What if error is identified following a successful Crown appeal?
34How do those provisions apply where, as here, a reference follows a successful Crown appeal? The appellant's written submissions were elaborate; it is best to reproduce them in their entirety:
"32. This is a novel scenario that has only recently arisen in the context of Muldrock error Pt 7 referrals. The matters to be determined by this Court on such an appeal can be summarised as follows:
(1) Whether the CCA erred in determining that the original sentencing judge made material errors sufficient to warrant a Crown appeal. If the CCA so erred, this Court must overturn the Crown appeal and determine:
(a) Whether the Crown had established in the original CCA that the sentencing judge otherwise erred to the requisite extent to permit a Crown Appeal, in which case this Court must proceed to consider (2) below; or
(b) If the Crown had not established that the sentencing judge otherwise erred to the requisite extent, this Court should reinstate the original sentence.
(2) If this Court determines that the CCA did not err in finding that the sentencing judge materially erred, or else determines that the CCA did so err but that the Crown appeal should have been allowed on another of the Crown's original grounds, it must then consider whether:
(a) It was or is now correct to allow the Crown appeal, having regard to all of the legal principles applicable to Crown appeals in March 2009, including the residual discretion, and
(b) In the case that this Court finds that the Crown appeal should have been allowed on one of the Crown's grounds other than the ground upon which the CCA first allowed the appeal, this Court must also take into account whether the Crown appeal should now be allowed, many years after the original sentence and re-sentence, having regard to the appellant's subjective circumstances since the first appeal, and taking into account the residual discretion.
If neither 2(a) nor 2(b) are satisfied, this Court must overturn the Crown appeal and should reinstate the original sentence.
(3) If, having determined in accordance with (1) and (2) above that, either the CCA did not err in allowing the Crown appeal or else that such an appeal should nevertheless have been allowed on another of the Crown's grounds, this Court must then proceed to determine whether the CCA's sentencing discretion miscarried. If it did (as is conceded in this case) this Court must compare its re-exercise of the sentencing discretion (as though on the Crown appeal put before the CCA, but having regard to the appellant's present subjective circumstances) against the sentence imposed by the CCA, to determine whether some other sentence is warranted in law.
It must then either dismiss the appeal or impose the new sentence accordingly.
33. In other words, this Court is effectively reassessing the original Crown appeal, and it must re-exercise its discretion from the point at which material error in the original CCA decision is identified, informed by the appellant's current circumstances and the residual discretion."
35I do not agree that the concise language of ss 79(1)(b) and 86 leads to such an elaborate outcome.
36Sections 79(1)(b) and 86 bypass the rights of appeal created by s 5 of the Criminal Appeal Act and create what I have termed a quasi-appeal. Although there are some differences, to which I have made reference, both sections require the process to be dealt with "as an appeal". The subject matter of the appeal is the sentence imposed by the earlier Court of Criminal Appeal. It is for the appellant to identify error in that sentence. The identification of error is to be undertaken in light of the grounds advanced by the appellant, and in light of the fact that the sentence was imposed following a Crown appeal. If material error be found, then s 6(3) applies, for s 86 requires the assumption to be made that "the convicted person had appealed against the ... sentence under the Criminal Appeal Act, and that Act applies accordingly." Those words can have but one meaning. They mean (at least in ordinary cases - I am putting to one side provisions such as s 7(1A)) that the power conferred by s 6(3) extends to quashing the sentence imposed following the earlier successful Crown appeal, and imposing the sentence which "is warranted in law", in accordance with what was said in Kentwell v The Queen [2014] HCA 37 at [42]-[43], confirming what Spigelman CJ had said in Baxter v R (2007) 173 A Crim R 284.
37In short, the new process created is not a rehearing of the Crown appeal. It is a new "appeal" by the offender against the sentence imposed following the Crown appeal.
38What follows from the foregoing in the present case is this. Ms Louizos is taken to have appealed under s 5(1)(c) against the sentence imposed by the Court of Criminal Appeal. She does not need leave to prosecute these proceedings. She is entitled to identify grounds which go beyond the matters raised in the inquiry and reference under ss 78 and 79. She points to two matters: Muldrock error (which is conceded) and error in assessing her objective criminality. There is no reason not to consider those grounds on their merits. They are to be assessed as if an appeal. For the reasons given by Fullerton J, Muldrock error is made out, and it was material to the sentence imposed. It follows that the sentence imposed in 2009 must be quashed. Also for reasons given by Fullerton J, the sentence which is warranted in law, having regard to objective seriousness of the offence and her subjective circumstances to date, is a sentence of 12 years imprisonment with a non-parole period of 8 years.
