R v POLLITT (No 2) - [2009] SASC 154

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v POLLITT (No 2)
[2009] SASC 154
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice White)
4 June 2009
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES
Application to “re-open” appeal – applicant originally charged with attempted abduction and indecent behaviour arising out of the same set of circumstances – convictions recorded on both counts after trial by jury – on appeal conviction on second count affirmed – appeal on first count allowed, conviction set aside and retrial ordered – applicant acquitted on re-trial – claim that fresh evidence relevant to complainant’s credibility which was not available at first trial was led at second trial.
HELD: application dismissed – orders on the appeal were perfected and the court has no power to entertain a second appeal.
Criminal Law Consolidation Act 1935 (SA) s 352, s 353; Supreme Court Act 1935 (SA) s 27; Criminal Appeals Act 1924 (SA) s 5; Criminal Appeal Act of 1912 (NSW); Crimes Act 1900 (NSW), referred to.
Eastman v The Queen (2008) 166 FCR 579; Grierson v The King (1938) 60 CLR 431; R v Brain (1999) 74 SASR 92; R v Edwards (No 2) [1931] SASR 376; R v Keogh (unreported, 22 December 1995, s5397.1); R v Keogh (2007) 175 A Crim R 153, applied.
Pantorno v The Queen (1989) 166 CLR 466; Postiglione v The Queen (1997) 189 CLR 295; R v Pantorno [1988] VR 195, considered.

R v POLLITT (No 2)
[2009] SASC 154
Court of Criminal Appeal: Duggan, Gray and White JJ

DUGGAN J: On 15 September 2006 the applicant was convicted by a District Court jury of attempted abduction with intent to have sexual intercourse (“the first count”) and indecent behaviour (“the second count”). It was alleged that the offences took place in the course of an incident at Greenock on 29 June 2005. He appealed to this Court against conviction on both counts.
The appeal against the conviction on the second count was dismissed. The appeal against conviction on the first count was allowed, the conviction set aside and, by majority, the Court ordered a retrial on this count. The majority was of the view that the trial judge erred in failing to direct the jury adequately in relation to the element of intention to have intercourse. The dissenting judge was of the view that there was insufficient evidence for a jury to conclude that the applicant had an intention to take the complainant away by force, or to have sexual intercourse with her. In his view, a verdict of acquittal on the first count was the appropriate order.
The retrial on the first count took place before a judge of the District Court sitting without a jury. The applicant was acquitted. The applicant now applies to this Court to “re-open” the appeal.
The grounds put forward in support of the re-opening of the appeal are based on what is claimed to be fresh evidence. They state that:
New evidence has been received which was not available to the Applicant at the time of the original trial.
The Applicant was convicted unfairly because:
(a)The Jury before which the matter was initially heard were not provided with all the relevant evidence in respect of the complainant’s credibility.
(b)There was a non disclosure of relevant evidence unavailable at the time of the trial which, had it been accepted by the jury, would have led the jury to acquit the Applicant of the charge.
A miscarriage of justice has occurred.
The complainant was 16 years of age at the time of the incident which gave rise to the charges. She gave evidence at the first trial that on the morning of 29 June 2005 she was waiting at a bus stop in Greenock for a bus to take her to school. According to her evidence she was alone at the bus stop when a man driving a Kingswood sedan pulled up near her. She said she had seen the man on occasions before this day driving his car in the vicinity of the bus stop.
The complainant said that the man told her to get into the car. He spoke to her in an aggressive manner and he got out of the vehicle. The complainant said she took a pair of scissors out of her pencil case and put them in her pocket. The man stood near the car and told her on a number of occasions to get into the vehicle. She said he then exposed his penis. He threw her bag against the car and she took the scissors out of her pocket and said, “Fuck off or I will stab you”. The man then got into the car and drove off.
The complainant sent a text message to her boyfriend while she was still at the bus stop. It stated “This bloke tried 2 get me in his car”. She told her boyfriend in the message that she was scared and she gave the number of the man’s vehicle.
The applicant gave evidence at the first trial before the jury. He stated that he drove the car past the bus stop at about the time the complainant stated the incident took place. However, he denied stopping the vehicle and conducting himself in the manner alleged by the complainant.
