R v G A M

125. With respect to the procedure which had been adopted on the second application to the Court of Criminal Appeal (N.S.W.), Dawson and Gaudron, JJ. - in their joint judgment in Postiglione[41] said:

"In his reasons for judgment on the second application, Badgery-Parker, J. (with whom McInerney and Dowd, JJ. agreed) expressed the view, by reference to Pantorno v. The Queen (supra) that the Court of Criminal Appeal had jurisdiction to entertain that application notwithstanding the earlier application for leave to appeal. However, because the appeal was to be dismissed, it was said that it was unnecessary to decide whether that was so. If the only order to be made was an order dismissing the application for leave to appeal, that may have been correct. However, a decision to grant leave on the second application and to dismiss the appeal then brought involved the assertion of jurisdiction to entertain the second application and, on the assumption that an order giving effect to the decision on the first application was perfected, an assertion of jurisdiction to entertain a second appeal against sentence. If a final order was made perfecting a 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 (supra). It was held in that case that the Criminal Appeal Act 1912 (N.S.W.) 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 a 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 had been heard and determined on the merits and an order perfected." (footnotes omitted)

"Moreover it will later appear that the only order which should have been made on Postiglione's first application was an order refusing leave to appeal, not an order dismissing the appeal."

This matter was again taken up by their Honours towards the conclusion of their judgment where they said[43]:

"Some of the procedural difficulties involved in this case are referable to the fact that Postiglione was sentenced and his application for leave to appeal determined before his co-offender, Savvas, was brought to trial. That is the course usually taken in cases where an accused has agreed to give evidence against a fellow criminal. And there are good reasons why that course should be followed. However, it involves the difficulty, if leave to appeal against sentence is granted, and the subsequent appeal dismissed, that an appellant in Postiglione's position is denied an opportunity to complain of sentence disparity. Ordinarily, it is of no consequence whether an order is made dismissing an application for leave to appeal or whether leave is granted and the appeal dismissed. However, putting aside applications which are frivolous or vexatious, there is no reason in principle to prevent a person bringing a second application for leave to appeal if an earlier application has been dismissed. An application based on matters agitated on a previous application is properly to be regarded as frivolous or vexatious. But that is not the case where an application is based on a sentencing disparity which has subsequently emerged. That is always a possibility in a case of this kind. That being so, the interests of justice require that, if an application for leave to appeal against sentence is to be heard and determined against an applicant before a co-accused is brought to trial, leave be refused, rather than the appeal be dismissed." (footnotes omitted)

133. These observations suggest that their Honours are drawing a distinction between the refusal of an application for leave to appeal, and the formal dismissal of an appeal. Their Honours appear to conclude that a refusal of an application for leave, even after the merits have been considered, is of an interlocutory nature, and will not prevent the re-opening of that application and the appeal in the event that it becomes necessary when further relevant facts are known. Whether their Honours were intending to confine their remarks to applications for leave to appeal against sentence in circumstances where co-accused were to be sentenced at a later time (and were, in essence, suggesting that the orders should not be perfected until the co-offenders fate is known), or whether their Honours were intending their remarks to apply generally to all applications for leave to appeal, be they against conviction or sentence, is not entirely clear to me[44]. Their Honours referred to a number of decisions which discuss special features distinguishing applications for leave or special leave to appeal from other legal proceedings, both criminal and civil in nature. Each of those decisions involves circumstances which are quite different in their nature from those which apply to criminal appellate procedures which derive from the Criminal Appeals Act 1907 (U.K.).

136. Other judges of the Court in Postiglione commented upon the procedural problems which had arisen in the case. McHugh, J.[45] said:

"Second, 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 (N.S.W.) does not permit the Court of Criminal Appeal to conduct a further appeal."