39I agree with the orders proposed by Fullerton J.
40FULLERTON J: On 25 August 2008 the appellant was convicted after trial of soliciting to murder her former husband contrary to s 26 of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 25 years and a standard non-parole period of 10 years.
41On 25 September 2008 she was sentenced to 10 years imprisonment with a non-parole period of 6 years.
42The Crown successfully appealed the sentence under s 5D of the Criminal Appeal Act 1912 (NSW) (Louizos v R; R v Louizos [2009] NSWCCA 71; 194 A Crim R 223). On 20 March 2009 the sentence imposed by the trial judge was quashed and the appellant was re-sentenced to imprisonment for 13 years and 6 months with a non-parole period of 10 years. An appeal against conviction was dismissed.
43Following the decision of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120; 212 A Crim R 254 the appellant sought an inquiry under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) into the sentence imposed by the Court of Criminal Appeal following the successful appeal.
44On 19 December 2013 Latham J was satisfied that in allowing the Crown appeal against sentence and on re-sentence, the standard non-parole period assumed a primary or determinative significance, contrary to the decision of the High Court in Muldrock, as a result of which she referred the matter to this Court pursuant to s 79(1)(b) within Part 7 of the Crimes (Appeal and Review) Act to be dealt with as an appeal under the Criminal Appeal Act.
45Section 79 of the Crimes (Appeal and Review) Act is in the following terms:
79 Consideration of applications
(1) After considering an application under section 78 or on its own motion:
(a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or
(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.
[Emphasis added]
(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.
...
46On receiving a referral, the Court of Criminal Appeal is required by s 86 of the Crimes (Appeal and Review) Act "to deal with the case so referred in the same way as if the convicted person had appealed the conviction or sentence under the Criminal Appeal Act 1912, and that Act applies accordingly".
47One of a number of the issues arising on the appeal is what is meant by a referral of "the whole [of the appellant's] case" under s 79(1)(b). It will also be necessary to consider what is involved in dealing with the case "as if" the appellant had appealed (the approach mandated by s 86 of the Crimes (Appeal and Review) Act) when the proceedings are not brought pursuant to s 5(1) of the Criminal Appeal Act, and where s 6(3) of that Act (a section to which both parties referred as governing the outcome of the appeal) is confined to applications for leave to appeal against sentence under s 5(1).
48Another question that arises on the appeal is whether the considerations that inform the operation of s 6(3) of the Criminal Appeal Act have any practical application where the matter referred under Part 7 of the Crimes (Appeal and Review) Act is from a sentence imposed after a successful Crown appeal, in this case in circumstances where the Court of Criminal Appeal found that the original sentencing discretion had miscarried because of the failure on the part of the sentencing judge to apply the provisions of s 54B of Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) in accordance with R v Way [2004] NSWCCA 131; 60 NSWLR 168, the law that applied in this State before the High Court decision in Muldrock.
49In its submissions filed in advance of the hearing the Crown conceded that in both allowing the Crown appeal and in re-sentencing the appellant, the reasoning and approach of the Court of Criminal Appeal revealed Muldrock error. The Crown submitted, however, that when all relevant statutory requirements and sentencing principles are applied to the exercise of this Court's sentencing discretion in accordance with Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 (including the legal principles applicable to Crown appeals as they applied at that time), this Court would be satisfied that no other sentence other than that imposed by the Court of Criminal Appeal is warranted in law and the appeal should be dismissed in accordance with s 6(3) of the Criminal Appeal Act. The appellant's original filed submissions implicitly accepted that s 6(3) would govern the outcome of the appeal. On the appellant's behalf, however, it was submitted that on re-sentence a lesser sentence is warranted at law and that the sentence originally imposed by the sentencing judge is consistent with such a finding and should be reinstated.