The trial judge who presided over the retrial in relation to the second count acquitted the appellant on that count. He found that there was a reasonable doubt about the veracity of the complainant. He based this view on inconsistencies in the evidence of the complainant at the trial, the fact that the complainant had been untruthful on previous occasions about various matters including an assertion that she had been raped as a child, the fact that the complainant had experienced repeated dreams about being raped prior to the alleged incident and an assertion by the complainant that she found the applicant’s practice of driving past and waving at her and other students on occasions to be confronting or “creepy”.
Upon receipt of the application to re-open the appeal this Court directed the parties to present argument on whether the Court has power to enquire further into the conviction on the second count in the light of the dismissal of the appeal against conviction on this count.
Counsel for the applicant argued that the Court has power to re-open an appeal in the circumstances of the present case. Counsel for the Director of Public Prosecutions argued that the statutory right of appeal is limited to one appeal against conviction. In the alternative, it was argued that if there are limited exceptions to this general rule, the present case does qualify as an exception.
The appeal provisions in criminal matters are set out in Part 11 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). The right to appeal is conferred by s 352. Section 353 regulates the hearing and determination of appeals.
The effect of these provisions insofar as they apply to appeals against convictions are not materially different from those contained in s 5 of the Criminal Appeals Act 1924 (SA) which were considered by the Court of Criminal Appeal in R v Edwards (No 2).[1]In that case Angas Parsons, Napier and Piper JJ said in their joint judgment:[2]
This Court in its criminal appellate jurisdiction is a statutory Court. An appeal lies to it on any of the grounds mentioned in sec. 5 above quoted. The right of the appellant, under this section, to appeal, has been exercised. There is no express power to entertain a second appeal, or to hear a second application for leave to appeal, and there is no precedent in either case for its being done. There can be no doubt that the Court has power to entertain a second application for leave to appeal, at any rate where it has not heard the merits of the application. By r. 24 of the Criminal Appeal Rules 1925, an appellant, after service of notice to appeal, or of application for leave to appeal, or of application for extension of time within which under the Act such notice may be given, may abandon his appeal by giving notice of such abandonment to the Master, and upon such notice being given the appeal shall be deemed to have been dismissed. The Court of Criminal Appeal in R v Barker, (1910) 5 Cr. App. Rep. 283, where a notice of abandonment of an appeal had been given, allowed such notice to be withdrawn, and heard and allowed an appeal. In R v Pitman, (1916) 12 Cr. App. Rep 14, where a notice of abandonment had been given, the prisoner applied for leave to withdraw the notice. The Lord Chief Justice, in giving reasons for the refusal of the application, said at pp. 14‑15: - “There is no doubt that this Court has power either to allow the notice of abandonment to be withdrawn, or to re-open an appeal that has been dismissed. But that power will only be exercised where there are special circumstance which in the view of the Court justify a departure from the ordinary procedure.” In R v Cox, (1920) 15 Cr. App. Rep. 36, where the notice of the abandonment of the appeal had been given, an application was made for leave to withdraw the notice, and Salter J., in delivering the reasons of the Court which refused the application, quoted the passage above cited from R v Pitman. Reference may also be made to R v Sloan, (1923) 39 T.L.R. 173. In our view the language used in R v Barker and adopted in R v Pitman, must be regarded as being applicable only to the occasion. The notice of abandonment having been given the appeal was, by virtue of the rule, dismissed, because it was abandoned. We think that it is clear that the Court of Criminal Appeals in the two cases referred to were only considering and speaking of an appeal which had been “dismissed” in that way. In each case the application was made ex parte, and it is not to be supposed that the Court would assert a jurisdiction to hear a second appeal without considering the question of jurisdiction to do so.
…
The consequences of holding that this Court has the jurisdiction to entertain further appeals from time to time after the dismissal of an appeal, would lead to manifest inconvenience and, possibly, great absurdity. A convicted person who, after his appeal has failed, makes discovery of evidence from which an inference can properly be drawn that it is reliable and likely to have affected the verdict of the jury if they had heard it, is not left by the Act without redress, for he can apply under sec. 22,[3] and then, if the Chief Secretary thinks fit, he may, with the concurrence of the Attorney-General, refer the whole case to the Full Court for hearing and determination, as in the case of an appeal by a person convicted.
…
On the language of the Act and applying the principle of the decisions on the civil side, which have been quoted, we think we have no jurisdiction to grant the leave to appeal which is sought.
[1] [1931] SASR 376.
[2] Ibid at 378-380.
