Elliott v The Queen Blessington v The Queen [2007] HCA 51 8 November 2007 S215/2007 & S218/2007
ORDER
In each matter, appeal dismissed.
On appeal from the Supreme Court of New South Wales
Representation
T A Game SC with S E Pritchard and J K Taylor for the appellant in S215/2007 (instructed by Giddy & Crittenden)
B W Walker SC with R W Burgess for the appellant in S218/2007 (instructed by Legal Aid Commission of NSW)
M G Sexton SC, Solicitor-General for the State of New South Wales with A M Mitchelmore and J S Caldwell for the respondent and intervening on behalf of the Attorney-General for the State of New South Wales in both appeals (instructed by Crown Solicitor (NSW))
D M J Bennett QC, Solicitor-General of the Commonwealth with N L Sharp intervening on behalf of the Attorney-General of the Commonwealth in both appeals (instructed by Australian Government Solicitor)
W Sofronoff QC, Solicitor-General of the State of Queensland with P J Davis SC intervening on behalf of the Attorney-General of the State of Queensland in both appeals (instructed by Crown Solicitor for the State of Queensland)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Elliott v The Queen Blessington v The Queen
Criminal law – Criminal appeals – Jurisdiction of Court of Criminal Appeal – The appellants were sentenced to life imprisonment and were subject to a non-release recommendation made by the sentencing judge – Whether the non-release recommendation was a "sentence" or "order" for the purposes of an appeal pursuant to s 5 of the Criminal Appeal Act1912 (NSW).
Courts – Judgments – Circumstances in which judgments may be reopened – Earlier order not perfected – Relevance of subsequent legislative changes – Whether Court of Criminal Appeal erred in refusing leave to reopen judgment.
Words and Phrases – "non-release recommendation", "order", "reopen", "sentence".
GUMMOW, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ. On 21 June 1990 at a joint trial upon indictment conducted in the Supreme Court of New South Wales before Newman J and a jury, Stephen Jamieson, Matthew Elliott and Bronson Blessington were found guilty and convicted of offences which included the murder on 8 September 1988 of Ms Janine Balding. At the time of the murder, Elliott was aged 16 and Blessington 14. Jamieson was aged 22.
On 17 February 1992 the Supreme Court (Gleeson CJ, Hope AJA, Lee AJ), sitting as the Court of Criminal Appeal pursuant to s 3 of the Criminal Appeal Act1912 (NSW) ("the Criminal Appeal…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Elliott v The Queen [2007] HCA 51
Case
[2007] HCA 51
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered appeals by Elliott and Blessington against decisions of the Court of Criminal Appeal of New South Wales. The appellants had been sentenced to life imprisonment, and the sentencing judge had made a recommendation that they not be released. The central dispute concerned whether this non-release recommendation constituted a "sentence" or "order" for the purposes of an appeal under section 5 of the *Criminal Appeal Act 1912* (NSW).
The legal issues before the High Court were twofold. Firstly, the Court had to determine whether the non-release recommendation was a "sentence" or "order" within the meaning of section 5 of the *Criminal Appeal Act 1912* (NSW), which governs the jurisdiction of the Court of Criminal Appeal. Secondly, the Court considered whether the Court of Criminal Appeal had erred in refusing leave to reopen an earlier, unperfected judgment, and the relevance of subsequent legislative changes to this question.
The High Court reasoned that a non-release recommendation, while significant, was not a sentence or an order in the sense contemplated by section 5 of the *Criminal Appeal Act 1912* (NSW). It was a recommendation made by the sentencing judge, not a binding judicial determination that could be appealed as a sentence or order. The Court also held that the Court of Criminal Appeal had not erred in refusing to reopen its earlier judgment, particularly in light of the fact that the recommendation was not an appealable sentence or order. The subsequent legislative changes were not considered to alter this conclusion.
In each matter, the appeal was dismissed.
Orders
Orders of the court
In each matter, appeal dismissed. (Judgment of the Court)
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GUMMOW, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ
(dissent)