50In the appellant's supplementary submissions, filed with leave after the hearing by senior counsel and junior counsel, neither of whom appeared on the hearing of the appeal, the nature of the jurisdiction that is invoked by a Part 7 referral was reconsidered and a different analysis of the questions that arise in the disposition of the appeal was proffered. The appellant's counsel submitted that if this Court were satisfied that there was Muldrock error in both allowing the Crown appeal against sentence and in the exercise of the Court's re-sentencing discretion (as conceded by the Crown), the decision of the Court of Criminal Appeal must be set aside in its entirety. It was submitted that the question with which this Court is then concerned is not whether some sentence other than that imposed by the Court of Criminal Appeal is warranted at law (the language of s 6(3) of the Criminal Appeal Act) but whether this Court is persuaded that the Crown appeal against the sentence imposed by the primary judge should be allowed in any event, referable to the grounds of appeal formulated and argued in 2009 but not formally dealt with by the Court in allowing the Crown appeal.
51On that analysis it follows that if this Court is not persuaded that the Crown appeal should be allowed (having regard to the legal principles that applied in Crown appeals in 2009, including the residual discretion to dismiss the appeal even if error is identified - see Green v R; Quinn v R [2011] HCA 49; 244 CLR 462; 214 A Crim R 152), it seems to me to follow that this Court must reinstate the sentence imposed by the sentencing judge, since the exercise of the re-sentencing discretion by this Court would simply not arise. Conversely, it also follows that were this Court persuaded that the Crown appeal should be allowed (again having regard to the legal principles that applied in Crown appeals in 2009), then it will be necessary for this Court to consider whether, in the exercise of its re-sentencing discretion, and having regard to the appellant's current subjective circumstances, the original sentence should be disturbed. The appellant submitted that were this Court persuaded that the Crown appeal should be allowed (and that the residual discretion is not to be exercised in the appellant's favour), then a comparison between the sentence this Court is minded to impose and the sentence imposed by the Court of Criminal Appeal in 2009 might be undertaken, not by applying the terms of s 6(3) of the Criminal Appeal Act, but with a view to assisting the Court to arrive at a sentence that is both just and proportionate, having regard to the objective seriousness of her offending and her subjective circumstances at the time of trial and her current circumstances, including the time that has elapsed both before and after the Crown appeal. Since reconsideration of the Crown appeal against the inadequacy of the sentence imposed on this appellant after trial must be decided by this Court referable to the Crown's original grounds of appeal, the arguments advanced by the parties in 2009 and the analysis of those arguments in the judgment of Howie J (with whom McClellan CJ at CL and Grove J agreed) will be of some guidance in reconsidering whether the Crown appeal should be allowed.
52The appellant submitted that after undertaking that exercise this Court would be satisfied that the sentence imposed by the sentencing judge is the appropriate sentence.
53For my part, I am persuaded that the approach to this appeal contended for in the appellant's revised submissions is the correct approach, and that the submissions filed by the parties in advance of the hearing, which focused on the application of s 6(3) of the Criminal Appeal Act, understated or overlooked the principled enquiry that is engaged by the Part 7 referral in this case.
54Leaving to one side for the moment what is comprehended by a referral of "the whole case" in s 79(1)(b) of the Crimes (Appeal and Review) Act as a matter of statutory construction, at least for the purposes of this appeal it is inevitable that the evidence at trial and the findings of the sentencing judge based upon that evidence, will be the subject of consideration on the appeal. Put another way, the question whether the Crown appeal as formulated in 2009 should be allowed and the appellant re-sentenced in accordance with Muldrock principles, including application of the settled principles which constrain the exercise of the jurisdiction under s 5D of the Criminal Appeal Act, cannot be decided without "the whole case" being reviewed. That question must also be decided referable to the legislation that was in force at the time of the Crown appeal, including the "double jeopardy" considerations which applied prior to the amendment to the Crimes (Appeal and Review Act) by the insertion of s 68A in September 2009, given that the transitional provisions provide that s 68A "extends to an appeal that was commenced but not finally determined before the insertion of the section".
55A question which was raised in the hearing of the appeal was whether the appellant was required to file a notice of appeal and, even if not required, whether its effect, if filed, confined the appellant to the ground of appeal. That question arose because of the Crown's opposition to an application by the appellant's counsel for leave to amend the notice of appeal to add, as a ground additional to Muldrock error (the sole ground of appeal as filed), that the Court of Criminal Appeal erred in finding that the objective seriousness of the offending was "significantly above" the mid-range. It was that question which attracted the grant of leave to file supplementary submissions in the course of which the jurisdiction exercised by this Court on a Part 7 referral, and the way that jurisdiction is to be understood where a successful Crown appeal is infected by Muldrock error, was addressed for the first time.