[3] Section 22 dealt with references on petitions for mercy.
Edwards’ case was approved by the High Court in Grierson v The King,[4] a case involving the interpretation of the appeal provisions in the Criminal Appeal Act of 1912 (NSW). Prior to the passing of this Act these provisions were contained in the Crimes Act 1900 (NSW).
[4] (1938) 60 CLR 431.
Rich J commented:[5]
The Court of Criminal Appeal was established by the Criminal Appeal Act of 1912 (N.S.W.), which took the place of provisions for appeals, writs of error, informalities and new trials contained in secs. 428, 470, 471, 472, 473 and 474 of the Crimes Act 1900, these sections being repealed, and was amended by the Crimes (Amendment) Act 1924 (No. 10), secs. 32 and 33, and Act No. 2 1929. Sec. 475 of the Crimes Act 1900, however, which provides for an inquiry after conviction, was not repealed. Moreover, the Criminal Appeal Act of 1912, sec. 26; while preserving the pardoning power of the Governor, enables the Minister of Justice to refer any petition for the exercise of the pardoning power to the Court of Criminal Appeal, and the case is then to be heard and determined as in the case of an appeal by a person convicted; or it enables the Minister to refer any point arising in the case to the court for its opinion thereon. In making the remedies provided by sec. 475 of the Crimes Act 1900 and sec. 26 of the Criminal Appeal Act of 1912 available to a prisoner after conviction the legislature has, I think, recognized that the jurisdiction of the Court of Criminal Appeal is confined within the limits of the Act and that when the court has heard an appeal on its merits and given its decision the appeal cannot be reopened.
Dixon J (McTiernan J concurring) said:[6]
The Supreme Court held, in accordance with a decision of the Supreme Court of South Australia (R. v. Edwards [No. 2]), that a second appeal from a conviction could not be entertained after the dismissal, upon the merits, of an appeal or application for leave to appeal and that the first appeal could not be reopened after a final determination.
In my opinion this conclusion is correct. The jurisdiction is statutory, and the court has no further authority to set aside a conviction upon indictment than the statute confers. The Criminal Appeal Act of 1912 (N.S.W.) is based upon the English Act of 1907. It does not give a general appellate power in criminal cases exercisable on grounds and by a procedure discoverable from independent sources. It defines the grounds, prescribes the procedure and states the duty of the court. The statute deals with criminal appeals rather as a right or benefit conferred on prisoners convicted of indictable offences and sets out the kind of convictions and sentences from which they may appeal and lays down the conditions on which they may appeal as of right and by leave and the procedure which they must observe. It limits the time within which appeals and applications for leave to appeal may be brought, subject, however, to a discretionary power in the court to extend the period except where the sentence is capital. The grounds or principles upon which the court is to determine appeals are stated, and the duty is imposed on the court of dismissing an appeal, unless on those principles it determines that it should be allowed. The determination of an appeal is evidently definitive, and a conviction unappealed is equally final. No considerations controlling or affecting the conclusion to be deduced from these provisions are supplied by analogous civil proceedings. Appeal is not a common-law remedy, and proceedings at law are only subject to that remedy by statute (Attorney-General v. Sillem). A second writ of error could not, it would seem, be brought upon the same record after an affirmance upon the first Lambell v. Pretty John; Horne (or Herne) v. Bushell; Burleigh v. Harris; Winchurch v. Belwood).
…
If the prisoner has abandoned his appeal, the Court of Criminal Appeal in England will exercise a discretion to allow him to withdraw his notice of abandonment, notwithstanding that it operates as a dismissal of the appeal (Halsbury's Laws of England, 2nd ed., vol. 9, p. 273, and the cases cited in note o). But in such a case there has been no determination by the court, and there is no English case in which, after such a determination, an appeal has been reopened or a fresh appeal has been entertained.
(Footnotes omitted)
[5] Ibid at 434.
[6] Ibid at 435.
Grierson has not been overruled by the High Court. However, according to the argument for the applicant, the views expressed in the case were questioned in Pantorno v The Queen.[7] In that case the High Court granted special leave to appeal against sentence and allowed the appeal. The circumstances which gave rise to the appeal are set out in the headnote:
An accused pleaded guilty to a charge of possession of a drug of dependence. His counsel told the judge that the amount of the drug was very small and was for the accused's own use. He referred to s 73(1)(b) as prescribing the relevant penalty "where it is not a trafficable amount, and the Crown doesn't suggest for one moment that this a trafficable amount". The prosecutor did not challenge this assertion and made no submissions about sentence. The judge sentenced the accused under s 73(1)(c) on the basis that there was no evidence before him that the accused's possession of the drug was not for a purpose relating to trafficking.
