REGINA v Matthew James ELLIOTT and Bronson Matthew BLESSINGTON [2006] NSWCCA 305
HEARING DATE(S):
30 March 2006
JUDGMENT DATE:
22 September 2006
JUDGMENT OF:
Spigelman CJ at 1; Kirby J at 100; Howie J at 208
DECISION:
1 Leave to appeal out of time refused; 2 Leave to reopen the original appeal refused.
CATCHWORDS:
CRIMINAL LAW – Appeal – Jurisdiction to reopen appeal – Where orders of previous appeal not perfected – Whether leave to reopen should be granted – To be determined by reference to the dominant consideration of avoiding a miscarriage of justice - CRIMINAL LAW – Appeal – Jurisdiction – Whether Court of Criminal Appeal can hear appeal from a recommendation that prisoner never be released – Whether recommendation a “sentence” – Where recommendation subsequently given effect by legislation – Recommendation not an “order of the court of trial” – Criminal Appeal Act 1912, s 2 - CRIMINAL LAW – Appeal – Against sentence – Life Sentence – Where recommendation that prisoner never be released – Where recommendation given subsequent legislative effect – Court cannot consider appeal on the basis that the consequences of the life sentence are significantly more onerous as a result of subsequent legislation – It would be an inappropriate exercise of judicial power to remove the legislative criterion upon the basis of which Parliament enacted constitutionally valid legislation - WORDS & PHRASES – “order”, “order made by the court of trial”, “sentence”
[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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AGLC
Regina v Matthew James Elliott and Bronson Matthew Blessington [2006] NSWCCA 305
Case
[2006] NSWCCA 305
Decision Date
CaseChat Overview and Summary
The case of R v E involved an appeal against the jurisdiction of the Court of Criminal Appeal in Australia. The appellant, E, sought to challenge a recommendation made by a previous court that he never be released from prison, a recommendation that was subsequently given effect by legislation. The legal issues before the court were whether the Court of Criminal Appeal had the jurisdiction to reopen an appeal where the orders of a previous appeal had not been perfected, and whether the Court could hear an appeal against a recommendation that a prisoner never be released, where that recommendation was subsequently given effect by legislation.
The court determined that the dominant consideration in deciding whether to grant leave to reopen an appeal was to avoid a miscarriage of justice. In considering the jurisdiction of the Court of Criminal Appeal, the court found that the recommendation in question was not an "order of the court of trial" as defined by the Criminal Appeal Act 1912, and therefore, the Court did not have the jurisdiction to hear an appeal against it. The court held that it would be an inappropriate exercise of judicial power to remove the legislative criterion upon which Parliament had enacted constitutionally valid legislation. The court further held that the consequences of the life sentence were not significantly more onerous as a result of subsequent legislation.
The court's decision clarified the scope of the Court of Criminal Appeal's jurisdiction and the meaning of "order" and "sentence" in the context of appeals against recommendations made by previous courts. The court held that it was not appropriate to consider an appeal on the basis that the consequences of the life sentence were significantly more onerous as a result of subsequent legislation. The court's decision in R v E provides guidance to courts and practitioners on the limits of the Court of Criminal Appeal's jurisdiction and the meaning of key terms in the context of criminal appeals.