56In developing the argument in support of leave to amend the notice of appeal being granted, the appellant's counsel (then appearing) accepted it was open to the Court of Criminal Appeal to regard the appellant's offending as above mid-range but submitted that the Court was in error in finding it was "significantly" above mid-range. He submitted the appropriate finding was that the offending was somewhere between the mid-range and significantly above it. He further submitted that, to the extent that the appellant's motive in having her former husband killed was able to be discerned from the evidence, it neither aggravated nor mitigated the objective seriousness of her offending, and that Howie J's criticism of the way the sentencing judge dealt with the question of motive, by converting the absence of any finding that the appellant's motive (whatever it might be presumed to be) was an aggravating factor into a mitigating factor, failed to factor in the neutrality of motive in assessment of the objective seriousness in this case. That was then relied upon as an additional basis to challenge the appointment of the objective gravity of her offending at significantly above the mid-range.
57If it be the case that "the whole case" that was before the Court of Criminal Appeal on the Crown appeal is under review on this appeal (which, for the reason set out above, I regard as the proper approach), the question for this Court is whether the sentencing judge's finding of offending at below the mid-range was a sentencing error, as contended for by the Crown in its filed grounds of appeal in 2009, not whether the Court of Criminal Appeal was in error in its assessment of objective seriousness at significantly above mid-range. While this Court might be informed by the consideration given to that question by the Court of Criminal Appeal, it is neither bound by that finding nor is that finding under review for error. The concession by the appellant's counsel at the hearing of the appeal that the offending was above mid-range offending, must however be taken to be the appellant's instructed position. The question remains whether error in the sentencing judge's finding of objective seriousness will justify allowing the Crown appeal and the exercise of the re-sentencing discretion.
58In summary, although the appellant's application for leave to add a further ground of appeal and the Crown's opposition squarely raised the question whether leave to amend the notice of appeal was required (or, for that matter, whether a notice of appeal specifying grounds of appeal was required at all), and although it was that issue which prompted a number of related questions concerning the jurisdiction that is exercised by the Court of Criminal Appeal when a matter is referred to it under Part 7, for the reasons already discussed, in my view the issue of leave to amend the notice of appeal simply does not arise on this appeal.
59If that analysis is misconceived, and it is the sentence imposed by the Court of Criminal Appeal which is under appeal, the question whether it is open to an appellant to raise grounds additional to the "doubt or question" that formed the basis of the Part 7 referral does arise. That question has been considered in a number of recent decisions in this Court where Muldrock error in a sentence at first instance (or following an appeal brought under s 5(1) of the Criminal Appeal Act) was the basis of a Part 7 referral, without any concluded view being reached, either because the Court did not consider it necessary to decide the point (Carlton v R [2014] NSWCCA 14) or because it was not fully argued (Kazzi v R [2014] NSWCCA 73) or it was not raised in argument at all (Imnetu v R [2014] NSWCCA 99).
60Carlton is authority for the proposition that an appellant does not require leave to bring the appeal under s 5(1) of the Criminal Appeal Act, or to seek an extension of time within which to appeal in respect of the matters that were the subject of referral, where the matter is on a referral under Part 7, those procedural requirements effectively being bypassed by the referral itself. At [39] RA Hulme J expressed the view, without the need to decide it, that were an appellant to raise matters on the appeal additional to the aspect of the proceedings that gave rise to the referral, they ought to be considered by the Court unless they were considered to be "frivolous or vexatious", language used in Mickelberg v R [1989] HCA 35; 167 CLR 259 as adopted in the joint judgment of Gummow, Hayne, Callinan and Heydon JJ in Mallard v R [2005] HCA 68; 224 CLR 12; 157 A Crim R 121 at [11]. In Mallard, the High Court was considering the referral of a petition for clemency under s 140(1) of the Sentencing Act 1995 (WA) to the Court of Criminal Appeal for determination under s 689 of the Criminal Code (WA). Section 140(1)(a) provides for the referral of "the whole case to be heard and determined as if it were an appeal by the offender against the conviction or against the sentence (as the case may be)".
