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Court of Criminal Appeal 4 August 2000

R v Gust

[2000] NSWCCA 287

Sexual offences
CRIMINAL LAW APPEAL APPLICATION TO RE OPEN APPEAL DENIAL OF PROCEDURAL FAIRNESS.

Citation: Gust v R [2000] NSWCCA 287
Court: Court of Criminal Appeal, New South Wales
Date: 4 August 2000
Judge(s): Dunford J, Hidden J, Smart AJ

Background

The applicant had been convicted in the District Court at East Maitland of sexual intercourse without consent following a trial before Acting Judge Nader QC and a jury. He appealed to the Court of Criminal Appeal on multiple grounds and also sought leave to appeal against his sentence.

The Court of Criminal Appeal heard the appeal on 29 July 1999 and delivered judgment on 22 October 1999. By majority, the Court dismissed the conviction appeal and, while granting leave to appeal against sentence, dismissed that appeal as well. The judgment was perfected on 3 November 1999.

The applicant then sought to re-open the appeal, arguing he had been denied procedural fairness at the original hearing. Specifically, he contended the Court had not alerted his appeal counsel to the potential relevance of the transcript of counsel's final addresses from the trial, which counsel had obtained but overlooked when the appeal was eventually heard.

  • Whether the Court of Criminal Appeal has power to re-open an appeal that has already been heard on its merits and perfected.
  • Whether there is an exception to the general rule against re-opening where a party alleges a denial of procedural fairness.
  • Whether the circumstances of the original appeal hearing constituted a denial of procedural fairness or natural justice sufficient to justify re-opening.

Decision

Dunford J (with Hidden J and Smart AJ agreeing) confirmed the well-established principle, originating in Grierson v The King (1938) and reaffirmed by the High Court in Postiglione v The Queen (1997), that once the Court of Criminal Appeal has heard and determined an appeal on its merits, the appeal cannot ordinarily be re-opened. However, the Court accepted that an exception exists where a party can demonstrate a genuine denial of procedural fairness, and that this exception may apply even after an order has been perfected, as recognised in Pantorno v The Queen (1989).

The Court therefore accepted it had the power to re-open the matter, but found the applicant had not established any actual denial of procedural fairness. The relevant ground of appeal concerned a jury direction on recklessness as to consent. Appeal counsel had obtained the transcript of the Crown's final address at trial, which contained no reference to recklessness, and this material could have been placed before the Court. Counsel had the material available but overlooked it when the appeal was called on for hearing.

Dunford J held that the Court could not be criticised for failing to draw counsel's attention to material that counsel already knew of but had overlooked. The Court's obligation is to give a party a reasonable opportunity to present their case, not to advise counsel on how to present it. Importantly, Dunford J noted that even if the transcript had been before the Court, it would have made no difference to his own reasoning, which did not ultimately turn on that point.

Orders Made

  • Application to re-open the appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the general rule against re-opening an appeal after it has been heard on its merits and perfected remains firmly established, tracing back to Grierson v The King (1938) 60 CLR 431.
  • An exception to that rule exists where a party can demonstrate a genuine denial of procedural fairness, and that exception may apply whether or not the order has been perfected, consistent with Pantorno v The Queen (1989) 166 CLR 466.
  • A court's duty is to afford a party a reasonable opportunity to present their case, not to advise counsel on every subsidiary point or piece of material that might support a submission being made.
  • Where counsel was aware of relevant material, had obtained it, but overlooked it before the hearing, the court's failure to draw specific attention to its absence does not constitute a denial of procedural fairness.
  • No error was established on the facts: the applicant's appeal counsel had independently obtained the trial address transcript and could have relied on it, meaning responsibility for its non-use lay with the conduct of the appeal rather than any procedural failing by the Court.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I; s 61R(1)
- Criminal Appeal Rules, rr 4 and 6

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