Leave to appeal
100As a member of the Court in GAR v R (No 1) [2010] NSWCCA 163, it is appropriate for me to comment, at least briefly, on the issue of the grant of leave. To the reference by his Honour Giles JA to GAR v R (No 1) , supra, should also be added GAR v R (No 2) [2010] NSWCCA 164 at [10] and GAR v R (No 3) [2010] NSWCCA 165 at [5]. The three judgments were handed down as a suite of judgments dealing with three distinct appeals that were argued at the same time and relied upon the same issue of alleged "fresh evidence". The issue of whether leave to appeal was necessary did not loom large in the submissions of any of the parties in any one of those appeals. Rather, the parties concentrated on whether leave should issue on the merits. Nor did the requirement for leave occupy significant discussion time between the Court and counsel.
101The earlier provisions of s 474C of the Crimes Act 1900 required the Court "to deal with the case so referred in the same way as if the convicted person had appealed against conviction". On one view, a person appeals before leave is granted: see s 5 of the Criminal Appeal Act 1912. By the foregoing section a person appeals under the Act "with the leave of the court or upon certificate of the judge of the court of trial" on any ground involving the question of fact alone, a question of mixed law and fact or any other question. Relevantly and most importantly, the Act prescribes that "a person convicted ... may appeal" either as of right or by leave or certificate. The grant of leave (or the grant of a certificate by the trial judge) relates to "any ground of appeal" which involves questions of fact or mixed law and fact. An appeal by right is against the conviction "on any ground which involves a question of law alone".
102Thus, leaving aside a reference to the Court, such as the present case, any proceeding initiated by an appellant may involve grounds for which there is a right of appeal, grounds for which a certificate of the trial judge has issued and/or grounds for which leave is necessary. It is not all of the "appeal" that is of right; it is the ground of appeal that is either of right or requires leave or a certificate.
103The foregoing analysis renders even more difficult the construction of the relevant provisions. The Court must be extremely cautious in using the Criminal Appeal Rules, promulgated as delegated legislation under the Criminal Appeal Act , as a basis upon which to construe the Act itself. Further, it would seem that the provisions of s 77(1)(b) are more likely to result in the outcome which Giles JA prefers than would a construction of s 474C(1). The reason for that view is that s 77(1)(b) requires that the whole case "be dealt with as an appeal", while s 474C(1) of the Crimes Act , and the ancillary provisions thereto, referred to the case being dealt with in the same way "as if the convicted person had appealed". To the extent that there is a distinction in those words, the latter provision is more consistent with the continued requirement to obtain leave or a certificate.
104In most instances, and certainly in this case, the issue is not a live one. If leave were necessary, then, in my view, leave should be granted.
105Nevertheless, it is necessary, in my view, to deal in a little more detail with the operation of the Criminal Appeal Act and the relevant provisions of the Crimes (Appeal and Review) Act 2001. As earlier stated, an application to the Court of Criminal Appeal to overturn a conviction is allowed by s 5(1) of the Criminal Appeal Act . It grants a right to a convicted person to appeal.
106The use of the word "may" in s 5(1) is facultative, it allows an "appeal" at the discretion of the person convicted, which, if lodged, must be considered by the Court: Re Coldham; Ex Parte Brideson [1989] HCA 2; (1989) 166 CLR 338 at 347-348.
107By operation of s 5(1)(a) of the Criminal Appeal Act , the convicted person may appeal to the Court against conviction on any ground involving a question of law alone. Further, by operation of s 5(1)(b) of the Criminal Appeal Act , the convicted person may appeal to the Court, by leave or after grant of a certificate by the trial judge, against conviction, on any other ground. It is unnecessary to deal with sentence appeals under s 5(1)(c), other than to note that they also require leave of the Court.
108As earlier stated, a document (to use a neutral term) lodged may seek to appeal both conviction and sentence; and may seek to appeal conviction under each or both of s 5(1)(a) and s 5(1)(b). In such a case, the appeal against conviction on a ground or grounds involving a question of law alone is of right and any other ground requires either a certificate of the trial judge or leave of the Court.
109In that way, the Criminal Appeal Act requires that each ground of appeal be treated quite separately. The Act seems to treat each ground as a separate appeal, which must, procedurally at least, be dealt with separately. The foregoing is not intended to suggest, and does not require, separate proceedings.
110Once an appeal is lodged, and leaving to one side the requirement for leave, the Court is required to deal with it: see Brideson , supra. For each ground for which leave is necessary, there must be consideration of the grant of leave.
111In this case, the only basis for the application or petition for review was what has become Ground 13 in these proceedings. The petition for review of the conviction raised only that ground. The Minister of the Commonwealth referred "the case" and the Minister of the State referred "the whole case" to the Court of Criminal Appeal, each under s 77(1)(b) of the Crimes (Appeal and Review) Act .
