Visser v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2021 0112

JAN VISSER	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P, PRIEST, McLEISH, T FORREST and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2022
DATE OF JUDGMENT:	9 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 10
JUDGMENT APPEALED FROM:	R v Falanga and Visser [2014] VSC 306

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CRIMINAL LAW – Appeal – Sentence – Practice and procedure – Second or subsequent appeal against sentence based on fresh evidence – Court of Appeal has no power to entertain further application for leave to appeal against sentence after previous application has been refused on the merits – Criminal Procedure Act 2009, Part 6.3, ss 278, 280, 281 – R v GAM (No 2) (2004) 9 VR 640, Grierson v The King (1938) 60 CLR 431, Postiglione v The Queen (1997) 189 CLR 295, Lowe v The Queen (2015) 249 A Crim R 362 considered.

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Counsel
Applicant:		In person
Respondent:		Ms R Sharp SC with Mr M Wilson
Amici curiae:		Mr J Gullaci SC with Mr J Murphy
Solicitors
Applicant:
Respondent:	Commonwealth Director of Public Prosecutions

THE COURT:

Introduction

On 9 April 2014, the applicant was found guilty of conspiracy to possess a commercial quantity of an unlawfully imported border controlled drug, MDMA (‘ecstasy’).[1] After a plea in mitigation, the trial judge sentenced the applicant to 11 years’ imprisonment, and fixed a non-parole period of eight years.
[1]Criminal Code (Cth), ss 11.5(1) and 307.5(1).
By notices accepted for filing on 15 and 16 July 2014 respectively, the applicant sought leave to appeal against both his conviction and sentence. This Court heard both those applications on 25 May 2015 — the applicant chose to be unrepresented by a legal practitioner — and, after a full hearing on the merits, refused them both on 26 June 2015.[2] The High Court refused an application for an extension of time to bring an application for special leave to appeal on 17 June 2016.[3]
[2]Visser v The Queen [2015] VSCA 168 (Weinberg, Priest and Beach JJA). By a signed Notification of Result of Appeal or Application, dated 29 June 2015, given in accordance with r 2.39 of the Supreme Court (Criminal Procedure) Rules 2008, the Registrar gave notice to the applicant that his applications for leave to appeal against conviction and sentence had been refused by the Court.
[3]Visser v The Queen [2016] HCASL 139 (Bell and Gageler JJ). The Court’s reasons were:
The applicant requires an extension of time in order to bring his application for special leave to appeal. To grant an extension would be futile. No question of law suitable for the grant of special leave is raised by the application. There is no reason to doubt the correctness of the decision below. Special leave is refused.
On 22 September 2016, the applicant lodged a petition for mercy with the Attorney-General for the Commonwealth, which the Attorney-General referred to this Court by a letter dated 4 November 2019. Concurrently, the applicant filed an application for an extension of time within which to seek leave to appeal against conviction. Following a hearing in this Court on 28 and 29 July 2020 — once more the applicant was unrepresented by counsel or solicitor — on 18 December 2020 the Court dismissed the appeal based on the petition of mercy and refused the application for an extension of time in which to apply for leave to appeal.[4] The High Court subsequently refused an application for an extension of time to bring an application for special leave to appeal, and special leave to appeal, on 17 June 2021.[5]
[4]Visser v The Queen [2020] VSCA 327 (McLeish, Emerton and Osborn JJA).
[5]Visser v The Queen [2021] HCASL 111 (Gordon and Edelman JJ). The Court held that the applicant’s submissions did not provide any reason to doubt the correctness of the Court of Appeal’s conclusion on the facts of the case, so that it ‘would therefore be futile to grant the extensions of time sought’.
By an application dated 10 August 2021, the applicant makes application under s 313 of the Criminal Procedure Act 2009 (‘CPA’) for an extension of time within which to file a second application for leave to appeal against the sentence imposed on 4 July 2014. The applicant’s proposed grounds of appeal are as follows:
Ground 1: Fresh evidence has come to light since the sentence was imposed in [2014] the applicant's residential visa was cancelled in [2019] and he will be deported back to Europe, which was not mandatory cancellation at original sentencing. Due to deportation the applicant will not be granted parole and he will have to serve the full sentence resulting in an excessive sentence.
Ground 2: Fresh evidence has come to light since the sentence was imposed in [2014] as COVID Virus was not an issue at original sentencing however since [March 2020] made the sentence excessive under the circumstances that the applicant will have to serve the entire sentence in custody with major interruptions to rehabilitation and contact visits due to the COVID Virus.
A preliminary issue has arisen as to whether the applicant’s second application for leave to appeal against his sentence is competent. His first application for leave to appeal his sentence was, as we have said, determined after full consideration of the merits of his proposed grounds of appeal, and leave to appeal was refused on each ground.
R v GAM (No 2),[6] a decision of this Court, stands as authority for the proposition that, notwithstanding the existence of fresh evidence, the Court has no power to re-open an application for leave to appeal or an appeal — whether against conviction or sentence — which has been determined on the merits. The Court applied what Dixon J had said in Grierson v The King,[7] and distinguished aspects of the reasons for judgment of Dawson and Gaudron JJ in Postiglione v The Queen.[8]
[6](2004) 9 VR 640 (Winneke P, Callaway and Eames JJA) (‘GAM’).
[7](1938) 60 CLR 431 (‘Grierson’).
[8](1997) 189 CLR 295 (‘Postiglione’).
In Lowe v The Queen,[9] however, the New South Wales Court of Criminal Appeal held that the grant or refusal of leave to appeal does not create a jurisdictional bar to a further application. The Court considered that the refusal in GAM to draw a distinction between an appeal and an application for leave to appeal is not supported by Grierson, and paid insufficient regard to what Dawson and Gaudron JJ had said in Postiglione.[10]
[9](2015) 249 A Crim R 362 (Ward JA, Simpson and Davies JJ) (‘Lowe’).
[10]Lowe, 385 [118], Davies J; Ward JA and Simpson J agreeing at 364 [1] and 385 [118] respectively.
At least superficially, therefore, there appears to be an irreconcilable conflict of authority, with GAM (and Grierson) on one side of the divide and Lowe (and Postiglione) on the other. For the purposes of the present application — an application for an extension of time within which to apply for leave to appeal against sentence — that apparent conflict requires resolution, since GAM would erect an insuperable hurdle in the path of the application’s success.
Not surprisingly, the applicant submitted that this Court should follow Lowe in preference to GAM. Taking the contrary position, the respondent submitted that the present application for leave to appeal is incompetent. In adopting that position, the respondent submitted that GAM was correctly decided and should be followed.
For the reasons that follow, the proposed application for leave to appeal against sentence is incompetent. The putative application for an extension of time within which to file a notice of application for leave to appeal against sentence should therefore be refused.

Background

The application is supported by an affidavit sworn by the applicant on 12 July 2021, in which, so far as relevant, he deposed:
4. I was sentenced on 4 July 2014, sentenced to 11 year head sentence with 8 year non-parole period. Non-parole period expired 7 August 2020 head sentence expires 7 August 2023.
5. Exceptional circumstances exist of matters or events that have occurred since the date of passing sentence.
6. At sentencing on 4 July 2014, Dermot Dann QC represented me, at that relevant time there was no mention or an issue with deportation as there was no mandatory cancellation under the Migration Act 1958, or issue with parole I had received parole on two prior occasions.
7. At the sentence appeal in June 2015 at this Court, at that stage there was no issue with deportation or not being released on parole as I had received parole on two prior occasions and did not breach parole conditions and the first parole period was for 5.5 years without incident.
8. On 27 June 2019 my Residential Visa was cancelled under 501(3A) of the Migration Act 1958.
9. The Court may permit evidence of matters or events that have occurred since the date of the passing of the sentence and if the Court thinks that in the light of the additional evidence a different sentence should be imposed then even where the judge's sentencing discretion has not miscarried the case must be treated as one requiring appellate intervention.
10. Under the circumstances of the Resident Visa cancellation and not being released to my family in Australia that has made my sentence excessive as I have been in Australia since the age of ten and I am now 70 years old. I have 5 children 15 grandchildren and 15 great grand children and a partner since 1995, some 26 years, they all are Australian citizens.
11.I have accepted deportation and I am ready to be removed from Australia back to the Netherlands.
12.1 have been refused parole on two occasions 28 July 2020 and 5 July 2021, in relation to this matter by a delegate for the Federal Attorney General Tara Inverarity. My end date is 7 August 2023.
13. The contact visits were cancelled in March 2020 and till July 2021 still have not been fully functional, due to the COVID Virus.
14. When the sentence was imposed in 2014, COVID Virus was not an issue however COVID Virus has made the sentence excessive under the circumstances that I will have to serve the entire sentence in custody with major interruptions to rehabilitation due to the COVID Virus.
15. My family reside in NSW and as the both states are often on lockdown and no contact visits, I can only keep in contact via telephone calls and Zoom visits twice a week. Educational Courses have also been interrupted due to the COVID Virus.
16. The accumulation of the three main issues (a) Mandatory Resident Visa cancellation [27/06/19] resulting in deportation upon release (b) Not being released on parole, having to serve the full sentence in custody (c) COVID Virus restrictions no contact visits with the family for 18 months, the total time to serve without parole has made the sentence excessive under the circumstances.
Given that the applicant is unrepresented, by orders made on 30 August 2022 the Registrar sought submissions of amici curiae (‘amici’) on the preliminary issue ‘whether the Court of Appeal has jurisdiction to hear a second or subsequent application for leave to appeal against sentence’. The amici ‘concluded that the Court is likely to be best assisted by the [amici] advancing a case largely aligned with that of the unrepresented applicant’. The Court is grateful for the assistance it derived from the thoughtful and thorough submissions advanced by the amici.
In essence, the amici submitted that the line of authority deriving from Postiglione is binding on this Court, and requires the conclusion that this Court has jurisdiction to hear the present application. GAM, the amici submitted, was ‘plainly wrong’.