61The approach taken by RA Hulme J in Carlton was consistent with the approach of Giles JA (with whom Latham J agreed) in Kearns v R [2011] NSWCCA 103; 213 A Crim R 150, a case which concerned the question whether there had been a miscarriage of justice in the trial of the appellant where it was said that the trial judge was asleep during the proceedings. While that was the only question that grounded the Part 7 referral, further grounds had been added by the time of the hearing of the appeal. As RA Hulme J observed in Carlton at [34], Giles JA cited the High Court in Mallard as authority for the proposition that as "the whole case" was the subject of the referral, the Court was obliged to consider all grounds (unless frivolous or vexatious) and that if leave were required to consider those grounds it ought be granted. In Kazzi at [11], Leeming JA did not consider it necessary to express any final view as to what follows from the fact that it is "the whole case" which is the subject of the referral under s 79(1)(b), his Honour merely noting that although it may not have been necessary to do so, in the case under consideration the appellant filed a notice of appeal where the sole ground of appeal was Muldrock error following a successful Crown appeal and that the written and oral submissions were confined to that issue. Button and RA Hulme JJ did not consider the question at all.
62In Imnetu, Basten JA gave detailed consideration to a number of jurisdictional questions raised by a Part 7 referral, including whether a notice of appeal is required in bringing the appeal, although none of the issues considered by his Honour arose for consideration in the hearing of the appeal or its disposition. Basten JA expressed the view that although, as a matter of statutory construction, the reasoning underlying the decision in Carlton was persuasive, it may be necessary to consider, in a particular case, questions of leave in relation to grounds of appeal not the subject of the enquiry which led to the referral. His Honour went on to say that although the question whether a notice of appeal is required might be covered by the reasoning in Carlton (as distinct from it being adopted as a matter of administrative convenience in the Registry of the Court of Criminal Appeal), he doubted whether the referral of "the whole case", of itself, entitled an appellant to raise grounds of appeal unrelated to the matter which gave rise to a doubt or question leading to the referral. As his Honour saw it, this was seemingly inconsistent with the legislative purpose of Part 7.
63Since both parties filed supplementary written submissions which addressed the question of jurisdiction on a referral under Part 7 of the Crimes (Appeal and Review) Act, I propose to set out the arguments of the parties as to what is comprehended by a referral of "the whole case", albeit in a summary way.
64The Crown submitted that leave was required to amend the notice of appeal despite "the whole case" being referred under s 79(1)(b) and despite it being this Court's statutory duty under s 86 to deal with the appeal on that basis. The Crown submitted that the referral of what was perceived by Latham J to be Muldrock error in the disposition of the Crown appeal in 2009, does not entitle the appellant to expand her case on appeal to this Court as of right. The Crown repeated its earlier submission that the matter referred by her Honour was whether Muldrock error allows for the conclusion by this Court that a lesser sentence is warranted in law. While the Crown accepted that the appellant does not require leave to challenge the sentence on that basis, it submitted that leave is required to argue any additional ground of appeal. This submission seems to me to expose the same error in the Crown's approach to the disposition of the appeal as appears in the submissions filed in advance of the appeal, in that it appears to focus on s 6(3) of the Criminal Appeal Act as governing the outcome.
65The appellant submitted that the terms of ss 79(1), 79(2) and 86 of the Crimes (Appeal and Review) Act mandate that these proceedings be treated "as" an appeal (per s 79(1)(b)) and "as if the convicted person had appealed" thereby attracting the power to dispose of the appeal under the Criminal Appeal Act. The appellant sought to emphasise, however, that because the proceedings are not brought under that Act the procedural steps preliminary to commence an appeal are bypassed by the referral, as is the need to obtain leave to appeal against a sentence under s 5 of the Criminal Appeal Act. Counsel submitted that the language of "the whole case" may be contrasted with a significantly revised version of the legislation (otherwise of the same historical origin) in force in the ACT. In that jurisdiction, the type of matters which may be referred are expressly limited by the legislation. An inquiry following referral is similarly limited to such matters as are stated in the order for inquiry (equivalent to an order for inquiry under s 79(l)(a); see s 427(2) of the Crimes Act 1900 (ACT)). This is in marked contrast with the referral of "the whole case" mandated under the New South Wales Act.
66In short, the appellant submitted that for the Crown to seek to maintain the argument that the only matter referred by Latham J was Muldrock error is to confuse why the appellant's case was referred with what was actually referred. In the exercise of the administrative power under s 79 of the Crimes (Appeal and Review) Act, the appellant submitted (correctly in my view) that Latham J could have done no more than to have referred "the whole" of the appellant's case to this Court since that is the only category of referral her Honour was empowered to make.