It was held that, as the proceedings at first instance had been conducted by the prosecution and the defence on the assumption that s 73(1)(b) applied, it was not open to the sentencing judge to sentence pursuant to s 73(1)(c) which provided for a higher penalty in certain aggravated circumstances without giving the accused the opportunity to show why he was not liable to the larger penalty.
[7] (1989) 166 CLR 466.
In their joint judgment Deane, Toohey and Gaudron JJ said:[8]
There is one further matter which should be mentioned. It is that the application for special leave to appeal to this Court was argued on the basis that, once judgment had been delivered by the Court of Criminal Appeal or (at the latest) once the judgment had been perfected, the jurisdiction of that Court was exhausted. In a case such as the present where there has been an inadvertent denial of procedural fairness in a criminal matter by a Court of Criminal Appeal, it would ordinarily be preferable that the matter be dealt with by further application to that Court. In view of the shortness of the minimum sentence to be served by the applicant, however, it would be inappropriate for this Court now to relist the matter for further argument so that the validity of the assumption (about which we express no view) that the Court of Criminal Appeal now lacks jurisdiction could be examined.
It is relevant to note that the application for leave to appeal against sentence had been dismissed by the Full Court of the Supreme Court of Victoria.[9] This was not a case in which there had been an appeal. No mention was made of Grierson in the joint judgment referred to. Furthermore, it is apparent from the judgment of Mason CJ and Brennan J that any approach to be made to the Court of Criminal Appeal is to take place before the formal order of the Court is perfected.[10]
[8] Ibid at 484.
[9] R v Pantorno [1988] VR 195.
[10] (1989) 166 CLR 466 at 474.
In Postiglione v The Queen,[11] a leading case on parity of sentences, Dawson and Gaudron JJ commented on the passage from the judgment of Deane, Toohey and Gaudron JJ quoted above. Their Honours said:[12]
[11] (1997) 189 CLR 295.
[12] Ibid at 300.
If a final order was made perfecting the decision of the Court of Criminal Appeal on Postiglione's first application, the assumption of jurisdiction to entertain his second application and the ensuing appeal was contrary to the decision of this Court in Grierson v The King. It was held in that case that the Criminal Appeal Act 1912 (NSW) does not confer jurisdiction to re-open an appeal which has been heard on the merits and finally determined. A fortiori, in a case where what is involved is the hearing of a second appeal. Pantorno does not suggest otherwise. The view was expressed in Pantorno that an intermediate court of appeal can entertain an application to remedy a denial of procedural fairness whether or not its order has been perfected. Nothing was said as to the jurisdiction of an appellate court to entertain a second appeal when the first has been heard and determined on the merits and an order perfected.
(Footnotes omitted)
McHugh J said:[13]
If the first order was perfected, the appeal against sentence had already been conclusively determined on its merits by the first appeal. In that event, the Criminal Appeal Act 1912 (NSW) does not permit the Court of Criminal Appeal to conduct a further appeal.
(Footnote omitted)
McHugh J referred to Grierson in the footnote to this comment.
Gummow J said:[14]
If it transpired that the orders on the first appeal to the Court of Criminal Appeal were perfected so that the second proceeding was incompetent, the result first reached there would stand. Nevertheless, that outcome would accord with that which would be reached on the merits. If the orders on the first appeal were not perfected, the Court of Criminal Appeal should proceed to achieve the effective dismissal of the appeal to that Court against sentence.
I add my agreement to what is said by Dawson and Gaudron JJ with respect to the reliance upon Pantorno v The Queen.
(Footnote omitted)
[13] Ibid at 315.
[14] Ibid at 327.

Doyle CJ undertook an extensive review of the relevant authorities in R v Keogh.[15] The application before the Court in that case was to “re-open” an appeal against conviction where there had been a previous appeal which was dismissed. An attempt was made to argue a new ground of appeal. An earlier application of a similar nature was rejected by the Full Court which concluded that it was bound by Grierson.[16]
[15] (2007) 175 A Crim R 153.
[16] R v Keogh (unreported, 22 December 1995, S5397.1).