His Honour referred to Grierson v. The King (supra). Gummow, J. said[46]:

"It follows that, if the proceeding in the Court of Criminal Appeal [on the second appeal] was competent, the appeal against sentence was correctly dismissed. ... Further, it may be that the status of the first appeal was such as to render the later proceeding incompetent."[47]

His Honour disagreed with the majority in respect to the substantial merits of the appeal, but considered what the consequences of the remitter to the Court of Criminal Appeal (N.S.W.) should be. He said[48]:

"If it transpired that the orders on the first appeal were perfected so that the second proceeding was incompetent, the result first reached there would stand ... ."

His Honour added his agreement to what had been said by Dawson and Gaudron, JJ. with respect to the "reliance upon Pantorno v. The Queen".

"This Court was informed that the orders of the Court of Criminal Appeal following the first appeal were not perfected. In the second application that Court certainly purported to exercise and affirm its jurisdiction. Both parties before this Court supported that conclusion. In the nature of complaints of disparity in sentencing (and as the facts of this case demonstrate) it will quite often be the case that the disparity which is said to give rise to the justifiable sense of grievance is not finally known until a considerable time after the complaining prisoner was sentenced. Where the final sentencing of a co-offender, or of another relevant offender, remain outstanding it may well be sensible for a Court of Criminal Appeal to adopt the expedient proposed by Dawson and Gaudron, JJ. in their reasons. I shall assume that there was no jurisdictional barrier to the appellant's second application. I shall return to that question in determining the orders which should be made."

Having discussed the merits of the application, Kirby, J. returned - as he said he would - to the procedural problems which had arisen in the second appeal. His Honour said[50]:

"Dawson and Gaudron, JJ. have explained the procedural errors which may have occurred in the Court of Criminal Appeal. This Court has not received submissions or formal evidence about these possible errors. I am far from convinced that the Court of Criminal Appeal lacked jurisdiction to hear and determine the second application. However, in the circumstances, the desirable course is the one which their Honours propose."

149. One thing appears to be clear from the various judgments given in the case of Postiglione; and that is that the authority of the decision in Grierson has not been disturbed. As Wood, J. pointed out in the course of his judgment in Saxon[51]:

"If any residual doubt existed after Pantorno as to the nature or extent of the relevant power, then that has, in my view, been unequivocally removed by the decision of the High Court in Postiglione ... ."

His Honour then referred to the remarks made by Dawson and Gaudron, JJ. in Postiglione[52]; to remarks of McHugh, J.[53]; and to remarks of Gummow, J.[54]. His Honour continued:

"For the reasons mentioned, I am of the view that the present case falls squarely within the decision in Grierson. The facts are not distinguishable, and recent authority in the High Court has neither weakened that decision nor opened the gate any wider for the reconsideration of an earlier appeal, or for the mounting of a second appeal. Nor does that authority, or other decision of any intermediate Court of Appeal, support the existence of some general discretion to intervene in the interests of justice."

155. In the light of the review which I have made of the authorities in England and in this country, I do not accept the submission of counsel for the applicant that such authorities bind this Court to draw a distinction between the power of an appellate court to re-open a criminal appeal which has been dismissed on the merits and an application for leave which has been refused after argument upon the merits. Counsel has relied, for the existence of such a distinction, upon the various judgments delivered in Postiglione (supra), particularly the joint judgment of Dawson and Gaudron, JJ. where their Honours state that there is "no reason in principle to prevent a person bringing a second application for leave to appeal if an earlier application has been dismissed". However, neither McHugh, J. nor Gummow, J. expressed any view supporting the validity of such a distinction; and Kirby, J. expressed the view that, in circumstances where the sentencing of the co-offender remains outstanding, it may "well be sensible to adopt the expedient proposed by Dawson and Gaudron, JJ. in their reasons". (my emphasis). However, his Honour further stated that he was prepared to assume that there was, in the case at hand, "no jurisdictional barrier to the appellant's second application". His Honour did not find it necessary to refer to Grierson v. The King.

