CAN THE COURT OF CRIMINAL APPEAL RE-OPEN A CASE AFTER ITS ORDERS HAVE BEEN PERFECTED?
23 In Grierson v. The King (1938) 60 CLR 431, the High Court of Australia held that the jurisdiction of the Court of Criminal Appeal of New South Wales is confined within the limits of the Criminal Appeal Act 1912, and that therefore the Court has no jurisdiction to re-open an appeal which it has heard upon the merits and finally determined. At pp.436-7, Dixon J (with whom McTiernan J agreed) said this:
Under the Judicature system an action may be brought to set aside a judgment obtained by fraud, but it is an independent proceeding equitable in its origin and nature ( Ronald v. Harper [1913] VLR 311 at 318, per Cussen J.; Halsbury's Laws of England, 2nd ed., vol. 19, p. 266 and the cases there collected, particularly Jonesco v. Beard [1930] AC 298). But under that system no court has authority to review its own decision pronounced upon a hearing inter partes after the decision has passed into a judgment formally drawn up ( In re St. Nazaire Co . (1879) 12 ChD 88). If the prisoner has abandoned his appeal, the Court of Criminal appeal in England will exercise a discretion to allow him to withdraw his notice of abandonment, notwithstanding that it operates as a dismissal of the appeal (Halsbury's Laws of England, 2nd ed., vol.9, p.273, and the cases cited in note o). But in such a case there has been no determination by the court, and there is no English case in which, after such a determination, an appeal has been reopened or a fresh appeal has been entertained.
24 However, it was submitted for Mr. Reardon that there are qualifications to that principle.
25 Before considering the most directly relevant cases, I would note that in State Rail Authority of New South Wales v. Codelfa Construction Pty. Limited (1982) 150 CLR 29 at 38, Mason and Wilson JJ said they had no doubt that the High Court had jurisdiction to entertain an application to vacate orders which had been perfected. However, they referred to the cases of Rajunder Narain Rae v. Bijai Govind Singh (1839) II Moo Ind App 181, 18 ER 269 and Venkata Narsimha Appa Row v. Court of Wards (1886) 11 App Cas 660; and these cases suggest that there is a special exception to the rule against re-opening perfected judgments "to prevent irremediable injustice being done by a Court of last resort" (Rae's Case at 220, 18 ER at 284). That is, the exception being referred to in this case does not apply to intermediate courts of appeal.
26 The possibility of a qualification to the principle stated in Grierson was raised in Jones v. The Queen (1989) 166 CLR 409. In that case, on an appeal against conviction to the Court of Criminal Appeal in Tasmania, an appellant advanced a number of grounds. The Court upheld two grounds, quashed the conviction and directed that there be a new trial; but did not deal with other grounds the acceptance of which would have entitled the appellant to a verdict of acquittal. The High Court of Australia held that the Court of Criminal Appeal had failed to dispose fully of the appeal, and ordered that the matter be remitted to that court to complete the hearing and determination of the appeal. At pp.414-5, Mason CJ and Brennan, Dawson and Toohey JJ said this:
The order of the Court of Criminal Appeal has been perfected. Counsel for both parties in this Court approached the application for special leave on the footing that it is now too late for the applicant to move the Court of Criminal Appeal to hear and determine the grounds left undetermined. If that be right - and in this case we should assume but not decide that it is - it is regrettable that when the omissions from the reasons for judgment in the Court of Criminal Appeal become known and before the formal order of the Court was perfected such an application was not made to the Court. Now, in order to ensure that the applicant's appeal to the Court of Criminal Appeal is fully determined, it is necessary to vary that Court's judgment and to remit the matter for further hearing and determination.
27 Thus the majority in that case left open the possibility that, even after an order has been perfected, a Court of Criminal Appeal may be able to re-open the case to hear and determine grounds of appeal left undetermined.
28 The question was adverted to again in Pantorno v. The Queen (1989) 166 CLR 466. That was a case where special leave to appeal to the High Court was sought on a ground raised for the first time in that Court. It was argued that this was a point that emerged only when the Court below pronounced its judgment.
29 At pp.474, Mason CJ and Brennan J said this:
Failure to argue a point before a court of criminal appeal presents a considerable obstacle to an applicant who seeks special leave to argue it in this Court. Even if the point emerges clearly only when a court pronounces its judgment, it should be appreciated by counsel who receive judgment that they are under a duty to draw the court's attention to issues which, in the light of the judgment, require further consideration by that court and to move the court to consider any such issues before the formal order of the court is perfected. On occasions, a court of criminal appeal may have to give further consideration to issues which were relegated to the margin of attention during the argument, though it is not required to consider new grounds which counsel abstained from raising on the appeal. In the present case, the failure of counsel to seek further consideration of the natural justice issue once Bridges was overruled by the Full Court is a factor which counts against the grant of special leave. However, as there seems to have been an erroneous view in some sections of the legal profession (now hopefully corrected) that no application can be made to a court of criminal appeal once its judgment is pronounced, it is not a fatal objection to the grant of special leave in this case. In this case, as a denial of natural justice appears from the concession made in this Court, as the point was covered by the grounds of appeal in the Court of Criminal Appeal and as argument in this Court proceeded upon the tacit assumption that the formal order of the Court of Criminal Appeal had been perfected so that there are now no means of remedying the position save an appeal to this Court, special leave should be granted.
