Elliott v The Queen

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.