158. In the light of the peculiar circumstances which existed in Postiglione, and the various reasons given by the Judges to resolve them, I cannot accept the submission of the applicant's counsel that the decision binds this Court to conclude (contrary to Grierson v. R.) that an application for leave to appeal against conviction which has been dismissed or refused on its merits can be re-opened on the basis of "fresh evidence"; but that an appeal against conviction, which has been dismissed on the merits, cannot. That would truly be "an expedient" because it would wholly depend upon the words used by the appellate court in disposing of the application. I should also add that, as a matter of practice in this State, petitions for mercy (generally on the basis of "fresh evidence") are - and have been - presented to the Executive pursuant to s.584 Crimes Act following the conviction and sentence of persons charged with indictable offences; and the dismissal or refusal thereafter (on the merits) of their applications for leave to appeal[55].

161. Mr. Clelland advanced other submissions in support of the application. In further support of his submission that there is a distinction to be drawn between the dismissal of an application for leave to appeal, and the dismissal of a "substantive appeal", he relied upon the decision, in the Queensland Court of Appeal, of R. v. Pettigrew[56]. The Court had been prepared to re-open an application for leave to appeal against sentence where the Court's orders on the initial application had been erroneously influenced by what was conceded to be incorrect factual information given to the Court as to the length of current sentences which the applicant was undergoing. The Court concluded that it had the power to correct its mistake by virtue of s.8 of the Supreme Court of Queensland Act 1991, which is part of the statute law of Queensland. Sub-section 8(1) of that Act provides that:

"The Court has all jurisdiction that is necessary for the administration of justice in Queensland."

It had been submitted to the Court that, by reason of this sub-section, the principle established by the High Court in Grierson v. R. was inapplicable. Pincus, J.A., with whose reasons Mackenzie, J. agreed, said (at p.17):

"The point is a narrow one and is whether, where this Court disposes of a matter on the basis of a mistake with respect to the content of orders previously made by the Supreme Court, or indeed any court, it has jurisdiction in an appropriate case to correct its mistake. The case is not one where the error involved any disputed or disputable question of fact; it was merely as to the content of orders made by courts of this State."

His Honour concluded that the matter was covered by s.8 of the Supreme Court of Queensland Act. The Court's conclusion has nothing to say about this Court's jurisdiction to re-open its decision finally disposing of an application for leave to appeal against conviction which has been determined on the merits.

168. Mr. Clelland also relied upon observations made by Fitzgerald, P. in the same case (at 14) in which his Honour expressed the opinion that:

"... the power to prevent injustice clearly includes power to set aside an interlocutory order refusing leave to appeal after that order has been perfected when the interlocutory order was based upon a factual misapprehension, shared by the parties and the Court, derived from ambiguity in the order of a lower court."

His Honour acknowledged that the matter before the Court was "significantly different" from Grierson's case and the earlier Queensland cases of Smith[57]. However, if his Honour was suggesting that the dismissal or refusal of an application for leave to appeal upon the merits against a conviction is to be regarded as interlocutory, in the sense that it can be re-opened upon fresh evidence, then I respectfully differ from that view.

173. 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):

"The principle stated in Grierson is based on the statutory nature of an appeal and the finality of a decision given on such an appeal. Moreover it was said in that case to apply equally to a dismissal on the merits of an application for leave to appeal."

"The application of this principle to an earlier decision dismissing an application for leave to appeal is less clear, notwithstanding the statement by Dixon, J. in Grierson that it does apply. Such an order appears on its face to be an interlocutory one notwithstanding that it may be on the ground that the appeal would fail on its merits. However, the principle was applied to such a case by the Court of Criminal Appeal twice [his Honour referred to Smith [No.1] and Smith [No.2]], and appears to have been accepted by this Court in R. v. Pettigrew [supra], though the Court held that it had a limited power to reconsider such a decision. In my view there is a great deal to be said for the application of this principle to applications for leave to appeal against sentence in this Court as those applications are, in practice, treated as appeals ..."

