Smith v The Queen; Ferguson v The Queen; Forti v The Queen; Grimshaw v The Queen; Coburn v The Queen (M34-94; M35-94

These applications for special leave to appeal were heard by the High Court of Australia, involving applicants Smith, Ferguson, Forti, Grimshaw, and Coburn, represented by Mr. M.S. Weinberg, QC, and Mr. P.A. Dunn. The respondent in each matter was the Crown, represented by Mr. D.R. Meagher, QC, and Mr. P.G. Lacava. The central dispute concerned the jurisdiction of the Victorian Civil Full Court to entertain an appeal by the Crown from a determination made by a trial judge.

The primary legal issue before the High Court was whether the Victorian Civil Full Court had the jurisdiction to hear the Crown's appeal. The applicants argued that the Full Court's entertainment of the appeal was unjustified and deprived them of substantive rights. A secondary issue arose regarding whether, even if jurisdiction was questionable, the case was a suitable vehicle for the grant of special leave to the Crown.

The applicants' submission was that the Crown's appeal to the Civil Full Court was fundamentally flawed due to a lack of jurisdiction. They contended that if the Full Court lacked jurisdiction, its decision was invalid. Furthermore, the applicants argued that even if the Crown were to seek special leave from the High Court, it should not be granted. This was based on the assertion that the Crown sought to present a different case on appeal than that which had been committed to in a comprehensive prosecution statement at first instance, a departure they argued the High Court would not countenance as a matter of discretion.