Statutory framework

Before turning to the submissions of the parties and the principal authorities, it is convenient to set out the key legislative provisions governing criminal appeals in this State. As will be seen, the Victorian provisions depart from the common form criminal appeal statutes operating in all other Australian jurisdictions, which have been the subject of examination in all of the previous Australian authorities in the present area of discourse.
Both the applications for leave to appeal against conviction and sentence refused by this Court on 26 June 2015, and the appeal based on the petition of mercy and the application for extension of time disposed of by the Court on 18 December 2020, were governed by the provisions of the CPA. The Trial Division of the Supreme Court in its original jurisdiction — the court in which the applicant was tried, convicted and sentenced — is, by virtue of s 3(1) of the CPA, an ‘originating court’.[11] Its original jurisdiction includes ‘a proceeding for an indictable offence’.
[11]The County Court in its original jurisdiction is also an originating court.
Appeals from originating courts are governed by pt 6.3 (ss 274 to 326) of the CPA, div 2 of pt 6.3 (ss 278 to 286) being concerned with appeals against sentence. Significantly, s 3(1) of the CPA defines ‘appeal’ to include ‘application for leave to appeal’.
Part 6.3 of the CPA also makes detailed provision for the determination of an appeal against conviction, including the orders to be made on a successful appeal (ss 276, 277). Section 274 formulates the right of appeal against conviction in the following terms:
A person convicted of an offence by an originating court may appeal to the Court of Appeal against the conviction on any ground of appeal if the Court of Appeal gives the person leave to appeal.
Section 278 provides for a right of appeal against sentence in the same terms:
A person sentenced for an offence by an originating court may appeal to the Court of Appeal against the sentence imposed if the Court of Appeal gives the person leave to appeal.
In each case an application for leave to appeal must be made in the requisite form within 28 days after the day on which the person is sentenced (ss 275, 279), or any extension of that period granted under s 313.
By virtue of r 2.10 of the Supreme Court (Criminal Procedure) Rules 2017,[12] the Court of Appeal may treat the hearing of the application for leave to appeal as the hearing of the appeal.
[12]Made under s 419 of the CPA.
So far as an appeal against sentence is concerned, s 280 contemplates that the Court may examine the merits of a proposed appeal at the leave stage. Section 280 provides:
(1)The Court of Appeal may refuse an application for leave to appeal under section 278 in relation to any ground of appeal if—
(a)there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed; or
(b)there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed.
(2)An application may be refused under subsection (1) even if the Court of Appeal considers that there may be a reasonably arguable ground of appeal.
(3)On refusing an application by reason of subsection (1)(b), the Court of Appeal may, if it considers it appropriate to do so—
(a)amend the sentence first imposed by substituting a less severe sentence; and
(b)make any other order that the Court of Appeal considers ought to be made.
Section 281 relevantly provides for the determination of an appeal against sentence as follows:
(1)On an appeal under section 278, the Court of Appeal must allow the appeal if the appellant satisfies the court that—
(a)there is an error in the sentence first imposed; and
(b)a different sentence should be imposed.
(2)In any other case, the Court of Appeal must dismiss an appeal under section 278.
Section 282(1) provides that, if the Court of Appeal allows an appeal under s 278, it must set aside the sentence imposed by the originating court and either impose the sentence (whether more or less severe) that it considers appropriate, or remit the matter to the originating court.
Division 7 (ss 287-326) makes further provision for powers and procedures on appeal. Section 315 provides for powers which may be exercised by the Court of Appeal constituted by a single Judge of Appeal, which include the power to give leave to appeal (s 315(1)(a)). Under s 315(2), the applicant is given an entitlement to have the application determined by the Court of Appeal constituted by two or more Judges of Appeal, where a single judge has refused leave to appeal.
Finally, s 327 contains provision for a person convicted to petition in relation to the conviction or sentence.
Part 6.4 of the CPA, which was inserted in 2019, is entitled ‘Second or subsequent appeal to Court of Appeal’.
Section 326A is entitled ‘Right of second or subsequent appeal against conviction’ and relevantly provides:
(1)A person convicted of an indictable offence by an originating court who—
(a)has exhausted the person's right to appeal against conviction under Division 1 of Part 6.3; or
(b)has previously appealed under this Part but leave to appeal was not granted or the appeal was dismissed, in whole or in part—
may appeal to the Court of Appeal against the conviction if the Court of Appeal gives the person leave to appeal.
(2)An appeal under subsection (1) may also include an appeal against a conviction for a related summary offence.
Section 326B specifies how a second appeal is to be commenced. Section 326C(1) provides for the circumstances in which the Court may grant leave to appeal under s 326A, namely, where the Court ‘is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal’.[13] Section 326D then provides:
(1)On an appeal under section 326A, the Court of Appeal must allow the appeal against conviction if it is satisfied that there has been a substantial miscarriage of justice.
(2)In any other case, the Court of Appeal must dismiss an appeal under section 326A.
[13]The terms ‘fresh’ and ‘compelling’ are further defined in s 326C(3)(a) and (b).
Division 2 of pt 6.4 provides for relevant powers and procedures relating to second appeals, or subsequent appeals. It includes provision for powers to be exercised by a single Judge of Appeal. As in s 315, there is also an express entitlement to have an application determined by two or more Judges of Appeal where leave has been refused by a single judge (s 326H(2)).

Victorian criminal appellate practice

There are a number of authorities which establish that the statutory jurisdiction vested in a court is exercised and exhausted by an order dismissing an appeal, or refusing leave to appeal, after a hearing on the merits of the (proposed) appeal. In GAM, Winneke P considered that these decisions recognised the principle that once an appeal, or application for leave to appeal, had been dismissed, the decision of the Court of Appeal had passed into record such that a further application could not be entertained by the Court (which was by then functus officio). Winneke P also explained that this principle takes its ‘colour’ from the statutory appellate process in the criminal context, not from common law principles or principles which govern appellate processes in the civil arena.[14]
[14]GAM, 652–3 [26].
Appeals are creatures of statute.[15] At common law, the powers of courts to interfere with jury verdicts in criminal cases were limited.[16] Indeed, it was not until 1907 that statutory provision was made in England by the Criminal Appeal Act 1907 (UK) for a court of criminal appeal to be established so as to afford relief ‘on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice’. The English statutory reform was largely adopted in common form criminal appeal statutes in all States of Australia (albeit that provincial replicas typically went beyond the English model, by permitting the local court of criminal appeal when overturning convictions to order a new trial, such a power not being conferred on the English Court of Criminal Appeal for several decades).
[15]Grierson, 435–6 (Dixon J); Gipp v The Queen (1998) 194 CLR 106, 145–6 [117] (Kirby J); Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220, 225 (Rich, Dixon, Evatt and McTiernan JJ); State Rail Authority (NSW) vEarthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588, 609 [72] (Kirby J); Conway v The Queen (2002) 209 CLR 203, 228 [68]–[69] (Kirby J); Nudd v The Queen (2006) 225 ALR 161, 178 [57] (Kirby J) (‘Nudd’).
[16]CDJ v VAJ (1998) 197 CLR 172, 196–7 [95]–[96] (McHugh, Gummow and Callinan JJ). See also D O’Connor, Criminal Appeals in Australia Before 1912, (1983) 7 Crim LJ 262.

In Victoria, a right of appeal against conviction and sentence to persons convicted on indictment was first given by the Criminal Appeal Act 1914 (‘the 1914 Act’). Section 3 of the 1914 Act provided:
3. A person convicted on indictment may appeal under this Act to the Full Court—
(a) against his conviction on any ground of appeal which involves a question of law alone; and
(b) with the leave of the Full Court or upon the certificate of the Judge or Chairman of General Sessions before whom he was tried that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or any other ground which appears to the Full Court to be a sufficient ground of appeal; and
(c) with the leave of the Full Court against the sentence passed on his conviction, unless the sentence is one fixed by law.
Furthermore, s 17 of the 1914 Act provided that the
powers of the Full Court under this Act to give leave to appeal … may be exercised by any Judge of the Supreme Court in the same manner as they may be exercised by the Court, and subject to the same provisions; but, if the Judge refuses an application on the part of the appellant to exercise any such power in his favour, the appellant shall be entitled to have the application determined by the Full Court.
The provisions of the 1914 Act were reproduced in the Crimes Act 1915, and in successive Crimes Acts thereafter. By the time GAM was decided, s 17 of the 1914 Act had been replicated in s 582 of the Crimes Act 1958 (albeit that, following the creation of the Court of Appeal in July 1995, references to the Court of Appeal and to a Judge of Appeal had been substituted for the Full Court and any Judge of the Supreme Court).
Notwithstanding that, since 1914, a single judge had enjoyed power to grant leave to appeal, that power does not appear to have been utilised for more than 80 years until, in late 1999, selected applications for leave to appeal against sentence began being referred to a single judge for determination pursuant to s 582. Prior to that, ‘the inveterate practice of the appellate courts in Victoria [was to treat] an application for leave to appeal as if it were an appeal’.[17] Hence, applications for leave to appeal against both conviction and sentence were almost invariably considered by a bench of three judges, and a determination made after a full hearing on the merits of the proposed appeal.
[17]R v Rich [1998] 4 VR 44, 47 (Brooking J, Winneke P and Buchanan JA agreeing).
The Victorian practice was described by Winneke P in GAM:[18]
In this State, the vast majority of matters which come before the Criminal Division of the Court of Appeal are precipitated by the filing of applications for leave. This is in accordance with the provisions of Pt VI of the Crimes Act 1958, which derive from the Criminal Appeal Act 1907 (UK). Relevantly, the statutory scheme contained in Pt VI provides only for a limited right of appeal to persons convicted; namely on a ground which involves a question of law alone; or upon a ground certified by the trial judge. Otherwise, s 567 of the Act only provides for appeals against conviction or sentence ‘with the leave of the Court of Appeal’. As I have already said, the majority of challenges to convictions come before the court by way of application for leave. Thus, it is the practice of the court to hear and determine the proposed grounds of appeal in the course of the application. If, after full argument, the court is of the view that the appeal should be allowed, it grants the application and announces that the appeal is treated as having been instituted and heard instanter, and allowed. If, on the other hand, the court comes to the view that the grounds have no merit, and that the appeal should be dismissed, it simply refuses or dismisses the application. These practices are in conformity with the Supreme Court (Criminal Procedure) Rules. Rule 2.01 defines ‘appeal’ as meaning an appeal under the Crimes Act and ‘includes an application for leave to appeal’. Rule 2.07(1) provides that:
‘If an application for leave to appeal is made to the Court of Appeal, the Court of Appeal may treat the hearing of the application as the hearing of the appeal.’
Thus, if after a full hearing of the application upon its merits, the court dismisses or refuses an application for leave to appeal, the notification of its determination treats that determination as final and one which passes into record.
[18]GAM, 641–2 [5] (footnote omitted; emphasis added).
Since 28 February 2011, selected applications for leave to appeal against conviction and sentence have been determined by a single judge exercising powers given by s 315(1)(a) of the CPA, which provides — as did its immediate forerunner, the now repealed s 582 of the Crimes Act 1958 — that the Court of Appeal constituted by a single Judge of Appeal may give leave to appeal.[19] Despite that, however, the great majority of applications for leave to appeal against conviction under s 276 of the CPA have continued to be dealt with by a bench of three judges, and many applications for leave to appeal against sentence under s 281 have been dealt with by a bench of two or three judges without any antecedent consideration by a single judge under s 315(1)(a). Furthermore, if a single judge of appeal refuses leave to appeal, some applicants elect to have the application for leave determined by two or more judges.[20]
[19]The Supreme Court (Chapter VI Amendment No 6) Rules 2011 (SR No 6 of 2022) came into operation on 28 February 2011 (see r 3). In turn, Court of Appeal Practice Direction No 2 of 2011 set out the practice to be followed in the Court of Appeal in dealing with applications for leave to appeal against conviction or sentence filed on or after that commencement date, including the consideration of applications for leave to appeal by a single judge. See now Practice Note SC CA 1, which set out the practice to be followed in the Court of Appeal in dealing with all applications for leave to appeal against conviction or sentence and Crown appeals against sentence ‘whenever commenced’.
[20]Section 315(2) of the CPA.
When a bench of two or three (or, for that matter, five) judges considers an application for leave to appeal against conviction or sentence, the practice continues to be that the application is determined on the merits of the proposed appeal. And, as Winneke P described the practice in GAM, once there has been a full hearing of the application upon the merits, and the Court determines that the grounds have no merit, the Court will often simply dismiss or refuse the application for leave to appeal, and the notification of the Court’s determination treats that determination as final and one which passes into record.

