R v G A M

[2004] VSCA 117

Court of Appeal (Vic)|2004-07-02|Before: WINNEKE, P., CALLAWAY and EAMES, JJ.A.

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Source facts

Court

Court of Appeal (Vic)

Decision date

2004-07-02

Before

WINNEKE, P., CALLAWAY and EAMES, JJ.A.

Source

Original judgment source is linked above.

Judgment (97 paragraphs)

[1]

The applicant submits that because this Court treats the application as the hearing of the appeal and, if after full argument on the merits is minded to dismiss the appeal, simply records that the "application for leave to appeal is refused", then there can or should be no bar to the applicant filing a fresh application based on new grounds because the Court' s previous orders are interlocutory in nature and not final. The applicant submits that these propositions are supported by observations made by some of the judges of the High Court in Postiglione v. The Queen[40]. In Postiglione the applicant had pleaded guilty to importation of drugs and had been sentenced by the trial judge to 18 years' imprisonment with a non-parole period of 13 years and 10 months. He had co-operated with prosecuting authorities and had undertaken to give evidence against his co-conspirators including one Savvas. In accordance with the Crimes Act (Cth.) the judge had indicated that, but for Postiglione's co-operation, she would have imposed a sentence of 21 years with a non-parole period of 16 years and 10 months. As generally happens where a prisoner is willing to plead guilty and give co-operation, Postiglione had stood for sentence before his co-accused Savvas. Following the imposition of sentence by the trial judge, Postiglione had applied to the Court of Criminal Appeal (N.S.W.) for leave to appeal against his sentence on the ground of its severity. That appeal was heard and determined before Savvas was brought to justice. The application for leave to appeal was granted by the Court, but the appeal was dismissed. In the High Court proceedings, the Court was informed that no order had been taken out giving effect to the decision of the first Court of Criminal Appeal and it was not clear whether the Court's order had been perfected. In any event, a short time after Postiglione's appeal had been dismissed, Savvas was brought to trial. After he had been convicted and sentenced, Postiglione brought a second application for leave to appeal in the New South Wales Court of Criminal Appeal, complaining of a marked disparity between his sentence and that imposed upon Savvas. That application came on before a differently constituted Court of Criminal Appeal and appears to have been treated as a separate proceeding, not merely as an application to re-open the earlier appeal. The appeal to the High Court was brought from the second decision of the Court of Criminal Appeal (N.S.W.) in which that Court had granted leave on the second application but had dismissed the appeal.

[32]

In his helpful submissions, Mr. Clelland referred us to other authorities which, so he submits, have reflected a movement away from the strict approach taken in Grierson; and which should lead us to conclude that a previous refusal or dismissal, on the merits, of an application for leave to appeal against conviction can be re-opened if fresh evidence is available which casts doubt upon the propriety of the conviction. The authorities to which Mr. Clelland referred do not, in my view, have the effect for which he contends. In R. v. A.[58], the Queensland Court of Appeal entertained, but refused, a second application for an extension of time within which to appeal against conviction. In the course of her reasons for judgment (with which reasons Jones, J. agreed) McMurdo, P. referred to "debate", which had occurred during the course of the application, raising the question of the Court's jurisdiction to entertain the second application for extension of time following the Court's dismissal of the first application. The President referred to Grierson, Smith [No.1] and Smith [No.2] and said that they "suggest this Court has no jurisdiction to determine a second application for an extension of time within which to appeal against conviction". She also referred to Re Sinanovic's Application[59] in which Kirby, J. had decided that the dismissal of an application for special leave to the High Court did not prevent a further application based on "new matters". However, her Honour said that it was unnecessary for her to decide the issue. Davies, J.A. did decide the matter. His Honour said (at para [41]) that what was before the Court was a further application to extend the time within which to appeal; the previous application being "much more clearly an interlocutory order [than a dismissal of an application for leave to appeal] notwithstanding that the [previous] application was dismissed because the Court thought that there were no merits in ... the proposed appeal". His Honour had referred to no fewer than ten decisions given by the Court in the period between 2001 and 2003 in which the Queensland Court of Appeal had applied the principle stated in Grierson. His Honour said[60] (and this is the passage relied upon by Mr. Clelland):

[41]

"Right of appeal in criminal cases 3. A person convicted on indictment may appeal under this Act to the Full Court - (a) against his conviction on any ground of appeal which involves a question of law alone; and (b) with the leave of the Full Court or upon the certificate of the Judge or Chairman of General Sessions before whom he was tried that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or any other ground which appears to the Full Court to be a sufficient ground of appeal; and (c) with the leave of the Full Court against the sentence passed on his conviction, unless the sentence is one fixed by law. Determination of appeals in ordinary cases 4. (1) The Full Court on any such appeal against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the Court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal. Provided that the Full Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred. (2) Subject to the special provisions of this Act the Full Court shall, if they allow an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial to be had. (3) Where a new trial is directed the Full Court may make such order as to them seems fit for the safe custody of the appellant or for admitting him to bail. (4) On an appeal against sentence the Full Court shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefor as they think ought to have been passed, and in any other case shall dismiss the appeal."

[43]

"567. Right of appeal in criminal cases A person convicted on indictment or for a relevant summary offence heard and determined by the County Court pursuant to section 359AA may appeal under this Part to the Court of Appeal - (a) against his conviction on any ground of appeal which involves a question of law alone: Provided that the Court of Appeal in any such case may if it thinks fit decide that the procedure with relation to Crown cases reserved under Part III of this Act should be followed and require a case to be stated accordingly under that Part in the same manner as if a question of law had been reserved and thereupon the provisions of the said Part shall with the necessary modifications apply accordingly;[66] (b) upon the certificate of the judge of the Trial Division of the Supreme Court or the County Court before whom he was tried that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact; (c) with the leave of the Court of Appeal upon any such ground as is mentioned in paragraph (b) or any other ground which appears to the Court of Appeal to be a sufficient ground of appeal; and (d) with the leave of the Court of Appeal against the sentence passed on his conviction, unless the sentence is one fixed by law. 568. Determination of appeals in ordinary cases (1) The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal: Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. (2) Subject to the special provisions of this Part the Court of Appeal shall, if it allows an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial to be had.

* * * * *

(4) On an appeal against sentence the Court of Appeal shall, if it thinks that a different sentence should have been passed or a different order made, quash the sentence passed at the trial and pass such other sentence or make such other order warranted in law (whether more or less severe) in substitution therefor as it thinks ought to have been passed or made, and in any other case shall dismiss the appeal. (5) Despite sub-section (4), on an appeal against sentence the Court of Appeal may, if it thinks that it is appropriate and in the interests of justice to do so, quash the sentence passed at the trial and remit the matter to the trial court. (6) If the Court of Appeal remits a matter to the trial court under sub-section (5) - (a) it may give any directions that it thinks fit concerning the manner and scope of the further hearing by the trial court, including a direction as to whether that hearing is to be conducted by the same or a different judge; and (b) the trial court must hear and determine the matter in accordance with law and any such directions. (7) Where a new trial is directed or a matter is remitted under sub-section (5), the Court of Appeal may make such order as to it seems fit for the safe custody of the appellant or for admitting him or her to bail."