R v Giri (No 2)

Case [2001] NSWCCA 234

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      R v Giri (No 2) [2001]  NSWCCA 234

FILE NUMBER(S):
60830/99

HEARING DATE(S):               Written submissions filed 20/06/01

JUDGMENT DATE: 25/06/2001

PARTIES:
Regina v Nitin Giri

JUDGMENT OF:       Heydon JA Barr J Smart AJ   

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S):          70061/98

LOWER COURT JUDICIAL OFFICER:     Studdert J

COUNSEL:
Crown:  Mr G E Smith
Appellant:  Mr P Byrne SC/Ms G Bashir

SOLICITORS:
Crown:  S E O'Connor
Appellant:  Ross Hill and Associates

CATCHWORDS:
Criminal Practice and Procedure - Natural Justice and Procedural Fairness - Whether natural justice denied - Whether case should be reopened and further submissions considered - Where appellant’s solicitors but not counsel were given advance notice of the time of judgment delivery - Where appellant not specifically informed that court would consider application of proviso under Criminal Appeal Act 1912 (NSW), s 6.
D

LEGISLATION CITED:
Criminal Appeal Act 1912

DECISION:
The Court notes that the order made on 12 June 2001 is not to be changed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60830/99

HEYDON JA
  BARR J
  SMART AJA

25 June 2001

REGINA v Nitin GIRI (No 2)

JUDGMENT

HEYDON JA: 

  1. On Tuesday 12 June 2001 the court delivered judgment in this matter. 

  2. On Friday 15 June 2001 the following document was filed on behalf of the appellant:

    “It has been brought to our attention that the judgment of the court in this matter was delivered on Tuesday 12 June 2001.  At the time we were not aware that judgment was about to be delivered and we had proposed that a short additional written submission should be filed on behalf of the appellant in reply to the supplementary submissions filed by the Crown.  That submission was in the course of preparation at the time that judgment was delivered.

    We also note that in dealing with this matter the court has considered the application of the proviso to s 6 of the Criminal Appeal Act 1912. It is respectfully submitted that the appellant should have been given notice of the fact that consideration was being given to the application of the proviso and the opportunity to be heard in relation to this issue. There are matters of substance which in our respectful submission should be considered on the question of whether it is appropriate to apply the proviso in this case. The appellant would wish to draw the attention of the court to relevant authority on this question apart from the authorities referred to in the brief reference made to the proviso in the Crown’s supplementary submission.

    The further submissions on the proviso could, subject to the court’s preference, be addressed in written submissions.

    For the purpose of hearing the appellant on the issues referred to above, it is respectfully submitted that the court should refrain from perfecting the order of the court as contemplated in the judgment of 12 June 2001.”

    That document appeared over the typed names of Paul Byrne SC and Gabrielle Bashir, though…

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AGLC
R v Giri (No 2) [2001] NSWCCA 234
Case
[2001] NSWCCA 234
Decision Date

CaseChat Overview and Summary

The case of R v Giri (No 2) involved the appellant, who was appealing against a decision, and the Crown, which was defending the original decision. The appellant argued that procedural fairness and natural justice were denied in the handling of the appeal process, particularly regarding the timing of the judgment delivery and the consideration of a proviso under the Criminal Appeal Act 1912 (NSW). The Court of Appeal was required to determine whether the appellant's solicitors were appropriately notified of the judgment delivery time and whether the appellant was given an opportunity to respond to the Crown’s Supplementary Submissions. Additionally, the court had to consider if the appellant was denied natural justice by not being informed that the court would consider the proviso under the Act.

The court held that the Registry's action in notifying the appellant’s solicitors of the judgment delivery date was appropriate and that it was not necessary for counsel to be specifically informed. Regarding the appellant’s written submissions, the court found that the appellant had ample time to file a response to the Crown’s Supplementary Submissions and that the failure to seek leave for filing these submissions was venial. The court also concluded that the appellant was not denied natural justice by the court's consideration of the proviso, as the appellant had not expressed any intention to file written submissions on this issue. The court emphasized the seriousness of the appellant's claim regarding natural justice but found that the appellant had not been prejudiced by the court's actions.

In conclusion, the Court of Appeal dismissed the appellant’s arguments, finding no procedural unfairness or denial of natural justice in the handling of the appeal. The court upheld the original decision, and no further submissions were considered on the proviso. The final orders of the court were to maintain the original judgment and deny the appellant's application for reconsideration on the grounds of procedural fairness and natural justice.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On Monday 18 June 2001, the appellant was advised to file and serve the written submissions he wished to file on or before 4pm on Wednesday 20 June 2001. This he did. They appeared over the typed names and signatures of Paul Byrne SC and Gabrielle Bashir. The Crown has not been asked to respond to them. Notice of delivery of judgment4 The first proposition which calls for examination is the proposition that on 12 June 2001 “we” were not aware that judgment was about to be delivered. The Registry gave advance notice to the office of the solicitor for the appellant, Ross Hill & Associates, Solicitors of Dee Why, of the fact that judgment was to be delivered on 12 June 2001. The record of appearances made at the time when judgment was delivered reveals that Mr Ross Hill was in attendance on that occasion. What the Registry did was appropriate. It is not necessary for counsel for a party, as distinct from the solicitors for that party, to be advised of the time when judgment is given. Forestalling of appellant’s written submissions The second proposition which calls for examination is the suggestion that the delivery of judgment on 12 June 2001 deprived the appellant of an opportunity to respond to the Crown’s Supplementary Submissions. The following chronology is relevant. -On 26 February 2001 the appeal was called on for oral hearing and argument, recorded in 23 pages of transcript, proceeded for some time. It was agreed that judgment should be reserved until after the High Court delivered judgment in Azzopardi v R.-On 3 May 2001 the High Court delivered judgment in Azzopardi v R [2001] HCA 25.-On 9 May 2001 the appellant filed “Supplementary Submissions”.-On 14 May 2001 the Crown filed “Supplementary Submissions” in answer to those of the appellant.-On 12 June 2001 the judgment complained of was delivered. Neither set of Supplementary Submissions was filed with the leave of the court. Strictly speaking that should have been sought. The failure to do so was in the circumstances venial, because it was sensible to put in further written submissions about Azzopardi v R speedily so that the court could consider the impact of that case on the arguments already presented and deliver judgment within a reasonable period. However, if leave had been sought, an opportunity would have been afforded for the appellant to make plain his desire to put in written submissions in reply to the Crown’s Supplementary Submissions, which desire it is now said has been thwarted. Given that leave was not sought, if the appellant had wanted to reply to the Crown’s Supplementary Submissions it had more than four weeks to do so before judgment was delivered. In view of the appropriate and considerable speed with which the two sets of Supplementary Submissions were generated, that gave very much more than ample time. The court was given no notice of the appellant’s intention of filing written submissions in reply.Denial of natural justice The third matter which must be examined relates to the complaint that the appellant “should have been given notice of the fact that consideration was being given to the application of the proviso and the opportunity to be heard in relation to this issue.” This is a complaint that the appellant has been denied natural justice. If it is soundly based, it is a complaint of the utmost seriousness. By way of background, it must be noted that on the face of it the 15 June 2001 document adopts a tone of very considerable surprise that the court should have taken the step of considering the application of the proviso. Several observations are called for.

Ratio Decidendi

Legal Principle Established

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