The applicant’s submissions

Before considering the authorities relied on by the parties, it is necessary to summarise their principal arguments.
The applicant submitted that although his first application resulted in leave to appeal being refused, that refusal is not the equivalent of the dismissal of an appeal.[21] Postiglione, he submitted, contemplates that an appellate court may entertain a subsequent application for leave to appeal against sentence notwithstanding the failure of an earlier application. Moreover, in Lowe, the NSW Court of Criminal Appeal distinctly held that the refusal of an application for leave to appeal is not equivalent to the dismissal of an appeal.
[21]He cited Lowe, 365 [8].

The submissions of the amici curiae

The amici supported the applicant’s principal contentions. They submitted as follows:
•first, there is a cogent line of authority deriving from Postiglione to the effect that a court statutorily invested with appellate jurisdiction ordinarily has jurisdiction to hear a second application for leave to appeal notwithstanding a first application has been refused;
•secondly, there is a ‘less persuasive’ line of authority to the contrary, originating in Grierson and ‘epitomised’ in GAM;
•thirdly, the line of authority deriving from Postiglione ‘is binding on this Court, cannot be distinguished, and thus requires the conclusion that this Court has jurisdiction to hear the present application’; and
•fourthly, and alternatively, GAM is ‘plainly wrong’, so much being a compelling reason to depart from it.
Ultimately, the amici submitted that either GAM is plainly wrong, or Lowe is plainly wrong. There being ‘no middle ground’, counsel submitted, this Court had to decide the matter for itself.

The respondent’s submissions

Counsel for the respondent submitted that, having refused the first application following a hearing on the merits, this Court does not have jurisdiction to entertain a second or subsequent application for leave to appeal against sentence.
The respondent’s counsel submitted that the text and context of pt 6.3 confirm that the CPA does not confer jurisdiction to hear a second or subsequent application for leave to appeal against sentence when a previous sentence appeal has been dismissed, or an application for leave has been refused. Relying on GAM,[22] the respondent’s counsel submitted that Lowe should not be followed. Counsel submitted that Winneke P in GAM (with whom Callaway and Eames JJA agreed) was correct not to accept that relevant authorities bound the Court to draw a distinction between the power of an appellate court to re-open a criminal appeal which has been dismissed on the merits and an application for leave which has been refused after argument upon the merits,[23] and to hold that the Court’s power to re-open an appeal or application which has been determined on the merits is exhausted once that determination has been perfected.[24]
[22]Counsel also relied on Donohue v The Queen (No 3) [2020] VSCA 302 (Priest, Niall and T Forrest JJA) (‘Donohue (No 3)’).
[23]GAM, 657 [34].
[24]Ibid 660 [40].
Both Postiglione and Lowe, counsel submitted, dealt with the unique context of a sentencing disparity that arose on the subsequent sentencing of a co-offender. Each of the decisions referred to in Lowe[25] as illustrating the application of the dicta in Postiglione were also cases in which the applicant sought (or in future might seek) leave to appeal against sentence on the grounds of a disparity that arose because of the subsequent sentencing of a co-offender.
[25]Those decisions were R v Alameddine [2004] NSWCCA 286, [100]; Clay v The Queen [2007] NSWCCA106, [31]; R v Stead [1999] NSWCCA 41, [37], [43]; and R v Spiero (2001) 78 SASR 531; cited in Lowe, 382–3 [107], 384 [113], 380 [99]–[100] and 380 [101]–[102].

The case law

R v Edwards (No 2)

The seminal Australian case dealing with the central issue in this case is R v Edwards (No 2).[26] As will be seen, Dixon J in Grierson cited Edwards (No 2) as authority for the proposition that an appellate court cannot entertain a second appeal against conviction after the dismissal, upon the merits, of an appeal or application for leave to appeal. It is necessary to identify the principles that may be derived from that case.
[26][1931] SASR 376 (‘Edwards (No 2)’).
The applicant had been convicted at trial of sodomy. On 9 May 1931, in Edwards v The King,[27] the South Australian Court of Criminal Appeal (Angas Parsons, Napier and Piper JJ), dismissed: an appeal against the conviction on matters of law; applications for leave to appeal against the conviction and sentence on matters of fact; and an application for leave to amend the grounds of appeal. Later that year, in December 1931, the applicant again sought to challenge his conviction. A similarly constituted Court of Criminal Appeal described the earlier proceeding as follows:[28]
This Court, in April last, heard an appeal against the conviction on matters of law, and applications by the appellant (1) for leave to appeal against the conviction on matters of fact; (2) for leave to appeal against the sentence, and (3) for leave to amend his grounds of appeal. After a hearing lasting five days the Court reserved its judgment, and on 9th May ordered that the appeal be dismissed, and refused the three applications for leave. This order was duly drawn up, passed and entered. On 22nd May 1931 the High Court granted special leave to appeal against that order, and on 27th May the High Court dismissed the appeal.
[27][1931] SASR 121.
[28]Edwards (No 2), 376.
In the later proceeding, the applications were
first, for extension of time within which the appellant might give notice of appeal against his conviction, on the ground that since the conviction certain evidence had come to his knowledge which it was said was not available at the time of his trial, or at any time prior to the conclusion of his appeals to this Court and the High Court of Australia, and which, with reasonable diligence, could not have been known, procured or made available, prior to such time; and which evidence, it was said, would prove that he was not guilty of the offence of which he was convicted. And, second, for leave to appeal against the conviction on the same grounds.[29]
[29]Ibid.
The Court of Criminal Appeal directed that the question of the jurisdiction of the Court to grant leave to appeal, after having heard and dismissed an appeal and application for leave to appeal, be argued. At that time, criminal appeals were governed by the Criminal Appeals Act 1924 (SA), s 5 of which provided (so far as relevant):
A person convicted on information may appeal under this Act to the Full Court (a) against his conviction on any ground of appeal which involves a question of law alone …; (b) upon the certificate of the Judge of the Supreme Court before whom he was tried that it is a fit case for appeal, against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact; (c) with the leave of the Full Court, upon any such ground as is mentioned in sub-division (b) hereof or any other ground which appears to the Full Court to be a sufficient ground of appeal; and (d) with the leave of the Full Court, against the sentence passed on his conviction, unless the sentence is one fixed by law.
Significantly, the Court observed:[30]
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.
[30]Ibid 378 (emphasis added).

Ultimately, the Court held:[31]
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.
[31]Ibid 380.
In our opinion, the Court in Edwards (No 2) clearly contemplated that a second application for leave to appeal could not be entertained where the Court had previously ‘heard the merits’ of the application. Where an earlier application for leave to appeal has been heard and determined on the merits of the proposed appeal, there was no jurisdiction to deal with a subsequent application.

Grierson

Edwards (No 2) largely underpins the High Court’s judgment in Grierson, which, in turn, largely underpins this Court’s judgment in GAM.
The applicant in Grierson had been found guilty at trial in December 1932 of assault and robbery, and maliciously doing grievous bodily harm. In March 1933, an appeal to the NSW Court of Criminal Appeal against conviction was dismissed, as was an application to the High Court for special leave to appeal, in August 1933. Subsequently, having received representations in June 1934, the Minister of Justice for NSW refused to recommend an inquiry under s 475(1) of the Crimes Act 1900 (NSW). Three years later, in July 1937, the applicant appeared before the Court of Criminal Appeal in support of a further application for leave to appeal against conviction and sentence, on the basis that ‘certain material facts had become known respecting the evidence of one of the material witnesses for the Crown in the trial’. A preliminary objection, however, was taken by the Solicitor-General that the court had no jurisdiction to entertain the application by reason of the fact that an appeal had already been entertained by the court and dismissed after the merits had been determined. Upholding that preliminary objection, Jordan CJ (with whom Davidson and Halse Rogers JJ agreed) said:[32]
The point which has been raised is exactly covered by the decision … in R v Edwards [No 2], and I am of opinion that this court should follow that decision. When an appeal has once been fully heard and disposed of, that is, in my opinion, an end of the matter so far as appeal is concerned, and the prisoner cannot continue to appeal from time to time thereafter, whenever a new point occurs to him or to his legal advisers or whenever a new fact is alleged to have come to light. This does not mean that injustice must necessarily occur when new substantial evidence pointing to a prisoner’s innocence is discovered after his appeal has been finally disposed of. In such a case recourse may be had to sec 26 of the Criminal Appeal Act of 1912, or to sec 475 of the Crimes Act 1900. There is no reason to suppose that the procedure provided by those sections is not adequate for the consideration of any matter which it may now be sought to raise on behalf of the prisoner. For these reasons I am of the opinion that the preliminary objection taken on behalf of the Crown must be sustained, and that we must decline to entertain the present application.
[32]See ibid 432-3 (citation omitted).
The High Court refused special leave to appeal. Rich J observed that the Court of Criminal Appeal was established by the Criminal Appeal Act 1912 (NSW), but that s 26 of the Act preserved the pardoning power of the Governor, and s 475 preserved the power to conduct an inquiry into a conviction. He then said:[33]
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.
[33]Grierson, 434.
Starke J ‘agreed entirely with the reasons given by Jordan CJ’,[34] and McTiernan J agreed with the reasons for judgment of both Rich J and Dixon J.[35]
[34]Ibid 435.
[35]Ibid 437.
Dixon J made the following observations:[36]
The Supreme Court held, in accordance with a decision of the Supreme Court of South Australia (R v Edwards [No 2][37]), 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 (NSW) 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[38]). 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;[39] Horne (or Herne) v Bushell;[40] Burleigh v Harris;[41] Winchurch v Belwood[42]).

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). Under the Judicature system an action may be brought to set aside a judgment obtained by fraud, but it is an independent proceeding equitable in its origin and nature (Ronald v. Harper,[43] per Cussen J; Halsbury’s Laws of England, 2nd ed, vol 19, p 266, and the cases there collected, particularly Jonesco v Beard[44]). But under that system no court has authority to review its own decision pronounced upon a hearing inter partes after the decision has passed into a judgment formally drawn up (In re St Nazaire Co[45]). 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.
Notwithstanding the dismissal of an appeal, the powers conferred by sec 26 of the Criminal Appeal Act of 1912 (NSW) and by sec 475 of the Crimes Act 1900 (NSW) remain exercisable at the instance of the executive.
[36]Ibid 435–6 (emphasis added).
[37][1931] SASR 376
[38](1916) 12 Cr App R 14, at pp 14, 15.
[39](1920) 15 Cr App R 36.
[40](1924) 18 Cr App R 10.
[41](1882) 3 LR (NSW) 329.
[42](1887) 8 LR (NSW) 118; 3 WN (NSW) 119.
[43](1916) 12 Cr App R, at p 15.
[44](1920) 15 Cr App R 36.
[45](1879) 12 Ch D 88.

