered that one of the co-authors of this paragraph, Gaudron J, was also a co-author of the passage in Pantorno, quoted in [38], concerning the making of a further application to a court of criminal appeal when there had been an inadvertent denial of procedural fairness. At 315 in Postiglione, McHugh J referred to what Dawson and Gaudron JJ had said on this point and said: the competency of the Court of Criminal Appeal to hear the second appeal is called into question by uncertainty as to whether the first order of the Court of Criminal Appeal was perfected. If the first order was perfected, the appeal against sentence had already been conclusively determined on its merits by the first appeal. In that event, the Criminal Appeal Act 1912 (NSW) does not permit the Court of Criminal Appeal to conduct a further appeal. 41 His Honour cited Grierson as authority for this proposition. At 327 in Postiglione, Gummow J expressed his agreement with Dawson and Gaudron JJ that the matter should be remitted to the Court of Criminal Appeal. His Honour said: However, as I differ from the majority with respect to the substantive merits, different consequences would follow on that remitter to the Court of Criminal Appeal. The result on that remitter, consistently with my conclusions, would be as follows. If it transpired that the orders on the first appeal to the Court of Criminal Appeal were perfected so that the second proceeding was incompetent, the result first reached there would stand. Nevertheless, that outcome would accord with that which would be reached on the merits. If the orders on the first appeal were not perfected, the Court of Criminal Appeal should proceed to achieve the effective dismissal of the appeal to that Court against sentence. I add my agreement to what is said by Dawson and Gaudron JJ with respect to the reliance upon Pantorno v The Queen. 42 At 343, Kirby J expressed himself as being "far from convinced that the Court of Criminal Appeal lacked jurisdiction to hear and determine the second application." Nevertheless, his Honour agreed with the orders proposed by Dawson and Gaudron JJ. 43 It is interesting that, in Postiglione, Dawson and Gaudron JJ at 304-305 (with Kirby J agreeing at 333) expressed the view that a court of criminal appeal should adopt the practice of refusing leave to appeal against sentence, rather than granting leave and dismissing the appeal, in circumstances in which a co-offender remained to be sentenced. The purpose of such a practice would be to permit a second application for leave, if the offender first sentenced wished to raise the question of disparity between his or her sentence and the sentence of the co-offender. A second application for leave would be possible, because the first appeal would not have been determined on the merits. The proposed practice rests on the assumption that the principle established in Grierson is applicable, namely that an appeal heard and determined on the merits cannot be reopened and a second appeal cannot be maintained. 44 The Grierson principle was affirmed yet again by the High Court in Elliott v R and Blessington v R [2007] HCA 51 (2007) 239 ALR 651. Mr Elliott and Mr Blessington had been convicted of murder as juveniles and sentenced to life imprisonment, notwithstanding that life imprisonment was not a mandatory sentence for juveniles, as it would have been for adults convicted of murder. The sentencing judge made a recommendation that they not be released. In 1992, the New South Wales Court of Criminal Appeal granted them leave to appeal against sentence, but dismissed the appeals. In 2006, they applied to the Court of Criminal Appeal for leave to appeal, on the basis that the recommendation for non-release was a sentence or part of a sentence. Leave was refused. The Court of Criminal Appeal found that it had jurisdiction to grant leave to reopen the appeal, on the basis that the 1992 orders had not been entered. Mr Elliott and Mr Blessington appealed to the High Court by special leave. As the case was one in which the orders of the Court of Criminal Appeal in the first appeals had not been perfected, the application of the Grierson principle did not arise, but at [7] the High Court referred to Grierson and mentioned that it had been "held in Grierson that the Criminal Appeal Act does not confer jurisdiction to re-open an appeal which has been heard on the merits and finally determined." In a footnote, the court cited Postiglione, with a specific reference to the passage in the judgment of Dawson and Gaudron JJ at 300, quoted in [39] above. Further, at [31], the court said "It is well settled that a superior court of record...has a power to "reopen" a proceeding until judgment in the case in question has been drawn up, passed and entered." The authority cited for this was DJL. The High Court went on to refer to and apply what Mason CJ said in Autodesk, quoted in [30] above. 45 Grierson, Pantorno, Postiglione, and Elliott and Blessington appear to establish that an intermediate appeal court, such as the Full Court in the present case, has no power to reopen an appeal once it has been determined after a hearing on the merits and the order determining it has been perfected. Nevertheless, the question whether the somewhat ambiguous passages in the judgment of the majority in Jones, quoted in [35], and in the judgment of Deane, Toohey and Gaudron JJ in Pantorno, quoted at [38], have established exceptions to this principle, even where the order determining the appeal has been entered, has been debated in a number of cases in State courts of criminal appeal. There seems little point in entering upon this controversy, because the outcome of it is not determinative of the present case. Cases in which courts of criminal appeal have decided, or suggested, that there is an exception to the Grierson principle when the appeal court has previously denied the appellant procedural fairness, or has failed to deal with all of the grounds of appeal argued, include: R v Lapa (No 2) (1995) 80 A Crim R 398; R v Pettigrew [1997] 1 Qd R 601; R v Saxon (1998) 101 A Crim R 71; R v Gust [2000] NSWCCA 287; R v Giri (No 2) [2001] NSWCCA 234; R v Pallister [2002] WASCA 68 (2002) 131 A Crim R 460; R v Preston [2004] SASC 77 (2004) 145 A Crim R 212; and R v Burrell [2007] NSWCCA 79. Cases in which State courts of criminal appeal have held or suggested that the Grierson principle is absolute, admitting of no such exception, include: R v McNamara (No. 2) [1997] 1 VR 257; R v Reardon (No 2) [2004] NSWCCA 197 (2004) 60 NSWLR 454; R v GAM (No 2) [2004] VSCA 117 (2004) 9 VR 640; R v Nudd [2007] QCA 40; and R v Keogh [2007] SASC 226. The last-mentioned case was the subject of an application to the High Court for special leave to appeal, which was refused on 16 November 2007: Keogh v R [2007] HCATrans 693. At 17 of the transcript in that case, Gleeson CJ, giving the judgment of himself, Gummow and Heydon JJ referred to Grierson and Elliott and said: There has been no decision of this Court, between 1938 and the present time, that casts doubt on Grierson. It has been followed many times by State courts, and its effect has not been overtaken relevantly by legislative amendment. As the Court of Criminal Appeal of South Australia rightly held, it stands as authority against the proposition for which the applicant contends.