The written submissions provided to the Court by the applicant in the second Keogh application were relied upon by counsel for the applicant in the present case.
Doyle CJ (Bleby and Sulan JJ concurring) rejected these arguments. Doyle CJ said:[17]
[17] (2007) 175 A Crim R 153 at 165-166.
The decision in Grierson appears to deny the existence of jurisdiction on the part of this Court to entertain the application now made to it. Mr Keogh has appealed, was fully heard on that appeal and the appeal was decided. However, it is necessary to consider whether later authority in the High Court qualifies the decision in Grierson, or whether the decision is to be understood as subject to an exception that covers the present case.
Mr Game submits that Rich J and Dixon J each refer to an appeal that has been heard on its merits, and that this is a point of distinction from the present case. I will return to this point. I record here that I do not accept the distinction. It is a reference, I consider, to the distinction between an appeal that has been heard and an appeal that has been abandoned, a distinction drawn by counsel in submissions to the High Court: at 433. In any event, Mr Keogh’s appeal was heard on the merits, even though new material, possibly casting doubt on the conviction, has later come to light.
Mr Game submits that the decision in Grierson does not bind this Court because the High Court was considering and refused an application for special leave to appeal. He cited no authority to support the submission that this Court may depart from the considered views of the High Court when dealing with an application for special leave to appeal. The decision in Grierson has been treated as authoritative in decisions by the High Court and by State Courts. I do not accept this submission.
Mr Game submits that the reasons in Grierson are not applicable because the Court was dealing with New South Wales legislation. But the legislation is in substantially the same form as the relevant provisions of the CLCA.
Mr Game submits that Edwards is wrongly decided. But if the reasoning in Edwards has been approved by the High Court, as it was in Grierson, then it is not for this Court to undermine the decision of the High Court by an attack on Edwards.
Mr Game also draws a distinction between re-opening an appeal, and a second appeal. I do not accept the validity of this distinction for present purposes.
Accordingly, unless subsequent High Court authority qualifies the decision in Grierson (there is no suggestion that it has been overruled), or unless other persuasive authority leads to the conclusion that there is a relevant exception to or limit on the reach of the proposition stated in Grierson, this Court is bound by that decision and must dismiss the application made to it.
The Chief Justice then analysed a number of authorities including Pantorno v The Queen and Postiglione v The Queen. When discussing the latter case he referred to the comments made by Dawson and Gaudron JJ in relation to Pantorno’s case and said:[18]
Clearly enough their Honours proceed on the basis that if an appeal has been heard and the order has been perfected, there is no jurisdiction to entertain a second appeal. They refer to a “view” to the effect that even if an order has been perfected, an intermediate court of appeal can remedy a denial of procedural fairness by that court. To my mind their Honours appear to have refrained from expressing an opinion on the correctness of that view. However, if I am wrong in that, the most that can be said is that they accept that an appeal can be re-opened despite a perfected order of dismissal in the event that there has been a denial of procedural fairness by the intermediate court of appeal, meaning that the appeal has not been heard and determined on the merits.
The Chief Justice concluded:[19]
The decision in Grierson has not been overruled. It binds this Court.
I accept that the decision in Grierson was not intended to deny the power of this Court to correct an order which, through error or mistake, incorrectly records the order that the court made. There is no reason to think that the cases dealing with the powers of a court under the so-called “slip rule” are not applicable to a decision by an intermediate court of appeal. But that exception to the principle expressed in Grierson does not arise here.
Observations by all members of the Court in Pantorno might mean that a court of appeal exercising powers under the common form provisions is able to entertain a further appeal, or re-open the hearing of an appeal, despite its order being perfected, if that court has inadvertently denied procedural fairness to a party by, for example, failing to deal with an argument raised on appeal, with the result that the appeal has not been heard and determined on the merits. But that is not the present case. The Court that dismissed Mr Keogh’s first appeal heard and determined the issues argued, including the attack on Dr Manock’s evidence. The application now made to this Court cannot be said to raise or identify a failure by the Court that dismissed the first appeal to accord procedural fairness to Mr Keogh, or a failure to deal with all matters argued before it. The non-disclosure complained of, whether deliberate or not, does not alter this
In any event, I am not satisfied that it is for this Court to hold that the observations in Pantorno qualify the principle in Grierson. The qualification based on the remarks in Pantorno is a significant one, and it is not clear to me that the remarks of Dawson and Gaudron JJ in Postiglione are to be treated as recognising that Pantorno qualifies Grierson. But it is not necessary for me to decide this.