112The question of leave depends on the proper interpretation of the phrase "the whole case" (s 77(1)(b)) and the meaning of the term "be dealt with as an appeal" (s 77(1)(b) of the Crimes (Appeal and Review) Act ).
113In that respect, it is necessary to consider the judgments in Mickelberg , supra, Mallard , supra, and JJT , supra. In Mickelberg , the High Court was dealing with an appeal from the Supreme Court of Western Australia in which application was made to admit fresh evidence. The Attorney General of New South Wales, intervening pursuant to the s 78B Notice, submitted that, where the Attorney General possessed a power to refer the matter to the Court of Criminal Appeal, then, if fresh evidence could be admitted, it ought not.
114In Mickelberg , the joint judgment of Toohey and Gaudron JJ, recited by Giles JA, above, refers to the whole case. But in that case, the ground of appeal was that the fresh evidence disclosed, and otherwise there existed, an unreasonable verdict (as it would now be called). In those circumstances, it must be necessary for the Court of Criminal Appeal to examine all of the evidence (and the whole of the trial) in order to reach a conclusion.
115Likewise, in Mallard , supra, the High Court was dealing (again in relation to the equivalent Western Australian legislation) with the effect of fresh evidence on the appropriateness of conviction. As a consequence, all of the evidence, "whether 'new', 'fresh' or previously adduced, in the case against, and the case for the appellant" is required to be considered: Mallard , supra, at [10], per Gummow, Hayne, Callinan and Heydon JJ.
116In both Mickelberg and Mallard , "the case" was the unreasonableness of the verdict and/or miscarriage of justice and required all aspects of the trial to be examined. This is also true in JJT , supra, where there was a "change in heart" on the part of one of the witnesses requiring reassessment of the whole evidence.
117In the case now before the Court, no ground was raised in the petition other than a miscarriage of justice based upon the allegation that the judge was asleep. It was not suggested that any ruling was incorrect. Nor was it suggested that the summing-up was deficient. Further, it was not suggested that the result was unreasonable. The petition raised one matter. The justiciable controversy was whether, because the judge had fallen asleep during the trial, there had been a miscarriage of justice.
118In resolving that justiciable controversy, it would be necessary to examine the trial, in its entirety, for evidence of inattentiveness or otherwise supporting (or excluding) the allegation of inattentiveness, or any resulting miscarriage.
119But the controversy is defined by the pleadings, in this case, the petition and the reference. The "whole case" is the whole of that controversy. The reference replaces, where it may otherwise have been required, the grant of leave by the Court or the issue of a certificate by the trial judge.
120After reference, any ground of appeal that is not within the justiciable controversy referred is to be treated in the same way as if it were an appeal under s 5(1) of the Criminal Appeal Act . The alternative construction would lead to some anomalies.
121The Governor or Minister may refuse to consider or otherwise deal with a petition, if the matter complained of has been fully dealt with in the proceedings at trial; has previously been dealt with under the review provisions; or has been the subject of appeal.
122If, as is suggested by some analyses but not accepted by me, the provisions of the Act mandate the consideration of each and every ground raised at the hearing of the appeal but not in the petition, then no inherent or implied power would entitle the Court to ignore a ground. Of course, if the ground were truly frivolous or vexatious, it would take little or no consideration, but there is a significant difference between, on the one hand, the exclusion from consideration of any issue that the Court is mandated to consider and, on the other hand, the determination that the issue is frivolous or vexatious, as a consequence of which the appeal on that ground would be dismissed.
123Further, such a construction would lead to the anomalous result, that grounds of appeal could be raised at hearing, and would be required to be dealt with, which grounds would have resulted in the ground not being considered by the Governor or Minister, pursuant to s 77(3) of the Crimes (Appeal and Review) Act .
124I accept that the foregoing is an interpretation of the legislation that is not universally accepted, and may be against the generally accepted view. But in my view, the Governor or Minister refers the case raised by the petition, and may, in so doing, refer some grounds, but not others. And the Court is required to deal with the whole of the case referred. The "appellant" may raise other grounds (i.e. that were not raised in the petition and referred), but the Court is required to deal with such grounds as if it were an appeal proceeding, namely, to the extent necessary, consider leave for each ground not described by s 5(1)(a) of the Criminal Appeal Act .
125Ground 13 in these proceedings was the basis for the matter referred by the Attorneys, and each other ground, to the extent that it does not involve a question of law alone, requires leave.
126As earlier stated, it is unnecessary to determine the issue finally. If leave were necessary, it should be granted.