In our view, the following (at least) may be drawn from the reasons for judgment of Dixon J. First, the jurisdiction of a court of criminal appeal is statutory. Apart from that conferred by statute, the court has no further authority to set aside a conviction on indictment, there being no general appellate power in criminal cases flowing from independent sources. Secondly, the determination of an appeal is ‘definitive’. Thirdly, the remedies for challenging verdicts and judgments that existed prior to the statutory creation of a right of appeal did not contemplate serial challenges. Fourthly, although the Court of Criminal Appeal in England may permit an applicant to withdraw a notice of abandonment (notwithstanding that it operates as a dismissal of the appeal), it does so in circumstances whereby ‘there has been no determination by the court’. In no English case has an appeal been reopened or a fresh appeal been entertained after an earlier determination. Fifthly, once an appeal has been dismissed, a review of a conviction remained available at the instance of the executive.
In our opinion, the observation by Dixon J in Grierson that a second appeal cannot be entertained once an earlier appeal or application for leave to appeal has been dismissed upon the merits, is entirely consistent with the holding in Edwards (No 2) to the effect that the Court has power to entertain a second application for leave to appeal ‘where it has not heard the merits of the application’.

R v McNamara

It is convenient to turn next to McNamara,[46] a case in which an issue similar to that which arose in GAM had earlier been the subject of decision by the Court of Criminal Appeal.
[46]R v McNamara (No 2) [1997] 1 VR 257 (Winneke P, Charles JA and Southwell AJA) (‘McNamara’).
In McNamara, the applicant had, in October 1993, been convicted of drug trafficking. Later, on 7 July 1994, the Court of Criminal Appeal dismissed an application for leave to appeal against conviction.[47] Although the application for leave to appeal had contained some 11 grounds, only two were argued. Significantly, a ground that contended that the applicant had wrongly been denied the right to give unsworn evidence at trial was not argued.
[47]R v McNamara [1995] 1 VR 263.
Subsequently, by a summons issued in November 1995, the applicant sought to reopen the application for leave to appeal against his conviction dismissed on 7 July 1994. The question which fell for determination was whether this Court had jurisdiction to accede to an application, however made, to re-open an appeal or an application for leave to appeal which had been heard and determined on its merits.[48] Counsel for the applicant conceded that the general rule is that an application for leave to appeal against conviction, once heard, cannot be re-opened; but he contended that the right to re-open is not excluded by statute, and there was authority for the proposition that the court may reconsider an application in special or exceptional circumstances.[49]
[48]McNamara, 260.
[49]Ibid 261.
The Court reviewed a number of authorities which provided strong persuasive authority for the proposition that there is no jurisdiction to re-open an application which has been determined on the merits.[50] Grierson, the Court held, was not merely persuasive. It was binding authority for the proposition that an appeal or application for leave to appeal that had been determined ‘on the merits’ could not be re-opened after a final determination.[51] The Court held that there had been a determination on the merits notwithstanding that one ground of appeal had not been argued. To hold otherwise would be to interpret the expression ‘on the merits’ as excluding such of the merits as counsel at the time did not regard as worthy of argument, with the result that an applicant could continue to appeal from time to time whenever a new point occurs to him or to his legal advisers.[52]
[50]The cases included: Edwards (No 2) (referring to R v Barker (1910) 5 Cr App R 283 and R v Pitman (1916) 12 Cr App R 14); R v Moore [1957] 1 WLR 841; R v Grantham [1969] 2 QB 574; R v Gardiner [1970] VR 278; R v Zakarian [1971] VR 455; and R v Medway [1976] QB 779.
[51]Ibid 263.
[52]Ibid 264 (referring what Jordan CJ had said in Grierson, 432).
As to the claimed existence of ‘exceptional circumstances’, the Court observed:[53]
Indeed, even were the court free to intervene upon exceptional circumstances, we would hold that the application must fail, simply for the reasons that the proven circumstances cannot be categorised as exceptional. The applicant’s legal advisers have had second thoughts or have taken a view different from their predecessors, as to the merits of one of the grounds of appeal. Neither that fact nor its consequences can be regarded as quite exceptional. Accordingly this application must fail.

Postiglione

[53]Ibid 268.

Postiglione, which was decided after McNamara, was substantially relied upon by the court in Lowe to support its conclusions. In essence, both the applicant and the amici contend that the reasons of Dawson and Gaudron JJ in Postiglione diminish the force of what Dixon J observed in Grierson. They contend that this Court should have followed Postiglione in GAM.
In Postiglione the applicant pleaded guilty to two charges of conspiracy to import heroin and cocaine respectively. One of his co-conspirators was George Savvas. Postiglione co-operated with authorities and undertook to give evidence. He was sentenced, and made an application for leave to appeal against that sentence, before Savvas stood trial. On that occasion, the Court of Criminal Appeal (NSW) granted leave to appeal, but dismissed the appeal. It was not clear, however, whether the Court’s orders were ever perfected.
After the appeal was dismissed, Savvas stood trial, was convicted and was sentenced. Postiglione then brought a second application for leave to appeal against sentence in which he complained of marked disparity between his sentence and that imposed on Savvas. That application came before a differently constituted Court of Criminal Appeal. It was treated as a separate proceeding, not merely as an application to reopen the earlier appeal. The Court granted leave to appeal but dismissed the appeal. When Postiglione’s appeal came before the High Court certain procedural difficulties were identified. Among them, the Notification of Court’s Determination, which apparently operated as the final order of the Court of Criminal Appeal, indicated that Postiglione was granted leave to appeal and that the unsuccessful appeal was against conviction rather than against sentence. Further, it was not clear whether that order was ever perfected.
Dawson and Gaudron JJ observed that the
decision to grant leave on the second application and to dismiss the appeal then brought involved the assertion of jurisdiction to entertain the second application and, on the assumption that an order giving effect to the decision on the first application was perfected, an assertion of jurisdiction to entertain a second appeal against sentence.
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.[54] 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.[55] 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.[56] 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.[57]
[54](1938) 60 CLR 431.
[55]See, in this regard, R v Shannon (1982) 32 SASR 5; cf R v Caruso (1988) 37 A Crim R 1 where an application for leave to appeal against conviction was entertained notwithstanding the earlier disposition of an appeal against sentence on the footing that the Criminal Law Consolidation Act 1935 (SA) allows for separate appeals against conviction and sentence.
[56]Pantorno v The Queen (1989) 166 CLR 466 at 474, per Mason CJ and Brennan J; at 484, per Deane, Toohey and Gaudron JJ.
[57]Postiglione, 299–300.
Having determined that the Court of Criminal Appeal erred in not holding that Postiglione’s sentence involved a marked disparity giving rise to a justifiable sense of grievance vis-à-vis the sentence imposed on Savvas, Dawson and Gaudron JJ said:[58]
Some of the procedural difficulties involved in this case are referable to the fact that Postiglione was sentenced and his application for leave to appeal determined before his co-offender, Savvas, was brought to trial. That is the course usually taken in cases where an accused has agreed to give evidence against a fellow criminal. And there are good reasons why that course should be followed. However, it involves the difficulty, if leave to appeal against sentence is granted and the subsequent appeal dismissed, that a person in Postiglione’s position is denied an opportunity to complain of sentence disparity.
Ordinarily, it is of no consequence whether an order is made dismissing an application for leave to appeal or whether leave is granted and the appeal dismissed.[59] However, putting aside applications which are frivolous or vexatious, there is no reason in principle to prevent a person bringing a second application for leave to appeal if an earlier application has been dismissed.[60] An application based on matters agitated on a previous application is properly to be regarded as frivolous or vexatious. But that is not the case where an application is based on a sentencing disparity which has subsequently emerged. That is always a possibility in a case of this kind. That being so, the interests of justice require that, if an application for leave against sentence is to be heard and determined against an applicant before a co-accused is brought to trial, leave be refused, rather than that the appeal be dismissed.
[58]Postiglione, 304–5.
[59]See Bailey v Director of Public Prosecutions (1988) 62 ALJR 319 at 319–320; 78 ALR 116 at 117, per Mason CJ, Brennan, Dawson and Toohey JJ.
[60]As to the special features which distinguish an application for leave or special leave to appeal from other legal proceedings, see Coulter v The Queen (1988) 164 CLR 350. See also Collins v The Queen (1975) 133 CLR 120 at 122, per Barwick CJ, Stephen, Mason and Jacobs JJ; Attorney-General (Cth) v Finch [No 1] (1984) 155 CLR 102 at 105; Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth (1991) 173 CLR 194 and Carson v John Fairfax & Sons Ltd (1991) 173 CLR 194. See also R v Gibbings [19361 SASR 204 where an application for leave to appeal against conviction was entertained notwithstanding that an earlier application for leave to appeal against sentence had been dismissed, it being held that there may be separate appeals against sentence and conviction.
Kirby J agreed in the orders proposed by Dawson and Gaudron JJ. He said:[61]
This Court was informed that the orders of the Court of Criminal Appeal following the first appeal were not perfected. In the second application, that Court certainly purported to exercise and affirm its jurisdiction. Both parties before this Court supported that conclusion. In the nature of complaints of disparity in sentencing (and as the facts of this case demonstrate) it will quite often be the case that the disparity which is said to give rise to the justifiable sense of grievance is not finally known until a considerable time after the complaining prisoner was sentenced. Where the final sentencing of a co-offender, or of another relevant offender, remain outstanding it may well be sensible for a Court of Criminal Appeal to adopt the expedient proposed by Dawson and Gaudron JJ in their reasons. I shall assume that there was no jurisdictional barrier to the appellant’s second application. I shall return to that question in determining the orders which should be made.

GAM

[61]Postiglione, 333.