67Applying the same reasoning, the appellant submitted that no question of leave to amend the notice of appeal arises on a Part 7 referral since the Court is obliged by the terms of the referral under s 79(1)(b) to consider the whole of the appellant's case, including any issues of fact or law, whether or not raised by the referral, subject only to the Court's inherent jurisdiction to restrict the hearing of the appeal to matters that are not frivolous or vexatious. Further, it was submitted that since the Crown has conceded that in allowing the Crown appeal in this case the Court of Criminal Appeal committed a Muldrock error, it is inevitable that the matters bearing on an assessment of objective seriousness will need to be considered afresh by this Court in determining whether the Crown appeal (absent Muldrock error) would have succeeded in any event and, if so, in the re-exercise of the sentencing discretion that would inevitably follow from that finding. The appellant submitted that the Crown's description of the Court's consideration of that question as "vexatious and frivolous", as they sought to argue in the supplementary submissions, fails to appreciate the nature of the current proceedings and the matters that fall to be determined in them. In that connection, it was submitted that it is inevitable that the appellant's motive in soliciting to have her former husband killed will fall to be considered by this Court, since it forms part of the facts and circumstances of her offending as disclosed by the findings of the primary judge, informed by the consideration given to those findings by the Court of Criminal Appeal.
68Both parties referred to authorities which have considered similar legislative provisions to those in Part 7 of the Crimes (Appeal and Review) Act.
69In my view, the Crown's reliance upon a passage at [10] in the joint judgment of Gummow, Hayne, Callinan and Heydon JJ in Mallard (as extracted below) in support of the proposition that the Court is to merely follow the procedures apposite to an appeal when considering "the whole case as if it were an appeal" and not to reconsider "the whole case", is too narrow a reading of that decision. On a proper reading of the passage at [10], it does not constrain the manner in which an appellant might bring an appeal following a Part 7 referral under the Crimes (Appeal and Review) Act.
70In Mallard, the High Court found that the approach of the Court of Criminal Appeal in Western Australia to considering not merely the evidence at the appellant's trial, but the relevance of that evidence to further evidence upon which the appellant sought to rely, as if the Court were inhibited by the term of the referral, was erroneous. The Court said:
[10] ... Subject only to what we will say later about the words "as if it were an appeal" which appear in s 140(1)(a) of the Act, the explicit reference to "the whole case conveys no hint of any inhibition upon the jurisdiction of the Court of Criminal Appeal on a reference. Indeed, to the contrary, the words "the whole case" embrace the whole of the evidence properly admissible, whether "new", "fresh" or previously adduced, in the case against, and the case for the appellant. That does not mean that the Court may not, if it think it useful, derive assistance from the way in which a previous appellate court has dealt with some, or all of the matters before it, but under no circumstances can it relieve it of its statutory duty to deal with the whole case. The history, as we have already mentioned, points in the same direction. The inhibitory purpose and effect of the words "as if it were an appeal" are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case requires the Court to apply the proviso contained in s 689(1) of the Criminal Code.
[Emphasis added.]
[11] This construction of Pt 19 of the Act is consistent with the approach of Toohey and Gaudron JJ (Mason CJ and Brennan J agreeing) in Mickelberg v The Queen:
"The words of s 21(a) of the Code, so far as they require 'the whole case ... [to] be heard and determined', permit of only one meaning. It is the whole case which must be passed upon by the application of legal principles appropriate to criminal appeals. That being so, the power to exclude matters from consideration is properly to be seen as an aspect of the inherent power of a court to control its own proceedings. That power will authorize the exclusion of issues which are frivolous or vexatious. However, subject to an issue being properly excluded as frivolous or vexatious, it is, in our view, the duty of a court to which there has been a reference of the whole case to pronounce upon the whole case as presented."
[12] It is also consistent with the construction adopted by Lord Diplock (Lords Scarman, Roskill, Brandon of Oakbrook and Templeman agreeing) in R v Chard of like language of s 17(1)(a) of the Criminal Appeal Act 1968 (UK):
"In my view, which I understand is shared by all your Lordships, the words of paragraph (a) of subsection (1) in their natural and ordinary meaning are free from any trace of ambiguity; the person whose case which resulted in his conviction is the subject matter of the reference is to be treated for all purposes as if he were a person upon whom there is conferred by section 1 of the Criminal Appeal Act 1968 a general right of appeal to the Court of Appeal on any ground which he wishes to rely (whether it be of law or fact or mixed law and fact), without need to obtain the prior leave of that court.
...
