ON APPEAL FROM THE COURT OF CRIMINAL APPEAL OF Criminal LawAppealDismissal on merits-Subsequent application for leave to H. C OF A.
appeal-Jurisdiction of Court of Criminal Appeal-Criminal Appeal Act of 1912 (N.S.W.) (No. 16 of 1912), sec. 26-Crimes Act 1900-1929 (N.S.W.) (No. 40 of 1900-No. 39 of 1929), sec. 475.
The jurisdiction of the Court of Criminal Appeal of New South Wales is confined within the limits of the Criminal Appeal Act of 1912 (N.S. W.); there- fore, that court has no jurisdiction to reopen an appeal which it has heard upon the merits and finally determined.
Decision of the Court of Criminal Appeal of New South Wales affirmed.
APPLICATION for special leave to appeal from the Court of Criminal Appeal of New South Wales.
At his trial at the Quarter Sessions held in December 1932, the jury found Paul Grierson guilty on two charges, namely, (a) that on 29th September 1932, at Sydney, he assaulted one Frank Edgar Seckold and robbed him of one handbag and money to the amount of £530, the property of His Majesty the King; and (b) that on the same day he maliciously used a corrosive fluid, that is to say, ammonia, to do grievous bodily harm to one Alfred Robert Winnacot Johnston. Grierson was sentenced to imprisonment for a term of ten years with hard labour on the first charge, and a term of thirty- five years on the second charge, the sentences to be concurrent.
A. In March 1933 an appeal by Grierson against his conviction and
sentences on the grounds, inter alia, that he was wrongly convicted, that the sentences were harsh and unconscionable, and that fresh evidence was available, was dismissed by the Court of Criminal Appeal, except that the sentence of thirty-five years' imprisonment was altered to a sentence of penal servitude for life (R. v. Grierson 1 ). An application by Grierson for special leave to appeal from the decision of the Court of Criminal Appeal was refused by the High Court in August 1933.
In June 1934 representations were made on behalf of Grierson to the Minister of Justice for the State of New South Wales for an inquiry under sec. 475 (1) of the Crimes Act 1900 (N.S.W.) on the ground that certain material facts had become known respecting the evidence of one of the material witnesses for the Crown at the trial. The Minister replied that, having considered the facts dis- closed, he would not recommend an inquiry under the section. In July 1937, Grierson appeared in person before the Court of Criminal Appeal in support of a further application for leave to appeal against his conviction and sentences, but that court upheld a preliminary objection taken by the Solicitor-General that the court had no jurisdiction to entertain the application by reason of the fact that an appeal had already been maintained to the court and dis- missed after the merits had been determined.
In the course…
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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Grierson v The King [1938] HCA 45
Case
[1938] HCA 45
Decision Date
CaseChat Overview and Summary
Paul Grierson was convicted in the New South Wales Quarter Sessions on charges of assault with intent to rob and maliciously using a corrosive fluid to cause grievous bodily harm. He was sentenced to ten years' imprisonment on the first charge and penal servitude for life on the second, to be served concurrently. Grierson appealed his conviction and sentences to the Court of Criminal Appeal of New South Wales, which dismissed the appeal on its merits, though it altered the sentence on the second charge. A subsequent application for special leave to appeal to the High Court was refused. Grierson then sought to reopen his appeal or bring a fresh appeal to the Court of Criminal Appeal, alleging new facts had emerged concerning a Crown witness's evidence. The Court of Criminal Appeal upheld a preliminary objection that it lacked jurisdiction to entertain the application, as the appeal had already been heard and finally determined on its merits. Grierson then applied to the High Court for special leave to appeal from this decision.
The legal issue before the High Court was whether the Court of Criminal Appeal of New South Wales had the jurisdiction to reopen an appeal that it had already heard and finally determined on its merits, or to grant leave for a fresh appeal, based on subsequently discovered facts. The applicant argued that the Court of Criminal Appeal possessed powers to reopen appeals, citing various English cases and section 12 of the Criminal Appeal Act 1912 (N.S.W.). The respondent contended that the Court of Criminal Appeal's jurisdiction was confined by the Criminal Appeal Act 1912 (N.S.W.), and that once an appeal had been heard and determined on its merits, it could not be reopened.
The High Court affirmed the decision of the Court of Criminal Appeal. The Court reasoned that the jurisdiction of the Court of Criminal Appeal was statutory and limited by the Criminal Appeal Act 1912 (N.S.W.). Once an appeal had been fully heard and disposed of on its merits, it was a final determination, and the court had no power to reopen it or entertain a fresh appeal on the same conviction. The Court noted that while the Criminal Appeal Act 1912 (N.S.W.) and the Crimes Act 1900 (N.S.W.) provided mechanisms for executive intervention, such as through section 26 of the Criminal Appeal Act or section 475 of the Crimes Act, these did not grant the Court of Criminal Appeal the power to review its own final decisions on appeal. The Court distinguished cases involving the withdrawal of an abandonment of appeal, where no determination on the merits had occurred.
The High Court dismissed the application for special leave to appeal.