At this juncture it is convenient to return to GAM, which, to an extent, was pivotal to the respondent’s argument that the proposed application for leave to appeal is incompetent.
The applicant in GAM had been convicted at trial of sexual offending against his daughter. Subsequently, this Court heard applications for leave to appeal against both conviction and sentence. The application with respect to conviction was refused, but the application with respect to sentence succeeded. In the result, the Court granted the application for leave to appeal against sentence, allowed the appeal and substituted a lower sentence. After the Court’s determinations had been perfected the applicant sought an extension of time within which to file a further application for leave to appeal against conviction, on grounds that the complainant had given false evidence at trial and had by statutory declaration recanted her complaints of sexual assault and admitted her evidence was false.
Winneke P gave the lead judgment. After describing appellate practice in this State in the passage earlier referred to,[62] he said that
the real issue between the applicant and the Director of Public Prosecutions is whether, assuming that there is merit in the grounds identified by the applicant in his proposed further application for leave to appeal against conviction, this court has the power to entertain that application and, thus, ‘re-open’ the former application which has already been refused on its merits; or whether the only avenue now open to GAM is to apply to the Attorney-General pursuant to s 584 of the Crimes Act (the ‘petition of mercy’ provisions). If the court considered that it had the power to ‘re-open’ the application for leave to appeal against conviction, and considered that there were merits in the proposed grounds, it would no doubt grant the application to extend the time limited by the Rules for doing so. If the court regarded that it had no power, and that its previous disposal of the matter has rendered it functus officio, it would simply refuse the application for extension of time.[63]
[62]At [36] above.
[63]GAM, 643 [7].
Winneke P made it clear that the authorities
demonstrate that, whilst an abandoned appeal might be re-opened where the abandonment has been procured by fraud or procedural error or mistake, the hearing and disposal of an appeal or application on its merits renders the court functus officio.[64]
[64]Ibid 645 [12].
We need not analyse the English authorities to which Winneke P referred.[65] He discussed many of the Australian authorities — including Gardner,[66] Zakarian,[67] Saxon,[68] McNamara, R v Edwards (No 2) and Grierson — and described their effect as follows:[69]
The High Court of Australia, and Courts of Criminal Appeal in the States which adopted a criminal appellate system modelled on the Criminal Appeal Act 1907 (UK), had themselves concluded (before the English authorities to which I have referred) that an appeal or application which had been decided on its merits and had passed into record, could not be re-opened.
[65]They included: R v Moore [1957] 1 WLR 841; R v Grantham [1969] 2 QB 574 (applying R v Pitman (1916) 12 Cr App R 14; R v Healey (1956) 40 Cr App R 40; R v Moore [1957] 1 WLR 841); and R v Pinfold [1988] QB 462.
[66]R v Gardner [1970] VR 278.
[67]R v Zakarian [1971] VR 455.
[68]R v Saxon (1998) 101 A Crim R 71.
[69]GAM, 648 [19].
Winneke P also said:[70]
Many of the authorities to which I have referred were applied by this court in its decision in R v McNamara (No 2), above. In my view, and subject to what appears hereunder, they result in the conclusion that this court has no power to re-open either an application for leave to appeal or an appeal (whether against conviction or sentence) which has been determined on the merits on the grounds of fresh evidence.
The principle established in Grierson’s case has consistently been followed in those States of Australia whose statutory appellate procedures derive from the English Act of 1907. Thus, in Victoria, the principles have been applied in McNamara (No 2), above and also in R v De Jonk;[71] in Western Australia in R v Stone;[72] and Vella v R;[73] in New South Wales in R v Saxon;[74] and in South Australia in R v Caruso.[75] These decisions appear to recognise the principle that once an appeal or application for leave to appeal against conviction or sentence has been dismissed and the decision of the Court of Appeal has passed into record, a further appeal or application, based on fresh evidence, cannot be entertained by the court which is, by then, functus officio. The principle takes its colour from the statutory appellate process contained in Pt VI of the Crimes Act including as it does, the prerogative process contained in s 584. The substance of that statutory process does not take its colour from common law principles nor from principles which govern appellate processes in the civil arena. Thus, once the application for leave or the appeal has been decided on its merits and has passed into record, it cannot be re-opened. Whether the appeal is ‘an appeal’ as of right or one for which leave is required does not matter.
[70]Ibid 652–3 [25]–[26].
[71]Unreported, Court of Appeal, 18 September 1997, per Tadgell JA at 11.
[72](1989) 42 A Crim R 189 at 191.
[73](1991) 4 WAR 278 at 280.
[74](1998) 101 A Crim R 71 at 74ff.
[75](1988) 49 SASR 465 at 480–1.
So far as the relevant observations of Dawson and Gaudron JJ in Postiglione were concerned, Winneke P said:[76]
These observations suggest that their Honours are drawing a distinction between the refusal of an application for leave to appeal, and the formal dismissal of an appeal. Their Honours appear to conclude that a refusal of an application for leave, even after the merits have been considered, is of an interlocutory nature, and will not prevent the re-opening of that application and the appeal in the event that it becomes necessary when further relevant facts are known. Whether their Honours were intending to confine their remarks to applications for leave to appeal against sentence in circumstances where co-accused were to be sentenced at a later time (and were, in essence, suggesting that the orders should not be perfected until the co-offenders fate is known), or whether their Honours were intending their remarks to apply generally to all applications for leave to appeal, be they against conviction or sentence, is not entirely clear to me.[77] Their Honours referred to a number of decisions which discuss special features distinguishing applications for leave or special leave to appeal from other legal proceedings, both criminal and civil in nature. Each of those decisions involves circumstances which are quite different in their nature from those which apply to criminal appellate procedures which derive from the Criminal Appeals Act 1907 (UK).
[76]GAM, 656 [31].
[77]The authorities to which we have referred, and which preceded and include Grierson v R, make it clear, in my view, that all applications for leave, and appeals — when decided on the merits and the orders perfected — are final. However there may be a query whether an application to a single judge pursuant to s 582 of the Crimes Act (Vic) results in a final order in the event that the applicant fails to make an election within the time prescribed by the Rules.

Winneke P said it was clear from the judgments in Postiglione that the authority of Grierson had ‘not been disturbed’,[78] and observed:[79]
In the light of the review which I have made of the authorities in England and in this country, I do not accept the submission of counsel for the applicant that such authorities bind this court to draw a distinction between the power of an appellate court to re-open a criminal appeal which has been dismissed on the merits and an application for leave which has been refused after argument upon the merits. Counsel has relied, for the existence of such a distinction, upon the various judgments delivered in Postiglione … particularly the joint judgment of Dawson and Gaudron JJ where their Honours state that there is ‘no reason in principle to prevent a person bringing a second application for leave to appeal if an earlier application has been dismissed’. However, neither McHugh J nor Gummow J expressed any view supporting the validity of such a distinction; and Kirby J expressed the view that, in circumstances where the sentencing of the co-offender remains outstanding, it may ‘well be sensible to adopt the expedient proposed by Dawson and Gaudron JJ in their reasons’ (emphasis added). However, his Honour further stated that he was prepared to assume that there was, in the case at hand, ‘no jurisdictional barrier to the appellant’s second application’. His Honour did not find it necessary to refer to Grierson v R.
In the light of the peculiar circumstances which existed in Postiglione, and the various reasons given by the judges to resolve them, I cannot accept the submission of the applicant’s counsel that the decision binds this court to conclude (contrary to Grierson v R) that an application for leave to appeal against conviction which has been dismissed or refused on its merits can be re-opened on the basis of ‘fresh evidence’; but that an appeal against conviction, which has been dismissed on the merits, cannot. That would truly be ‘an expedient’ because it would wholly depend upon the words used by the appellate court in disposing of the application. I should also add that, as a matter of practice in this State, petitions for mercy (generally on the basis of “fresh evidence”) are — and have been — presented to the executive pursuant to s 584 of the Crimes Act following the conviction and sentence of persons charged with indictable offences; and the dismissal or refusal thereafter (on the merits) of their applications for leave to appeal.[80]
[78]GAM, 657 [33].
[79]Ibid 657–8 [34]–[35].
[80]Compare Re Matthews and Ford [1973] VR 199 at 200; Re Ratten [1974] VR 201 (application for leave dismissed by Full Court [1971] VR 87); Re Knowles [1984] VR 751 at 759; Re MJR (2000) 1 VR 119 at 125.
In short concurring reasons, Callaway JA agreed[81]
that this court has no power to re-open, on the grounds of fresh evidence, either an appeal or an application for leave to appeal[82] that has been determined on the merits and that this application for an extension of time within which to give notice of a second application for leave to appeal against conviction should be refused.[83]
[81]GAM, 661 [42].
[82]The President’s judgment and mine are confined to applications determined by the Court of Appeal, as opposed to those determined by a single judge of appeal pursuant to s 582 of the Crimes Act 1958. I say nothing about the latter, even where no notice of election to have the application determined by the Court of Appeal is received by the registrar under r 2.08.1.
[83]The Rules contemplate that both a notice of application for leave to appeal and a notice of application for extension of time should be filed at the same time but the practice of the court, correctly in my opinion, is to disregard the application for leave to appeal if the extension is refused.
Having set out the text of ss 567 and 568 of the Crimes Act 1958, Callaway JA continued:[84]
The ‘appeal against conviction’ referred to in s 568(1) and (2) is not an application. It is an appeal that has been brought as of right pursuant to s 567(a) or upon the certificate of the trial judge pursuant to s 567(b)[85] or with the leave of the Court of Appeal granted pursuant to s 567(c). The ‘appeal against sentence’ referred to in s 568(4) and (5) is similarly not an application. It is an appeal brought with the leave of the Court of Appeal granted pursuant to s 567(d).[86] That is why, where an application for leave to appeal against conviction or sentence is heard by the Court of Appeal, as opposed to a single judge of appeal, and succeeds, the opening sentences of the order are:
The application for leave to appeal against [conviction or sentence, as the case may be] is granted. The appeal is treated as instituted and heard instanter and is allowed.
Those words satisfy the condition precedent in s 567(c) or (d), as the case may be, and enliven the jurisdiction of the court to entertain and deal with the appeal pursuant to s 568.
Although there are other provisions in Pt VI which distinguish between applications for leave to appeal and appeals,[87] the distinction is rarely of importance in practice. The court treats applications for leave to appeal, except those heard by a single judge of appeal pursuant to s 582, as the hearing of an appeal. Where the application fails, even if the grounds were reasonably arguable, our practice is to refuse leave to appeal, frequently expressed as ‘dismissing the application’,[88] rather than to grant leave to appeal but dismiss the appeal. …
I do not stay to consider at any length what the position might have been in the absence of authority. It is of limited assistance to say that an appeal, or application for leave to appeal, against conviction or sentence is statutory. All appeals are statutory. When a statute uses expressions such as ‘leave to appeal’ and ‘appeal’ it may be supposed that the legislature intends them in their ordinary sense. On the civil side, there are important legal and practical differences between applications for leave to appeal and appeals.[89] True it is, nevertheless, that, even in the absence of authority, s 584, which is in similar terms to s 19 of the Criminal Appeal Act 1914, might have been held to throw light on the meaning and effect of those terms in Pt VI.[90] It is unprofitable to consider whether the reference by Dixon J to ‘an appeal or application for leave to appeal’ in Grierson v R[91] was obiter. The authorities here and in England compel the conclusion [that the court has no power to re-open, on the grounds of fresh evidence, either an appeal or an application for leave to appeal that has been determined on the merits]. It should also be said that the result is conducive to the practical administration of criminal justice.

R v Parenzee

[84]GAM, 663–4 [45]–[47].

[85]In practice appellants rarely use s 567(a) nowadays and s 567(b) is a dead letter.

[86]In either case, s 567(c) or (d), the leave of the Court of Appeal may have been granted by a single judge of appeal pursuant to s 582. The condition precedent in s 567 is satisfied because, as the language of s 582 makes clear, the single judge of appeal exercises the power of the Court of Appeal to give leave.

[87]See, for example, ss 576 and 582. In reading Pt VI it is important to remember that s 566 defines ‘appellant’ in words wide enough, and intended, to include an applicant for leave to appeal.

[88]R v Bolton and Barker [1998] 1 VR 692 at 700 line 2 and fn 26. Strictly speaking, an application should be ‘granted’ or ‘refused’ and an appeal should be ‘allowed’ or ‘dismissed’.

[89]Both the grant of leave and the refusal of leave are usually interlocutory. See Lamac Developments Pty Ltd v Devaugh Pty Ltd (2002) 27 WAR 287 at 299, [32], 304–5, [56]–[57], 307, [70]–[72] and 317–18, [121]–[128].

