Browne-Kerr v The Queen

This matter concerned an application by Donald Stuart Browne-Kerr for special leave to appeal to the High Court of Australia against a decision of the Full Court of the Supreme Court of Victoria. Browne-Kerr had been charged with 57 counts of forgery, of which he was acquitted on 31 and convicted on 26. He appealed his convictions to the Full Court on nine grounds, later adding two more. The Full Court allowed his appeal, quashed the convictions, and ordered a retrial.

The central legal issue before the High Court was whether the Full Court of Victoria had failed to fully exercise its appellate jurisdiction by not determining all tenable grounds of appeal raised by Browne-Kerr. Specifically, the applicant argued that the Full Court had not determined grounds 2, 3, and 4 of his appeal, which related to the alleged inconsistency of the verdicts, the perversity of the verdict, and the verdict being unsafe and unsatisfactory, respectively. The applicant contended that this failure to determine all grounds meant the appeal remained partially undetermined.

The High Court considered its previous decision in *Jones* (1988-89) 166 CLR 409, which established that a Court of Criminal Appeal cannot refuse to hear and determine tenable grounds of appeal that support an acquittal simply because it upholds other grounds that lead to the quashing of a conviction and an order for a retrial. Such a failure means the Court of Criminal Appeal has not fully exercised its jurisdiction. The applicant argued that the Full Court's judgment in his case mirrored this situation, as it appeared to have not determined grounds 2 and 3, and potentially ground 4, despite quashing the convictions and ordering a retrial. The respondent accepted that if any of the three grounds had been sustained, the consequence would have been a quashed conviction and a new trial.