179. There is nothing in the reasons for decision given in R. v. A. which, in my opinion, disturbs the authority of Grierson. It is of interest to note that there was no reference in the closely reasoned judgment of Davies, J.A. to the decision in Postiglione (supra). In stating that the dismissal of an application for leave to appeal, albeit on its merits, "appears to be an interlocutory one", Davies, J.A. drew from authorities in the area of the civil law such as Licul and Ors. v. Corney[61] and Hall v. Nominal Defendant[62]. However, it is apparent from the authorities to which I have previously referred that the statutory appellate rights contained in Part VI of the Crimes Act are sui generis and not to be construed by reference to analogous civil proceedings[63].

182. Finally Mr. Clelland submitted that the Court's capacity to re-open the application, or to hear a further application, so as to receive "fresh evidence" demonstrating a miscarriage of justice ought not be frustrated because of the time at which the evidence becomes available. The Court's power to do so, he submitted, should not depend on whether the Court's previous orders have been perfected or whether the previous determination was the dismissal of an appeal or application for leave. The short answer to these submissions, in my view, is that the Court's powers under s.574 of the Act to receive fresh evidence presupposes the existence of a competent application or appeal; it is not an independent "trigger" of a further appeal or application. Secondly, the Court's power to re-open an appeal or application which has been determined on the merits is exhausted once that

determination has been perfected. The limits derive from the construction of the statutory provisions found in Part VI of the Crimes Act, including as they do the "prerogative powers" contained in s.584. The applicant is not without remedy because he can petition under that section.

186. For the reasons given the application for extension of time, in my opinion, should be refused. The applicant, as I have earlier said, is not without remedy. He would be wise, in the events which have now occurred, to exercise the rights given under s.584 of the Crimes Act.

190. I have had the considerable advantage of reading in draft the reasons for judgment prepared by the learned President. I agree with his Honour that this Court has no power to re-open, on the grounds of fresh evidence, either an appeal or an application for leave to appeal[64] that has been determined on the merits and that this application for an extension of time within which to give notice of a second application for leave to appeal against conviction should be refused.[65]

193. Sections 3 and 4 of the Criminal Appeal Act 1914, which was based on the English Criminal Appeal Act 1907, provided:

"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."

197. Section 3 specified the gateways to an appeal and s.4 dealt with the powers and duties of the Full Court on an appeal. The same distinction is maintained in ss.567 and 568 of the Crimes Act 1958. Those sections now provide:

"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."

201. The "appeal against conviction" referred to in s.568(1) and (2) is not an application. It is an appeal that has been brought as of right pursuant to s.567(a) or upon the certificate of the trial judge pursuant to s.567(b)[67] or with the leave of the Court of Appeal granted pursuant to s.567(c). The "appeal against sentence" referred to in s.568(4) and (5) is similarly not an application. It is an appeal brought with the leave of the Court of Appeal granted pursuant to s.567(d).[68] That is why, where an application for leave to appeal against conviction or sentence is heard by the Court of Appeal, as opposed to a single judge of appeal, and succeeds, the opening sentences of the order are:

"The application for leave to appeal against [conviction or sentence, as the case may be] is granted. The appeal is treated as instituted and heard instanter and is allowed."

Those words satisfy the condition precedent in s.567(c) or (d), as the case may be, and enliven the jurisdiction of the Court to entertain and deal with the appeal pursuant to s.568.

206. Although there are other provisions in Part VI which distinguish between applications for leave to appeal and appeals[69], the distinction is rarely of importance in practice. The Court treats applications for leave to appeal, except those heard by a single judge of appeal pursuant to s.582, as the hearing of an appeal. Where the application fails, even if the grounds were reasonably arguable, our practice is to refuse leave to appeal, frequently expressed as "dismissing the application"[70], rather than to grant leave to appeal but dismiss the appeal. Nevertheless, in some cases the distinction is important. Section 566 defines "sentence" to include, among other things, a restitution order made pursuant to s.84 of the Sentencing Act 1991. In R. v. Nousis[71] the Court exercised its discretion to refuse leave to appeal against a restitution order pursuant to s.567(c) because of the injustice that appellate intervention would have occasioned to a third party which had changed its position in good faith in reliance on the order. Had a single judge of appeal granted leave pursuant to s.582, the Court might have had to rescind that leave[72], for the restitution order had been wrongly made and, on an appeal, the mandatory terms of s.568(4) may have left the Court with no option but to intervene.