[90]R v Edwards (No 2) [1931] SASR 376 at 380; R v Grierson (1937) 54 WN (NSW) 144; Grierson v R (1938) 60 CLR 431 at 434 and 437; R v Grantham [1969] 2 QB 574 at 580.

[91]At 435.

Before examining the decision in Lowe, it is convenient to turn to Parenzee,[92] a case in which a majority in the South Australian Court of Criminal Appeal applied GAM and distinguished Postiglione. We note that Parenzee and many of the other cases in which an issue similar to that which arises in this case were subjected to careful examination and analysis by Davies J in Lowe, so that it is unnecessary for us to repeat that exercise.
[92]R v Parenzee (2008) 101 SASR 469 (‘Parenzee’).
In Parenzee, the applicant was convicted by a jury of three counts of endangering life, in circumstances where he had unprotected sexual intercourse with three women: knowing that he had the HIV/AIDS virus; knowing that acts of unprotected sexual intercourse were likely to endanger the lives of the women in question; and being recklessly indifferent as to whether their lives were endangered. He sought leave to appeal against conviction before a single judge, which was refused;[93] and then made application to the Full Court, that application also being refused.[94] On each occasion, the applicant was refused an extension of time within which to seek leave to appeal. Significantly, one of the applicant’s grounds — ‘If HIV does exist, the risk of it being sexually transmitted is extremely low’ — was neither argued before the single judge, nor before the Full Court sitting as a Court of Criminal Appeal.
[93]R v Parenzee (2007) 248 LSJS 99 (Sulan J).
[94]R v Parenzee (2007) 101 SASR 456 (Doyle CJ, Anderson and Kelly JJ).
The applicant then made a subsequent application for an extension of time within which to appeal against his convictions, and for an extension of time within which to seek permission to appeal against those convictions. Bleby J, with whom Anderson J agreed, considered that the subsequent application was incompetent. He observed that the Full Court had earlier refused an extension of time within which to make an application for permission to appeal against conviction, indicating that, if an extension were granted, the appropriate order would be to refuse permission to appeal. In doing so, the Full Court considered and rejected the proposed ground of appeal, and considered that it was not a proper case for a grant of permission to appeal. It was on that ground alone that the extension of time was refused.[95] He said:[96]
In my opinion it does not matter, in those circumstances, that the formal order of the court was a refusal to extend time rather than a refusal to grant permission to appeal. The refusal of the extension of time was because there was not an arguable case for granting permission to appeal. There was no case for granting permission to appeal because there was no prospect of the intended appeal succeeding.
The grounds on which the appellant then relied were not the same as the grounds now relied on. However, in my opinion, that makes no difference.
[95]Parenzee, 490 [112].
[96]Ibid 490 [113]–[114].
Bleby J went on to say:[97]
There is no doubt that once this Court has determined an appeal against conviction under s 352(1) of the Criminal Law Consolidation Act 1935 (SA) and the order has been perfected, the court has no jurisdiction to hear a further appeal on the same or any other grounds against the same conviction, either by way of bringing a fresh application or by way of application to reopen the earlier appeal.[98]
In R v Edwards (No 2)[99] the applicant applied for an extension of time within which to file notice of an appeal against conviction and to apply for leave to appeal against his conviction on the ground that fresh evidence had come to light which, with reasonable diligence, could not have been known prior to his trial or prior to other applications which he had previously made. Those previous applications included an appeal against conviction on matters of law, an application for leave to appeal against his conviction on matters of fact and an application for leave to appeal against his sentence. The earlier appeal had been dismissed and the applications for leave had been refused. With the possible exception of a notice of abandonment of an appeal by the appellant, this Court held that it had no jurisdiction to entertain a subsequent application for leave to appeal. In their joint judgment[100] the court said:[101]
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 [of the Criminal Appeals Act 1924 (SA)]. 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.
(Emphasis added.)
On its face the decision of the court applied to both a second appeal and to a second application for leave to appeal.
[97]Ibid 490–1 [115]–[117].
[98]See Grierson v The King (1938) 60 CLR 431; Stone v The Queen (1989) 42 A Crim R 189 at 191; R v Keogh (2007) 175 A Crim R 153; [2007] SASC 226 at [45]-[81].
[99]R v Edwards (No 2) [1931] SASR 376.
[100]Angas Parsons, Napier and Piper JJ.
[101]R v Edwards (No 2) [1931] SASR 376 at 378.
Bleby J made the point that
the emphasis in both Edwards (No 2) and Grierson was on whether the earlier appeal or application had been dealt with on the merits. It should also be noted that the decision in Edwards (No 2) has been accepted, without qualification, not only by later decisions of this Court but by the High Court. It has also been followed by the Victorian Court of Appeal.[102]
[102]Parenzee, 492 [123] (emphasis added).
Bleby J referred to McNamara[103] and GAM[104] with approval, and, as we have mentioned, distinguished Postiglione.[105] Ultimately, after a review of further cases, he said:[106]
In a case where, as usually occurs in this jurisdiction,[107] an application to the Full Court for permission to appeal involves an assessment of the strength of the applicant’s grounds of appeal, it would be strange if the right to bring a further application for permission to appeal turned on the form of the order, namely, whether permission to appeal had been refused or whether permission had been granted and the appeal had been dismissed. In my view, that would be to allow form to triumph over substance. While it does require some analysis of the circumstances and reasons for dismissing an application for permission to appeal, or some inquiry to ensure that an opportunity to argue merit was given, that is not a particularly onerous inquiry. In this case it must result in dismissal of any further application for permission to appeal for Mr Parenzee, and hence the refusal of the two applications before us to extend the time within which to bring an application for permission to appeal or to commence an appeal as of right.
What I have said relates only to the situation where an application for permission to appeal has been heard and dismissed by the Full Court. It does not follow that the same position will apply where an application for permission has been heard and dismissed by a single judge and no further application has been made to the Full Court.
[103]Ibid 492– 4 [124]–[131].
[104]Ibid 496–7 [135]–[138].
[105]Ibid 494–6 [132]–[134].
[106]Ibid 501 [148]–[149].
[107]A similar practice prevails in Victoria: R v GAM (No 2) (2004) 9 VR 640 at 663; [2004] VSCA 117 at [46] Callaway JA.
Anderson J agreed with the conclusions reached by Bleby J. So far as relevant, his analysis included the following:[108]
It is my view that the decisions of the Court of Appeal in Victoria are persuasive. The question is whether those decisions should be followed, or whether the High Court decision of Postiglione v The Queen (1997) 189 CLR 295 is contrary to those authorities. Postiglione was decided shortly after McNamara was decided in Victoria.
The relevant comments in Postiglione come from Dawson and Gaudron JJ (at 305). These comments are set out in the reasons of Bleby J.
The decision in Postiglione was some years after the earlier decision of the High Court in Grierson v The King (1938) 60 CLR 431 which, in turn, had followed R v Edwards (No 2) [1931] SASR 376. ...
In Postiglione the decision in Grierson appears to have been endorsed. Prior to the passage referred to in the reasons of Dawson and Gaudron JJ, their Honours (at 300) affirmed that Grierson was correct. So also did McHugh J (at 315) and Gummow J (at 326).
Winneke P in R v GAM (No 2) (at [33]) says:
One thing appears to be clear from the various judgments given in the case of Postiglione; and that is that the authority of the decision in Grierson has not been disturbed.
I am persuaded by the draft reasons of Bleby J that the Victorian cases should be followed to the effect that there is no distinction between the refusal of an application for permission to appeal which has been heard on its merits or the dismissal of an appeal.
[108]Parenzee, 503 [159]–[164] (emphasis added).
Doyle CJ delivered a minority judgment. He considered there to be a significant difference between the hearing and disposition of an appeal against conviction, and the hearing and disposition of an application for permission to appeal, or for an order extending the time within which to appeal or to apply for permission to appeal:[109]
In the latter circumstances, the court does not entertain or exercise jurisdiction over an appeal until permission is given to appeal, or until an order has been made extending the time within which to appeal and, if permission to appeal is required as well, an order granting permission to appeal is made.

Lowe

[109]Ibid 478 [34].

As discussed, the correctness of GAM was questioned in Lowe. Both the applicant and the amici substantially rely upon the reasoning in Lowe.
In Lowe, the applicant had been sentenced in 2009 to 14 years’ imprisonment, with a non-parole period of 10 years, for drug and firearm offences, including supplying not less than a commercial quantity of a prohibited drug, methylamphetamine. The NSW Court of Criminal Appeal refused him leave to appeal against that sentence (and dismissed a concurrent Crown appeal).[110]
[110]Lowe v The Queen [2013] NSWCCA 141 (Price and Davies JJ and Barr AJ).
In refusing him leave to appeal, the Court found that Lowe had a justifiable sense of grievance, in that he had received sentence on a drug supply charge as a co-offender, Frank Sinkovich, notwithstanding that he had pleaded guilty and the co-offender had been found guilty after a trial. Sinkovich had sought leave to appeal against his sentence, claiming it was manifestly excessive and lacked parity with that imposed upon Lowe for the offence of supplying a commercial quantity of drugs. Leave was granted but the appeal was dismissed on 15 April 2011.[111] In light of the High Court’s decision in Muldrock,[112] however, Sinkovich was subsequently successful in having his sentence reviewed on an appeal under the Crimes (Appeal and Review Act) 2001 (NSW), and it was reduced.[113] As a result of the new sentence imposed upon Sinkovich, Lowe again applied for leave to appeal on the basis of disparity with the sentence finally imposed upon the co-offender.
[111]Sinkovich v The Queen [2011] NSWCCA 90 (Macfarlan JA, Hoeben and Garling JJ).
[112]Muldrock v The Queen (2011) 244 CLR 120.
[113]Sinkovich v The Queen [2014] NSWCCA 97 (Basten JA, Fullerton and R A Hulme JJ).
Given the circumstances whereby Lowe had already unsuccessfully applied for leave to appeal, a preliminary issue arose as to whether the Court of Criminal Appeal had jurisdiction to entertain a second application. Lowe accepted that if the Court had earlier made an order dismissing the appeal, there would be no jurisdiction to hear a subsequent appeal. The Court had, however, made an order that leave to appeal was refused. Lowe submitted that in those circumstances the Court had jurisdiction to entertain the appeal, relying on what Dawson and Gaudron JJ said in Postiglone.[114] The respondent submitted, however, that Lowe’s argument in that regard had been considered and rejected in GAM.
[114]Postiglione, 305.

