High Court of Australia|1938-09-16|Before: McTiernan JJ, Rich J, Starke J, Dixon J

Grierson v R [1938] HCA 45; (1938) 60 CLR 431 (16 September 1938)

On appeal from the Court of Criminal Appeal of New South Wales.

The prisoner in this case after his conviction in December 1932 appealed from his conviction to the Supreme Court of New South Wales sitting as a Court of Criminal Appeal. That appeal was dismissed in March 1933. In August 1933 he applied to this court for special leave to appeal which was refused. He now applies to us for special leave to appeal from the refusal of the New South Wales court to reopen his original appeal or to give him leave to bring a fresh appeal. His application is based upon an allegation that "certain material facts had become known respecting the evidence of one of the material witnesses for the Crown in the trial." The Court of Criminal Appeal was established by the N.S.W., which took the place of provisions for appeals, writs of error, informalities and new trials contained in secs. 428, 470, 471, 472, 473 and 474 of the , these sections being repealed, and was amended by the (No. 10), secs. 32 and 33, and Act No. 2 1929. Sec. 475 of the , however, which provides for an inquiry after conviction, was not repealed. Moreover, the , sec. 26, while preserving the pardoning power of the Governor, enables the Minister of Justice to refer any petition for the exercise of the pardoning power to the Court of Criminal Appeal, and the case is then to be heard and determined as in the case of an appeal by a person convicted; or it enables the Minister to refer any point arising in the case to the court for its opinion thereon. In making the remedies provided by sec. 475 of the and sec. 26 of the available to a prisoner after conviction the legislature has, I think, recognized that the jurisdiction of the Court of Criminal Appeal is confined within the limits of the Act and that when the court has heard an appeal on its merits and given its decision the appeal cannot be reopened.

In my opinion the decision of the Supreme Court was right and this application should be refused.

The motion for special leave to appeal should be dismissed.

I agree entirely with the reasons given by Jordan C.J. for the decision of the Supreme Court of New South Wales sitting as the Court of Criminal Appeal, and I can add nothing to them of any value.

This is an application on behalf of a prisoner for special leave to appeal from a decision of the Supreme Court of New South Wales sitting as a Court of Criminal Appeal. The court refused an application on the part of the prisoner to reopen an appeal which he had brought unsuccessfully from his conviction or to give him leave to bring a fresh appeal. His conviction took place on 15th December 1932, and the appeal which he brought from the conviction was dismissed on 10th March 1933. The ground assigned for his application to reopen the former appeal or to permit a new one is an allegation that facts had become known concerning a material witness for the Crown which might affect the conviction.

The Supreme Court held, in accordance with a decision of the Supreme Court of South Australia (R. v. Edwards [No. 2][1]), 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.

In my opinion this conclusion is correct. The jurisdiction is statutory, and the court has no further authority to set aside a conviction upon indictment than the statute confers. The Criminal Appeal Act of 1912 N.S.W. is based upon the English Act of 1907. It does not give a general appellate power in criminal cases exercisable on grounds and by a procedure discoverable from independent sources. It defines the grounds, prescribes the procedure and states the duty of the court. The statute deals with criminal appeals rather as a right or benefit conferred on prisoners convicted of indictable offences and sets out the kind of convictions and sentences from which they may appeal and lays down the conditions on which they may appeal as of right and by leave and the procedure which they must observe. It limits the time within which appeals and applications for leave to appeal may be brought, subject, however, to a discretionary power in the court to extend the period except where the sentence is capital. The grounds or principles upon which the court is to determine appeals are stated, and the duty is imposed on the court of dismissing an appeal, unless on those principles it determines that it should be allowed. The determination of an appeal is evidently definitive, and a conviction unappealed is equally final. No considerations controlling or affecting the conclusion to be deduced from these provisions are supplied by analogous civil proceedings. Appeal is not a common-law remedy, and proceedings at law are only subject to that remedy by statute (Attorney-General v. Sillem[2]). A second writ of error could not, it would seem, be brought upon the same record after an affirmance upon the first (Lambell v. Pretty John[3]; Horne (or Herne) v. Bushell[4]; Burleigh v. Harris[5]; Winchurch v. Belwood[6]).

In Chancery, rehearings, that is, appeals, were no longer admitted after enrolment of the decree, although an independent bill of review might be filed based upon error apparent or on facts newly discovered (Sidney Smith's Chancery Practice, 7th ed. (1862), vol. 1, p. 809 et seq.). Under the Judicature system an action may be brought to set aside a judgment obtained by fraud, but it is an independent proceeding equitable in its origin and nature (Ronald v. Harper[7], per Cussen J.; Halsbury's Laws of England, 2nd ed., vol. 19, p. 266, and the cases there collected, particularly Jonesco v. Beard[8]). But under that system no court has authority to review its own decision pronounced upon a hearing inter partes after the decision has passed into a judgment formally drawn up (In re St. Nazaire Co.[9]). If the prisoner has abandoned his appeal, the Court of Criminal Appeal in England will exercise a discretion to allow him to withdraw his notice of abandonment, notwithstanding that it operates as a dismissal of the appeal (Halsbury's Laws of England, 2nd ed., vol. 9, p. 273, and the cases cited in note o). But in such a case there has been no determination by the court, and there is no English case in which, after such a determination, an appeal has been reopened or a fresh appeal has been entertained.

Notwithstanding the dismissal of an appeal, the powers conferred by sec. 26 of the Criminal Appeal Act of 1912 N.S.W. and by sec. 475 of the Crimes Act 1900 N.S.W. remain exercisable at the instance of the executive.

I agree with the reasons contained in the judgments of my brothers Rich and Dixon.

Solicitor for the respondent, J. E. Clark, Crown Solicitor for New South Wales.

[2] (1864) 2 H. & C. 581, at pp. 608, 609; 159 E.R. 242, at p. 253.

[3] (1725) 2 Stra. 690; 93 E.R. 786.

[4] (1733) 2 Stra. 949; 93 E.R. 961; 2 Barn. K.B. 253, 260, 262; [1744] EngR 768; 94 E.R. 482, 487, 489.

[5] (1734) 2 Stra. 975; 93 E.R. 978.

[6] [1795] EngR 3945; (1692) 1 Salk. 337; 91 E.R. 296.

[7] [1913] VicLawRp 80; (1913) V.L.R. 311, at p. 318.

(Amendment) Act 1924

Grierson v R [1938] HCA 45;

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Grierson v R [1938] HCA 45; (1938) 60 CLR 431 (16 September 1938)

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