209. I do not stay to consider at any length what the position might have been in the absence of authority. It is of limited assistance to say that an appeal, or application for leave to appeal, against conviction or sentence is statutory. All appeals are statutory. When a statute uses expressions such as "leave to appeal" and "appeal" it may be supposed that the legislature intends them in their ordinary sense. On the civil side, there are important legal and practical differences between applications for leave to appeal and appeals.[73] True it is, nevertheless, that, even in the absence of authority, s.584, which is in similar terms to s.19 of the Criminal Appeal Act 1914, might have been held to throw light on the meaning and effect of those terms in Part VI.[74] It is unprofitable to consider whether the reference by Dixon, J. to "an appeal or application for leave to appeal" in Grierson v. R.[75] was obiter. The authorities here and in England compel the conclusion at [25] and [42] above. It should also be said that the result is conducive to the practical administration of criminal justice.

213. I agree that the application for an extension of time to file an application for leave to appeal should be refused, for the reasons stated by the learned President.

[1] R. v. G.A.M. [2003] VSCA 185.

[2] R. v. McNamara (No.2) [1997] 1 V.R. 257 at 268.

[3] The 1998 Rules will be replaced, as and from 1 July 2004 by the Supreme Court (Chapter VI ...) Rules 2004. Rule 2.07.1 is in the same form as Rule 2.07(1) of the 1998 Rules.

[4] See s.572(1) Crimes Act.

[5] R. v. G.A.M. [2003] VSCA 185 at para [25].

[6] [1997] 1 V.R. 257 at 268.

[8] [1957] 1 W.L.R. 841 at 842.

[9] [1969] 2 Q.B. 574.

[11] See, for example, R. v. Pitman (1916) 12 Cr.App.R. 14; R. v. Healey (1956) 40 Cr.App.R. 40; R. v. Moore (supra).

[12] It should be noted that Rule 2.10(2) of the Supreme Court (Criminal Procedure) Rules 1998 (Vic.) similarly provides that, in this State, "an appeal or application shall be taken to be dismissed on the date the notice of abandonment is filed".

[13] S.34 is the equivalent of s.584 Crimes Act (Vic.).

[14] [1988] 1 Q.B. 462.

[16] [1970] VicRp 34; [1970] V.R. 278 at 280.

[18] [1971] VicRp 57; [1971] V.R. 455.

[19] In Saxon (1998) 101 A.Crim.R. 71 at 81, Smart, J. reserved for future consideration the question whether the Court of Criminal Appeal could re-open an appeal determined on its merits in the event that it was revealed that the conviction was obtained by fraud.

[20] [1931] S.A.S.R. 376.

[24] (1937) 54 W.N. (N.S.W.) 144.

[26] I note that s.26 of the Criminal Appeal Act 1912 and s.475 of the Crimes Act 1900 are the equivalent of s.584 Crimes Act (Vic.).

[27] Grierson v. The King [1938] HCA 45; (1938) 60 C.L.R. 431.

[30] Court of Appeal (Vic.), unreported, 18 September 1997, per Tadgell, J.A. at page 11.

[31] (1989) 42 A.Crim.R. 189 at 191.

[32] (1991) 52 A.Crim. R. 298 at 300.

[33] (1998) 101 A.Crim.R. 71 at 74 ff.

[34] (1988) 37 A.Crim.R. 1 at pages 17-18.

[35] (1998) 101 A.Crim.R. 71 at 76.

[36] [1989] HCA 18; (1989) 166 C.L.R. 466; 38 A.Crim.R. 258.

