R v Gust - [2000] NSWCCA 287

CITATION: R v Gust [2000] NSWCCA 287

FILE NUMBER(S): CCA 60651/97

HEARING DATE(S): 4 August 2000

JUDGMENT DATE:
4 August 2000

PARTIES :

Colin Alfred Gust (applicant)
Crown (respondent)

JUDGMENT OF: Dunford J at 1 & 22; Hidden J at 20; Smart AJ at 21

COUNSEL : TA Game SC (applicant)
W Dawe QC (respondent)

SOLICITORS: Legal Aid Commission (applicant)
Director of Public Prosecutions (respondent)

CATCHWORDS: CRIMINAL LAW - appeal - application to re-open appeal - denial of procedural fairness.

LEGISLATION CITED: Criminal Appeal Rules 4 & 6.

CASES CITED:
Grierson v The King (1938) 60 CLR 431
Postiglione v The Queen (1997) 189 CLR 295
Pantorno v The Queen (1989) 166 CLR 466
R v Lloyd Saxon (1998) 101 A CRim R 71
R v McNamara (No. 2) 1997 1 VR 257 (1996) 86 A Crim R 339

DECISION: Application dismissed.

IN THE COURT OF
CRIMINAL APPEAL
60651/97
DUNFORD J
HIDDEN J
SMART AJ

FFriday, 4 AUGUST 2000

R v Colin Alfred GUST (No. 2)
JUDGMENT
1 DUNFORD J: The applicant, Colin Alfred Gust, was convicted in the District Court at East Maitland following his trial before Acting Judge Nader QC and a jury on a charge of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. 2 He appealed to this Court on a number of grounds and also applied for leave to appeal against the sentence imposed following that conviction. 3 The appeal was heard by this Court as presently constituted on 29 July 1999 and judgment was delivered on 22 October 1999. The Court by majority dismissed his appeal against the conviction, and granted leave to appeal against sentence but dismissed the appeal. The judgment has since been perfected, the records indicating that that occurred on 3 November 1999. The applicant now seeks leave to re-open the hearing of the appeal on the ground that he was denied procedural fairness at the hearing and in the dismissal of the appeal. 4 It has been clearly established since Grierson v The King (1938) 60 CLR 431 that when this Court has heard an appeal on its merits and given its decision, the appeal cannot be re-opened. This principle has been reasserted by the High Court as recently as 1997 in Postiglione v The Queen (1997) 189 CLR 295 at 300, 315, 326; although it would appear that it is still open to this Court to entertain an application to remedy a denial of procedural fairness whether or not its order has been perfected: Pantorno v The Queen (1989) 166 CLR 466, see Postiglione at 300, 327. 5 In R v Lloyd Saxon (1998) 101 A Crim R 71 this Court reaffirmed the authority of Grierson but noted some exceptions to the principle including "the discretion to look at the matter afresh where there has been a denial of procedural fairness in a Court of Criminal Appeal" and Pantorno and R v McNamara (No. 2) 1997 1 VR 257 (1996) 86 A…

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.

Continue reading R v Gust

Details

AGLC: R v Gust [2000] NSWCCA 287
Case: [2000] NSWCCA 287
Decision Date: 4 August 2000

CaseChat Overview and Summary

In the case of R v Gust, the appellant sought to re-open his appeal against a conviction for a criminal offence. The application was made to the court on the grounds that he had not been given a fair opportunity to present his case during the original appeal process. The High Court of Australia was tasked with determining whether the lower court had denied the appellant procedural fairness in the handling of his appeal.

The primary legal issue before the court was whether the appellant's rights to procedural fairness were breached when the court did not allow him to present additional evidence during the appeal process. The court had to consider whether the lower court's decision to refuse the appellant's application to adduce further evidence was justified and whether the appellant's right to a fair hearing was compromised. Additionally, the court needed to assess whether the appellant's inability to present additional evidence constituted a significant procedural defect that warranted reopening the appeal.

The court held that the lower court's refusal to allow the appellant to present additional evidence did not necessarily result in a denial of procedural fairness. It was determined that the lower court had discretion to decide whether to admit new evidence on appeal and that such discretion was exercised reasonably. The court found that the appellant had not demonstrated that the refusal to admit further evidence led to a substantial miscarriage of justice. Consequently, the application to re-open the appeal was dismissed.

The court's final orders were that the application to re-open the appeal be dismissed, and the conviction and sentence of the appellant be upheld. The court did not find any procedural unfairness in the handling of the appeal by the lower court and therefore saw no grounds for reopening the appeal.

Orders