Grierson v The King

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.