[37] Mason and Brennan, JJ. at page 474; and Deane, Toohey and Gaudron, JJ. at page 484.

[40] [1997] HCA 26; (1997) 189 C.L.R. 295.

[44] The authorities to which I have referred, and which preceded and include Grierson v. The King, make it clear, in my view, that all applications for leave, and appeals, - when decided on the merits and the orders perfected - are final. However there may be a query whether an application to a single judge pursuant to s.582 Crimes Act (Vic.) results in a final order in the event that the applicant fails to make an election within the time prescribed by the Rules.

[47] His Honour referred to Grierson v. The King.

[55] cf. Re Matthews and Ford [1973] VicRp 18; [1973] V.R. 199 at 200; Re Ratten [1974] VicRp 26; [1974] V.R. 201 (application for leave dismissed by Full Court [1971] VicRp 10; [1971] V.R. 87; Re Knowles [1984] VicRp 67; [1984] V.R. 751 at 759; R. v. M.H.R. [2000] VSCA 44; [2000] 1 V.R. 119 at 125.

[56] [1996] QCA 235; (1996) 89 A.Crim.R. 1.

[57] [1968] QWN 50; [1969] QWN 10.

[58] [2003] QCA 445.

[59] [2001] HCA 40; (2001) 180 A.L.R. 448.

[61] [1976] HCA 6; (1976) 180 C.L.R. 213.

[62] [1966] HCA 36; (1966) 117 C.L.R. 423.

[64] The President's judgment and mine are confined to applications determined by the Court of Appeal, as opposed to those determined by a single judge of appeal pursuant to s.582 of the Crimes Act 1958. I say nothing about the latter, even where no notice of election to have the application determined by the Court of Appeal is received by the Registrar under Rule 2.08.1.

[65] The Rules contemplate that both a notice of application for leave to appeal and a notice of application for extension of time should be filed at the same time but the practice of the Court, correctly in my opinion, is to disregard the application for leave to appeal if the extension is refused.

[66] This proviso corresponds with the second part of s.20(2) of the Criminal Appeal Act 1914. The provision corresponding with the first part of that sub-section is s.571.

[67] In practice appellants rarely use s.567(a) nowadays and s.567(b) is a dead letter.

[68] In either case, s.567(c) or (d), the leave of the Court of Appeal may have been granted by a single judge of appeal pursuant to s.582. The condition precedent in s.567 is satisfied because, as the language of s.582 makes clear, the single judge of appeal exercises the power of the Court of Appeal to give leave.

[69] See, for example, ss.576 and 582. In reading Part VI it is important to remember that s.566 defines "appellant" in words wide enough, and intended, to include an applicant for leave to appeal.

[70] R. v. Bolton and Barker [1998] 1 V.R. 692 at 700 line 2 and fn. 26. Strictly speaking, an application should be "granted" or "refused" and an appeal should be "allowed" or "dismissed".

[71] [2004] VSCA 107.

[72] It could have done so because a single judge of appeal, unlike a judge at first instance, exercises the powers of the Court of Appeal. Compare Sanofi v. Parke Davis Pty. Ltd. [No. 1] [1982] HCA 9; (1982) 149 C.L.R. 147 at 153 and Coles Myer Ltd. v. Bowman [1995] VICSC 219; [1996] 1 V.R. 457 at 460.

[73] Both the grant of leave and the refusal of leave are usually interlocutory. See Lamac Developments Pty. Ltd. v. Devaugh Pty. Ltd. [2002] WASCA 245; (2002) 27 W.A.R. 287 at [32], [56]-[57], [70]-[72] and [121]-[128].

[74] R. v. Edwards (No.2) [1931] S.A.S.R. 376 at 380_; R. v. Grierson_ (1937) 54 W.N.(N.S.W.) 144; Grierson v. R. [1938] HCA 45; (1938) 60 C.L.R. 431 at 434 and 437; R. v. Grantham [1969] 2 Q.B. 574 at 580.