Accordingly, in my opinion existing High Court authority determines that this Court lacks jurisdiction to entertain the application now made to it, and that it lacks jurisdiction to re‑open the hearing of the dismissed appeal. That is on the assumption that the order dismissing the appeal has been perfected. It was not argued otherwise.
[18] Ibid at 168-169.
[19] Ibid at 169-170.
In Eastman v The Queen[20] the Full Court of the Federal Court also reviewed most of the relevant authorities and expressed the view that it was most likely on the state of the authorities that the Grierson principle admits of no exceptions.[21] The Court also noted that the High Court refused an application for special leave to appeal in Keogh and when doing so the Court (Gleeson CJ, Gummow and Heydon JJ) stated:[22]
There has been no decision of this Court, between 1938 and the present time, that casts doubt on Grierson. It has been followed many times by State courts, and its effect has not been overtaken relevantly by legislative amendment. As the Court of Criminal Appeal of South Australia rightly held, it stands as authority against the proposition for which the applicant contends.
[20] (2008) 166 FCR 579.
[21] Ibid at 599.
[22] Ibid at 599.
Counsel for the applicant argued that the Court had power to re-open an appeal in order to remedy an injustice which becomes apparent after the hearing of the appeal. He relied on a reference by Dixon J in Grierson to the procedure for filing a bill of review in the Court of Chancery. In the passage referred to Dixon J said:[23]
In Chancery, rehearings, that is, appeals, were no longer admitted after enrolment of the decree, although an independent bill of review might be filed based upon error apparent or on facts newly discovered (Sidney Smith's Chancery Practice, 7th ed. (1862), vol. 1, p. 809 et seq.).
These remarks were preceded by a reference to the statutory basis for appeals contained in the Criminal Appeal Act of 1912 (NSW) and the observation by Dixon J that:[24]
No considerations controlling or affecting the conclusion to be deduced from these provisions are supplied by analogous civil proceedings. Appeal is not a common law remedy, and proceedings at law are only subject to that remedy by statute (Attorney‑General v. Sillem (1930) A.C. 298 at p. 253).
The reference to the procedure in the Court of Chancery occurred when His Honour was referring in an historical context to the limitations placed on courts in the rehearing of matters. There is no suggestion in the judgment of Dixon J that this analysis in any way qualifies his view that a second appeal from a conviction cannot be entertained after the dismissal of an appeal heard on the merits.
[23] (1938) 60 CLR 431 at 436.
[24] Ibid at 436.
Counsel for the applicant also relied on s 27 of the Supreme Court Act 1935 which provides:
27—Court to do complete justice in cause so as to avoid multiplicity of suits
The court in every cause or matter pending before it shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as it deems just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of every legal or equitable claim properly brought forward by them respectively, in such cause or matter, so that, as far as possible, all matters so in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided.
It is obvious that this general provision cannot extend the specific provisions in the Criminal Law Consolidation Act 1935 which deal specifically with appeals.
In the present case the applicant appealed against conviction on the second count. The appeal was heard and dismissed on the merits. If the order for dismissal was perfected, this Court is bound by the decision in Grierson. The Court has followed that decision in this State in a line of cases. The Act does not provide for a re-opening of the appeal or a fresh appeal. If there is some power to remedy a denial of procedural fairness by the re-opening of an appeal it cannot apply in the present case as no such denial has been suggested by the applicant.
In some cases the Court may re-open an appeal if the order of the Court has not been entered in the formal records. The procedures for perfecting the orders of the Court on appeal are discussed in R v Brain[25] and R v Keogh.[26]
[25] (1999) 74 SASR 92 at 99.
[26] (2007) 175 A Crim R 153 at 173.
In the present case it is apparent from the Court file that the orders of the Court on appeal were entered into the electronic records of the Court and noted on the Information on which the applicant was tried. The parties were advised of the details of the final determination of the appeal by notice under the hand of the Registrar dated 2 April 2007.
It is clear that the orders in this case have been perfected and this was conceded by counsel for the applicant.
I would dismiss the application.
GRAY J.
I would dismiss the application. I agree with the reasons of Duggan J.
WHITE J.
I agree that the application should be dismissed for the reasons given by Duggan J.