The present case 46 If, as seems most likely on the state of the authorities, the Grierson principle admits of no exceptions, Mr Eastman must fail in his application to reopen his earlier appeal to this Court. There is no doubt that the appeal has been heard and determined on the merits, in the sense that the grounds of appeal that were put forward, and the issues that arose in relation to those grounds of appeal were argued fully and dealt with fully. The order reflecting the judgment of the Full Court has been perfected by its entry, in accordance with the provisions of O 36 rr 3 and 7 of the Federal Court Rules. Mr Eastman's appeal from the judgment of the Full Court was unsuccessful. On this view of the Grierson principle, this Court lacks any power to reopen the appeal, on any ground. 47 If there is an exception to the Grierson principle based on what was said by Deane, Toohey and Gaudron JJ in Pantorno, and an appeal can be reopened even though it has been heard and determined on the merits and the judgment has been perfected, because of a denial of procedural fairness, whether inadvertent or otherwise, Mr Eastman has made out no case of any such denial. The concept of procedural fairness, or natural justice as it was formerly called, has two limbs. The first involves the provision by a decision-maker of a proper opportunity to be heard. The content of this obligation on the decision-maker will depend upon the nature of the proceeding. The obligation has never been held to extend so far as to require a decision-maker to provide any person with an opportunity to be heard in relation to a case that the person does not put, or does not wish to put. A later-formed wish to put a case of a kind not put prior to the making of the decision is incapable of giving rise to an argument that there has been a denial of an opportunity to be heard. The second limb of procedural fairness is that which requires the decision-maker to be impartial. There is no contention in the present case that the Full Court was biased, or that a reasonable person might have considered it to be biased, in the sense that it would have decided the case against Mr Eastman whatever arguments might have been put on his behalf. In any event, if Mr Eastman had had a claim of bias on the part of the Full Court, it would have been open to him to make that claim on his appeal to the High Court. The allegation of denial of procedural fairness is unsustainable. 48 If there is an exception to the Grierson principle based on Jones, permitting an appellate court to reopen an appeal, despite the perfection of its judgment, on the ground that it has failed to deal with all of the grounds put and argued on the appeal, that exception is also inapplicable in the present case. For whatever reason, there was no suggestion put to the Full Court that it should deal with any issue of Mr Eastman's fitness to plead at the trial. The absence of any obligation on the part of the Full Court to deal with that issue is confirmed by the view of the majority of the High Court in Eastman. The judgment of the High Court in Eastman precludes Mr Eastman from arguing now that this Court was obliged to deal with the issue of his fitness to plead at the trial. 49 It can be accepted that it is open to an appellate court to reinstate an appeal that has been withdrawn, if the Court is satisfied that, whether by reason of mental infirmity or otherwise, the appellant had no real appreciation of the significance of the act of withdrawing the appeal. See R v Gardiner [1970] VR 278 at 280-281 and R v McNamara (No. 2) [1997] 1 VR 257 at 262. It is tempting to think that, by analogy with that proposition, it should be open to an appellant who has withdrawn a ground of appeal, rather than the entire appeal, whilst not having the capacity to understand the nature of the act of withdrawal, to reinstate that ground, and to argue it at a later date. It is tempting to say that it is a short step from that proposition to the proposition that an appellant who decides not to raise a particular ground of appeal at all, but who lacks the mental capacity to make such a decision, should be permitted to do so at a later date. In truth, the gap between the first of these propositions and the second and third is a substantial gulf. There is no analogy at all. The dismissal of an appeal consequent upon its withdrawal by the appellant gives rise to an interlocutory judgment. It does not involve a determination of the merits of the appeal, after a hearing on the merits. It is open to a court to set aside an interlocutory judgment at a later time, if satisfied that there are good grounds for doing so. The Grierson principle, whether or not subject to any exception of the kind discussed above, stands in the way of adopting the reasoning involved in these three propositions. Once the judgment of an appeal court has been perfected, it is not open to the appellant to seek to reopen the appeal to argue a ground that was never raised. 50 There is nothing about the special character of the issue of fitness to plead at a trial that would warrant a departure from, or the creation of an exception or a further exception to, the Grierson principle. Although it has a special character for some purposes, to which reference is made in [18]-[19], in relation to the reopening of appeals, the question of fitness to plead at the trial stands on exactly the same footing as any other point. If it was not raised when the appeal was heard and determined, and the judgment on the appeal has been perfected, the question of fitness to plead at the trial cannot be raised at a later date by way of reopening the appeal.

Conclusion 51 For the foregoing reasons, Mr Eastman's attempt to reopen his earlier appeal to this Court must fail. The motions the subject of his amended notice of motion must be dismissed. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the applicant: N Clelland SC (pro bono) The applicant in person in reply

Solicitor for the respondent: Director of Public Prosecutions

Date of hearing: 21 - 22 November 2007