Since it is the 'whole case' that is referred, this must include all questions of fact and law involved in it ..." (emphasis added)
71In A reference by the Attorney General for the State of New South Wales under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 re the conviction of Frederick Lincoln McDermott [2013] NSWCCA 102; 231 A Crim R 183 was cited by the appellant in support of the construction of s 79(1)(b) advocated in counsel's supplementary submissions.
72In considering the operation of s 76 of the Crimes (Appeal and Review) Act, where application may be made for a review of a conviction or sentence in the exercise of the Governor's pardoning power, Bathurst CJ referred to s 77(1)(b) which provides that after the Governor has considered the petition, the Minister may refer "the whole case" to the Court of Criminal Appeal to be dealt with "as an appeal" under the Criminal Appeal Act. As to the operation of that provision, his Honour said:
[15] There are a number of matters which should be noted. First, a petition to the Governor under s 76 may be made by the convicted person or by another person on behalf of the convicted person. In this case the relevant application was, of course, made by Ms Sheelah on behalf of Mr McDermott. There is no reason from the text of the legislation why such an application cannot be made on behalf of a deceased person.
[16] Second, s 77(1)(b) of the Act empowers the Minister to refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal. There is no requirement for a Notice of Appeal to be lodged or, for that matter, any action to be taken by the convicted person. As Spigelman CJ said in R v Doyle [2001] NSWCCA 252; (2001) 123 A Crim R 151 at [62]-[63] in respect of equivalent provisions in the Crimes Act, s 5 of the Criminal Appeal Act which confers a right of appeal on a person convicted on indictment, effectively is bypassed. Thus, a reference under the equivalent of s 77(1)(b) of the Act in that case both empowered and required the Court of Criminal Appeal under the s 86 equivalent to deal with the matter on appeal, notwithstanding the fact that it was a summary conviction to which the appeal rights conferred by s 5 of the Criminal Appeal Act would not apply...
73Counsel submitted that while it may be preferable, and is certainly practical, for matters relied upon in favour of and against the appellant to be enunciated in advance of the hearing of the appeal (as is customarily the case where directions are made by the Registrar for the filing of submissions), the Court's inherent jurisdiction to control its own proceedings and to ensure procedural fairness may, as in the present case, result in the grant of leave to file further submissions to respond to any matters arising in the proceedings not otherwise ventilated in the filed submissions or identified as an issue in advance of the hearing. However, that does nothing to derogate from the fact that preliminary procedures having been bypassed by the referral, there is no statutory obligation upon an appellant in a Part 7 referral to provide a notice of appeal.
74Finally, the Crown also relied on JJT v R [2006] NSWCCA 283; 67 NSWLR 152. Although that case involved a petition under s 474B in the Crimes Act (since repealed), the predecessor to the referral process in Part 7 of the Crimes (Appeal and Review) Act, the Crown submitted that there were no substantive difference between the two statutory processes since under both, the "doubt or question" is to be dealt with as an appeal under the Criminal Appeal Act on a review of "the whole case". After having referred to "the whole case" and the High Court decision in Mallard, McClellan CJ at CL (James and Simpson JJ agreeing) considered that leave was required to argue a ground of appeal which had been the subject of an application for leave to appeal in the previous appeal, which had been refused. McClellan CJ at CL said:
[87] There are powerful considerations which would point to this Court denying leave. As was said, admittedly in a different context, in Gregory [2002] NSWCCA 199 the interests of justice include consideration of the administration of the law generally, including "considerations supporting the finality of judicial decisions" ...
[88] There is another aspect of the present matter favouring a grant of leave. The appeal comes to this Court following referral by the Minister. Mindful of the breadth of approach to the appeal which the High Court required in Mallard this Court should be slow to refuse leave to raise this ground even after the lapse of time.
75The Crown's reliance upon JJT as support for the proposition that leave to amend the notice of appeal is required also seems to be misplaced. In that case, the Court appears to have assumed leave was required, and granted it accordingly. In those circumstances, no principle of the kind argued by the Crown can be derived from what appears to have been an unchallenged assumption.
76The Crown did not seek to file any submissions in reply directed to the issues as both clarified and reformulated in the appellant's further submissions.
77I am of the opinion that the construction of s 79(1)(b) for which the Crown contends, such that "the whole case" refers only to the reason for which a referral under Part 7 was granted, cannot be supported. It is contrary to binding authority and unduly hinders the statutory duty imposed upon the Court by s 86 for which there is no statutory warrant.