Davies J (with whom Ward JA and Simpson J agreed) gave the lead judgment. Among other things, he observed that there appeared to be no doubt that Grierson is authority for the proposition that the Court has no jurisdiction to entertain a second appeal where there has been a dismissal of the appeal on the merits. The issue was whether there is an exception to the principle ‘and whether the principle extends, without exceptions, to the situation where leave to appeal is refused’.[115] After an extensive review of authority — including an examination of (among other cases) Postiglione, GAM, Edwards (No 2), R v Grierson,[116] Grierson, Eastman v The Queen,[117] R v Saxon,[118] Matta v The Queen,[119] R v Stead,[120] R v Spiero,[121] R v AP,[122] R v Alameddine,[123] Parenzee, Clay v The Queen[124] and R v Upson (No 2)[125] — he observed:[126]
The position appears to be, therefore, that despite support from some individual judges in South Australia, Queensland and the Federal Court, jurisdictions other than New South Wales do not allow a second application for leave to appeal even where the order made was that leave was refused, except in circumstances where there has been a dismissal of the leave application through abandonment or some similar basis. … The failure, however, of some of the judgments in those jurisdictions to refer to Postiglione and examine how it can stand with Grierson diminishes the authority of those decisions.
Although Winneke P in GAM was not prepared to accept a distinction between an appeal and an application for leave to appeal where the merits had been determined, that view does not find support from Grierson other than what is contained in the judgment of Dixon J. Nor, with the greatest respect to the Court of Appeal in Victoria, does it have sufficient regard to what Dawson and Gaudron JJ said:
That, if an application for leave against sentence is to be heard and determined against an applicant before a co-accused is brought to trial, leave be refused, rather than that the appeal be dismissed.
Such a distinction could not have been made if Grierson (to which they had referred and accepted its correctness …) stood for the proposition that the dismissal of an application for leave to appeal would preclude a further application. It seems likely, therefore, that they accepted that the judges, apart from Dixon J, were speaking only of the dismissal of an appeal and not the refusal of leave to appeal. That is not entirely surprising given that in Grierson all that was being determined was the right of an applicant to appeal a second time, or to seek leave to do so, where the first appeal had been dismissed.
[115]Lowe, 379 [91].
[116](1937) 54 WN (NSW) 144.
[117](2008) 166 FCR 579.
[118](1998) 101 A Crim R 71.
[119](1995) 126 FLR 127.
[120][1999] NSWCCA 41.
[121](2001) 78 SASR 531.
[122][2003] QCA 445.
[123][2004] NSWCCA 286.
[124][2007] NSWCCA 106.
[125](2013) 229 A Crim R 275.
[126]Lowe, 385 [117]–[119].
Ultimately, Davies J said:[127]
Postiglione is a later decision of the High Court. It was a judgment on a final hearing. Three of the five judges endorsed the principle identified. Although the remarks were obiter, they must be regarded as ‘seriously considered’ dicta of a majority of the Court with the result that they are binding: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [134] and [158].
Bearing in mind that Grierson involved a second application where an appeal had previously been dismissed, it can be seen from the above survey that decisions in New South Wales have consistently made a distinction between an order dismissing an appeal and an order refusing leave to appeal, as Alameddine, Stead and Clay demonstrate. No reason has been shown for departing from that line of authority which has the imprimatur of three of the judges in the High Court in Postiglione. Further, and with due respect to the High Court, no better reason could be given for the view they reached than the injustice which might otherwise result from a disparity of sentencing of co-offenders at different times.
[127]Ibid 385–6 [122]–[123].
In a short concurrence, Ward JA agreed with Davies J and with additional observations made by Simpson J, who said:[128]
‘Appeal’ is not defined in the Criminal Appeal Act.
Nothing in s 6 (or elsewhere in the Criminal Appeal Act) indicates that refusal of an application for leave to appeal is equivalent to dismissal of an appeal. It is not.
The grant (or refusal) of leave to appeal is a discretionary decision. Refusal of leave to appeal does not create a jurisdictional bar to any further proceedings. If it be the case that a second (or subsequent) application for leave to appeal raises issues that have been determined on the merits in a previous application, that provides a powerful basis for the exercise of the discretion against a grant of leave. …
[128]Ibid 365 [5]–[8].
Simpson J went on to say:[129]
The observation of Dixon J, in my opinion (and with respect to Callaway JA, who in R v GAM (No 2) (2004) 9 VR 640; 146 A Crim R 57 declined so to declare), is obiter.
The remark of Dixon J has been superseded by the more recent and pertinent decision of the High Court in Postiglione v The Queen (1997) 189 CLR 295; 94 A Crim R 397 (see the judgment of Davies J at [77]) in dicta to which three judges (Dawson, Gaudron and Kirby JJ) subscribed. Their Honours anticipated precisely the situation that has here arisen, as did this Court in R v Stead [1999] NSWCCA 41.
In my opinion, refusal of an application for leave to appeal is not a jurisdictional bar to a subsequent application, although, depending on the circumstances, the disposition of the first application might constitute a discretionary bar.
[129]Ibid 366 [12]–[14].

Discussion

The key question that arises on this application is whether the statutory entitlement to ‘appeal’ a sentence under s 278 may be exercised multiple times where leave has been refused, notwithstanding that there has already been a determination on the merits of the proposed appeal.[130]
[130]It is unnecessary to decide whether a further application for leave to appeal could be made in a case where the application was refused without deciding the merits of the proposed appeal. It is also unnecessary to decide whether a further application for extension of time could be made, including in circumstances where an earlier such application was refused without addressing the merits.
For the reasons which follow, the answer to the key question is ‘no’. We consider that GAM was correctly decided and that it is of no consequence whether the previous determination takes the form of an order dismissing the appeal, or an order refusing leave to appeal.
Unlike other Australian jurisdictions, in this State there is no longer any appeal as of right in criminal matters dealt with on indictment.[131] There is a requirement to obtain leave to appeal and there are specific provisions governing the grant of leave to appeal on the grounds that are proposed. As we have set out in detail above, since the commencement of pt 6.3 of the CPA (ss 274 to 326),[132] a person convicted of an offence by an originating court may, pursuant to s 274, ‘appeal to the Court of Appeal against the conviction on any ground of appeal if the Court of Appeal gives the person leave to appeal’; and a person sentenced by an originating court may, pursuant to s 278, ‘appeal to the Court of Appeal against the sentence imposed if the Court of Appeal gives the person leave to appeal’. Under s 281(1) of the CPA, the Court must allow an appeal against sentence if satisfied by the appellant that there is an error in the sentence first imposed, and that a different sentence should be imposed. Section 282(1) provides that if the Court allows an appeal against sentence, it must set aside the sentence imposed by the originating court and either impose the sentence (whether more or less severe) that it considers appropriate, or remit the matter to the originating court.[133]
[131]With respect to cl 275 of the Criminal Procedure Bill 2008, the Explanatory Memorandum stated (at 99–100):
[132]Sections 2(1), 5 to 436, 438 and 439, came into operation on 1 January 2010.
[133]Previously, s 568(4) of the Crimes Act 1958 provided:
(4) On an appeal against sentence the Court of Appeal shall, if it thinks that a different sentence should have been passed or a different order made, quash the sentence passed at the trial and pass such other sentence or make such other order warranted in law (whether more or less severe) in substitution therefor as it thinks ought to have been passed or made, and in any other case shall dismiss the appeal.
The statute in this case is important, given that the Victorian provisions of the CPA depart from the common form criminal statutes operating in all other Australian jurisdictions. The provisions of the CPA must be construed according to the usual principles, by reference to the ordinary meaning of the words used, taking into account both context and legislative purpose.[134] In the present case, the words themselves — ‘An application for leave to appeal under s 278 is commenced by filing’, in s 279 — are equivocal and we must therefore turn directly to their context and the legislative purpose.
[134]R v A2 (2019) 269 CLR 507, 520–22 [32]–[37] (Kiefel CJ and Keane J), 545 [124] (Bell and Gageler JJ).
In sentencing cases, the CPA gives the Court specific powers which are not found in the common form criminal appeal statutes. In particular, by virtue of s 280(1) the Court — whether constituted by a single judge under s 315(1)(a), or by two or more judges — may refuse an application for leave to appeal under s 278 in relation to any ground of appeal if there is no reasonable prospect either that the Court would impose a less severe sentence than the sentence first imposed, or that it would reduce the total effective sentence despite there being an error in the sentence first imposed. By reason of s 280(2), an application for leave to appeal may be refused under subsection (1) even if the Court considers that there may be a reasonably arguable ground of appeal.[135]
[135]As to cl 281 of the Criminal Procedure Bill 2008, the Explanatory Memorandum stated (at 104):
Section 280 therefore expressly invites consideration of the merits of the grounds of appeal against sentence and the overall prospect of imposing a different sentence as part of the process of considering whether leave should be given. Furthermore, s 280 effectively permits leave to appeal to be refused where there is no prospect of a reduction in sentence and an appeal is futile. This provision is directed at effectively achieving finality of the sentence, including where it has been decided that a proposed appeal is reasonably arguable — that is, after an assessment of the merits. It would not be coherent for an applicant in this circumstance to retain the right to make further applications, while an applicant with stronger prospects of success who was given leave to appeal but was ultimately unsuccessful on appeal would be precluded from making further applications.
There are, in addition, other ‘signposts’ of legislative intention in pt 6.3, including the time limits imposed by s 279, which are evidently directed to the prompt achievement of finality, and would inevitably already have been exceeded if it were open to a person to make multiple applications for leave to appeal despite the first or previous leave application having been refused on the merits. Likewise, the provision in s 315(2) for the re-consideration by two judges of a leave application previously refused by a single judge would be superfluous if a further application could be made in any event. Instead, the legislature clearly intended that election under s 315(2) was the only way in which the challenge to a refusal of leave by a single judge should occur.
The proposition that a person who has had an application for leave to appeal refused after a determination of the proposed grounds of appeal on the merits is entitled to make further applications for leave to appeal therefore does not sit comfortably with the scheme in pt 6.3.
Moreover, the Victorian scheme provides no justification for construing div 2 of pt 6.3 so as to make jurisdiction to entertain a second or subsequent sentence appeal dependent on the form of the order previously made, as opposed to the substance of the relevant decision. This is underscored by the fact that under s 3(1), an appeal is defined to include an application for leave to appeal, which recognises not only that an application for leave to appeal may be treated in the same way as an appeal, but that, as a matter of practice, there is no difference between the ventilation and consideration of the grounds of appeal on the hearing of an application for leave to appeal and on the hearing of an appeal.
The insertion of pt 6.4 warrants mention, although the fact that it was enacted after the applicant’s application for leave to appeal against sentence was refused might have the result that it should not bear on the status of that refusal.
In our view, the existence of pt 6.4 is consistent with the position that there is otherwise no entitlement to make multiple applications for leave to appeal, whether it be an application for leave to appeal against conviction or sentence. We accept that, even if there were a right to make repeated applications for leave to appeal where leave had previously been refused, pt 6.4 would still have work to do (in circumstances where leave to appeal was granted but the appeal was dismissed). Part 6.4 could, however, simply have made provision for the right to a second or subsequent appeal on the previous dismissal of an appeal. The entitlement that arises under pt 6.4 where a person has ‘exhausted’ the right to appeal is couched in broad language that readily includes the exhaustion of the statutory jurisdiction by a refusal of leave to appeal after a hearing on the merits. As we have said, and consistently with the law as explained in GAM, a person has ‘exhausted the … right to appeal against conviction’ upon the Court refusing leave to appeal having considered the merits. If there were a right to make multiple applications for leave to appeal, the right to appeal would not be ‘exhausted’ until leave had been granted and the appeal dismissed. It would be anomalous if the stringent requirements of pt 6.4 had to be met in a case where the appeal was dismissed but had no application at all if leave had simply been refused.
Although pt 6.4 applies to appeals against conviction and not sentence, the right to appeal a sentence conferred by s 278 is expressed in the same language as the right to appeal a conviction conferred by s 274. Provisions which use the same language should be interpreted consistently, unless there is a clear statutory command to the contrary. [136] If s 274 does not give rise to an entitlement to make repeated applications for leave to appeal where leave has been refused after consideration of the merits of the appeal, it would be anomalous to construe s 278 as giving rise to such an entitlement.
[136]Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 381–2 [69]–[70] (McHugh, Gummow, Kirby and Hayne JJ).
In our view, the language and structure of pt 6.3 of the CPA makes it plain that jurisdiction to entertain a further appeal against sentence does not turn on whether there has been a refusal of leave, as opposed to the dismissal of an appeal. That conclusion is confirmed by pt 6.4. Unless the authorities demand a different answer, that would be sufficient to distinguish the decision in Lowe and to resolve the present application. We now return to those authorities. As explained below, the unique character of the statute also affects the extent to which Postiglione and Lowe might be said to undermine the decision of this Court in GAM.
It is true that the enactment of the CPA has changed the landscape since GAM. For the reasons we have given and the reasons that follow, however, the law as explained in GAM is consistent with the CPA. (Indeed, it might be presumed that, when enacting the CPA, the legislature knew that the law in this State was as laid down in McNamara and GAM.) The CPA permits, or contemplates, the practice described by Winneke P in GAM of refusing leave after a full consideration of the merits of the appeal, including by defining ‘appeal’ in s 3 to include ‘application for leave to appeal’ — a similar definition previously being found only in the rules — and removing any capacity for a convicted person to bring an appeal as of right.
In Victoria, where an application for leave to appeal is dealt with other than by a single judge, while there is no longer an ‘inveterate practice’ of dealing with the application as if it were the appeal, it is common to do so. Thus, if one or more grounds have such merit that the relevant appeal must be allowed, the usual order continues to be that the application for leave to appeal is granted. If the appeal is to be allowed, it is treated as instituted instanter and is allowed; and consequential orders are made.[137] Conversely, where the grounds have no or little merit, the usual order is that leave to appeal is refused. Consistently with this practice, the decisions of the Court comprising more than one judge refusing leave to appeal after assessing the merits of the proposed appeal have the same precedential value as decisions in which, leave having been granted, the appeal is dismissed.
[137]See [36] and [80] above.
In the end, the applicant and the amici have failed to persuade us that GAM is plainly wrong. Indeed, we consider that GAM was correctly decided and should continue to be followed.
The case law more generally supports the conclusion we have reached on the proper construction of the CPA, that the refusal of a leave application involving a determination of the merits of the proposed appeal precludes a second or further application. Properly understood, by its judgment in Edwards (No 2) the South Australian Court of Criminal Appeal made it clear that a second application for leave could not be entertained where the court had ‘heard the merits’ of a previous application.[138] Hence, the observation by Dixon J in Grierson 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’,[139] is, as we have said, entirely consistent with what was held in Edwards(No 2). As to that, we note that McTiernan J agreed with Dixon J[140] — including, presumably, with the view that a second application for leave to appeal could not be entertained after an earlier dismissal on the merits. We also note that when Jordan CJ expressed the opinion that the decision in Edwards (No 2) should be followed[141] — an opinion with which Starke J ‘agreed entirely’[142] — he presumably did so cognisant of the fact that the South Australian Court of Criminal Appeal had fettered the ability to bring a second application for leave to appeal when an earlier application had been heard on the merits.
[138]See [50] and [52] above.
[139]Emphasis added; see [57] above.
[140]See [56] above.
[141]See [54] above.
[142]See [56] above.
In Lowe, Simpson J described the observations of Dixon J in Grierson as obiter;[143] and Davies J appeared to attach some significance to the fact that the admittedly obiter comments of Dawson and Gaudron JJ in Postiglione were contained in a later decision of the High Court (and must be considered to be ‘seriously considered’ dicta of a majority of the Court, with the result that they are binding).[144] Insofar as all judges in Grierson, however, appeared to follow Edwards (No 2) — including the opinion that a court of criminal appeal could not entertain a subsequent application for leave to appeal earlier heard on the merits — it might be said that a majority of the Court on that occasion endorsed the principle for which GAM stands.
[143]See [96] above.
[144]See [94] above.