30 At p.484, Deane J, Toohey J and Gaudron J said this:
There is one further matter which should be mentioned. It is that the application for special leave to appeal to this Court was argued on the basis that, once judgment had been delivered by the Court of Criminal Appeal or (at the latest) once the judgment had been perfected, the jurisdiction of that Court was exhausted. In a case such as the present where there has been an inadvertent denial of procedural fairness in a criminal matter by a Court of Criminal Appeal, it would ordinarily be preferable that the matter be dealt with by further application to that Court. In view of the shortness of the minimum sentence to be served by the applicant, however it would be inappropriate for this Court now to relist the matter for further argument so that the validity of the assumption (about which we express no view) that the Court of Criminal Appeal now lacks jurisdiction could be examined.
31 There was further reference to this question in Postiglione v. The Queen (1997) 189 CLR 295 at 300, per Dawson and Gaudron JJ:
If a final order was made perfecting the 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 (9). It was held in that case that the Criminal Appeal Act 1912 (NSW) 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 the hearing of a second appeal (10). 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 (11). Nothing was said as to the jurisdiction of an appellate court to entertain a second appeal when the first has been heard and determined on the merits and an order perfected.
32 The reference in note (11) was to the passages from Pantorno set out above. At p.327, Gummow J expressed his agreement with this passage. However, at p.315, McHugh J appeared to consider that the matter was foreclosed by Grierson.
33 In Lapa (No.2) (1995) 80 ACrimR 398, the Court of Criminal Appeal had delivered judgment on 8 August 1994, and the appellant's solicitors had written to the Court on 27 October 1994 claiming that the Court had not determined one of the grounds of appeal. The Court found in that case that the order of 8 August 1994 had not been formally entered when the application was made on 27 October 1994, it gave judgment on the application on the assumption that the order was perfected thereafter before this judgment was given. The Court of Criminal Appeal held that it could review, correct or alter its judgment at any time until its order or judgment had been perfected; and that power was not lost by the administrative act perfecting the order taking place after the application to re-open had been made. Clarke JA (with whom Handley JA and Sully J agreed) referred to Jones and Pantorno, but nevertheless concluded that once an order has been perfected, subject to rules of court and possible exceptions concerning subsidiary matters, a court has no power to reconsider its decision and the judgment can only be reviewed on appeal, referring to Bailey v. Marinoff (1971) 125 CLR 529. This case was decided before Postiglione.
34 In R. v. McNamara (No.2) [1997] 1 VR 257, it was argued before the Court of Appeal of the Supreme Court of Victoria that an appeal could be re-opened after it had been fully heard and disposed of on the merits, in circumstances where one of the grounds of appeal had not been argued on the appeal and thus had not been determined. The Court (Winneke P, Charles JA and Southwell AJA) held that the principle in Grierson applied; and held that, even if there were jurisdiction to re-open the appeal, it should not be exercised in this case because there had not been any denial of procedural fairness or error of a nature which might entitle an applicant to relief. The Court referred to Pantorno; but again, this case also was decided before Postiglione.
35 Thus, it would seem that, at least until after this decision, the weight of authority was to the effect that while a denial of procedural fairness would be a ground for re-considering a decision that had been delivered, if application was made before the order was perfected, there was no jurisdiction to do so if the application was made subsequently. However, there are two later cases in the New South Wales Court of Criminal Appeal suggesting the contrary.
36 First, there is Saxon (1998) 101 ACrimR 71. In that case, the appellant had been convicted, and a previous appeal against conviction had been dismissed, and the order of the Court perfected. The appellant sought to bring a further appeal on the basis that a co-accused had now given a statutory declaration which exculpated him. The Court of Criminal Appeal (Wood, Smart and Sperling JJ) dismissed this attempted further appeal, relying on Grierson. However, at p.76, Wood J, which whom Smart and Sperling JJ agreed, said this:
Unless Grierson has been qualified in some fashion this Court has no option other than to follow it: Jacob v Utah Construction & Engineering Pty Ltd (1966) 116 CLR 200 at 207 per Barwick CJ. Far from having been questioned, its authority has been recognised in a number of subsequent decisions in New South Wales and in those states where a similar point has arisen for decision.