Postiglione does not diminish the authority of GAM. Postiglione was decided in a different statutory context. But in any event, the gravamen of the relevant part of the reasons of Dawson and Gaudron JJ consisted of prudential advice as to the desirability of avoiding disparity in sentencing ‘in the interests of justice’ by means of the court preserving its ability to revisit the case should it become necessary for that purpose. The particular ‘expedient’ identified was not necessarily the only way in which that could be done. Moreover, neither McHugh nor Gummow JJ expressed any support for a distinction to be drawn between a refusal of leave and a dismissal of the appeal. Kirby J expressed no concluded view, save that he considered it might be sensible to adopt the ‘expedient’ proposed by Dawson and Gaudron JJ.
It is significant, in our view, that Dawson and Gaudron JJ specifically endorsed the continuing authority of Grierson, when observing that the Court ‘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’.[145] Given that both justices had earlier endorsed the Grierson decision,[146] there appears to be no intention to override the key principle that a statutory jurisdiction may be exercised and exhausted by a hearing on the merits. Rather, as Winneke P observed in GAM, it is possible to construe their Honours’ remarks as suggesting that the desired goal (of preserving jurisdiction) could be achieved by the different mechanism of not perfecting orders until the co-offender’s fate was known.[147] Whatever the precise ambit of the suggestion, however, we do not consider that the proffering of an expedient was intended to undermine the key principle, endorsed in Grierson and reflected in the Victorian CPA, that a statutory jurisdiction may be exercised and exhausted if there has already been a full hearing on the merits.
[145]See [68] above.
[146]Postiglione, 300 (Dawson and Gaudron JJ).
[147]GAM, 656 [31].
Furthermore, the decision in Postiglione must be understood according to the peculiar facts of that case. In particular, there was doubt as to whether the Court of Criminal Appeal’s order dismissing the appeal against sentence had ever been perfected (the Notification of Court’s Determination, which operated as the final order of the Court, indicating that Postiglione was granted leave to appeal and that the unsuccessful appeal was against conviction rather than against sentence). Moreover, it appears to us that Dawson and Gaudron JJ were confining their remarks to the situation where a parity issue arises when a co-offender has been sentenced after an earlier dismissal of an application for leave to appeal against sentence.
Finally, nothing in Postiglione suggests that any members of the Court had adverted to the practice in this State, or had considered the views expressed in McNamara. For these reasons, we consider that Postiglione engages neither directly nor distinctly with the principal issue arising in this case, and cannot therefore dictate its outcome.
The applicant’s reliance on the decision of Lowe does not assist him. For reasons we have given, we would not give Postiglione the weight that Davies J accorded it in that case. Moreover, Lowe was decided by reference to a different statutory scheme, in which (among other differences) the concept of an ‘appeal’ was not defined.[148]
[148]Lowe, 365 [5].
In that regard, we also consider that, contrary to a submission made by the amici, the provisions of pt 6.3 serve to distinguish an application for leave to appeal against sentence from an application for special leave to appeal to the High Court.[149] A special leave application stands in a special category by virtue of its constitutional status as a ‘regulation’ of the constitutional right of appeal to the High Court under s 73 of the Constitution.[150] An application for special leave is thus merely an application to commence appellate proceedings in the Court.[151]
[149]Coulter v The Queen (1988) 164 CLR 120, 122 (Mason CJ, Wilson and Brennan JJ).
[150]Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth (1991) 173 CLR 194, 217, 218.
[151]Collins v The Queen (1975) 133 CLR 120; North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 585, 643 (McHugh J).
We consider that our approach is consistent with the overall goal of clarifying and simplifying the laws related to criminal procedure.[152] We agree with the observations of Callaway JA that the result in GAM is conducive to the practical administration of justice.[153] We would respectfully disagree with any suggestion that there may be difficulties in identifying whether an application has been determined on the merits.[154] Our experience is that this will be readily apparent, and the task not particularly onerous.[155] Indeed, it was readily apparent in the present case from a brief examination of the Court’s reasons.
[152]CPA, sub-ss 1(a) and (h).
[153]GAM, 664 [47].
[154]See, eg, Parenzee, 479–80 [38] (Doyle CJ).
[155]And see Paranzee, 501 [148] (Bleby J).
As discussed, capricious results would flow from the applicant’s submission: a person who had an earlier application for leave to appeal refused after a full hearing on the merits would be in a superior position to a person who had an earlier appeal dismissed after a full hearing on the merits. That would be an absurd result, dependent upon how the Court framed its orders to give effect to its intention. It would be a strange state of affairs if the right to bring a further application for leave to appeal turned on the form of the order. So much ‘would be to allow form to triumph over substance’.[156]
[156]See ibid.

Conclusion

For the foregoing reasons, we consider that the applicant’s rights of appeal against sentence were exhausted once the Court refused his application for leave to appeal against sentence on the merits in June 2015, the order of the Court being perfected by the Notification of Result dated 29 June 2015.[157] The putative application for leave to appeal against sentence is thus incompetent. It would therefore be futile to grant an extension of time.
[157]See [38].
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The current distinction in section 567 of the Crimes Act 1958 between questions of fact, questions of law and mixed questions of fact and law is not used to delineate different types of appeal. ...
In addition, the distinction between: (a) appeals as of right (i.e. without leave) on questions of law; (b) appeals as of right on questions of fact or mixed questions of fact or law (if the trial judge certifies the case as appropriate); and (c) appeals with the leave of the Court of Appeal on any other ground of appeal has been removed because the processes in (a) and (b) had fallen into disuse. Instead, this clause allows a person to appeal against conviction on any ground of appeal with the leave of the Court of Appeal.

Currently, section 568(4) of the Crimes Act 1958 requires the Court of Appeal to quash the sentence and substitute a different sentence if it thinks that “a different sentence should have been passed.” On the face of it, this discretion is unfettered. In practice, however, it is firmly settled that a two-stage test applies: first, to assess whether the sentence imposed was attended by error and, only if such error was established, to re sentence the appellant (see, for example, House v The Queen (1936) 55 CLR 499 at 505).
The Court of Appeal’s discretion has also been held to be subject to three qualifiers. First, there is a strong presumption in favour of correctness, affirming the broad nature of the discretion vested in a sentencing judge. Secondly, even if there is no apparent error on the record, manifest excess itself may allow the Court of Appeal to presume error. Thirdly, an error as to the facts can be found on the basis of material not available to the sentencing judge if the interests of justice require such material to be considered.
The restrictions are not apparent from the words of the current section. To rectify this, subclause (1) specifically requires the Court of Appeal to satisfy itself that there was an error in the original sentence and that a different sentence should be imposed. This is intended to embed the principles noted above into the statutory scheme. The issue of when the Court of Appeal will receive and consider additional evidence will continue to be governed by the principles and practices developed by the court.

[2023] VSCA 10

9 February 2023