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2
Court of Criminal Appeal 25 June 2001

R v Giri (No 2)

[2001] NSWCCA 234

Public order & justice offences
CRIMINAL PRACTICE AND PROCEDURE NATURAL JUSTICE AND PROCEDURAL FAIRNESS WHETHER NATURAL JUSTICE DENIED

Citation: R v Giri (No 2) [2001] NSWCCA 234
Court: NSW Court of Criminal Appeal
Date: 25 June 2001
Judge(s): Heydon JA, Barr J, Smart AJ

Background

The Court of Criminal Appeal had delivered its principal judgment on 12 June 2001, dismissing the appellant's criminal appeal by applying the proviso under s 6 of the Criminal Appeal Act 1912 (NSW). The proviso allows a court to dismiss an appeal even where an error is found, if no substantial miscarriage of justice has actually occurred.

Three days after the judgment was delivered, the appellant's counsel filed a document complaining that neither they nor their client had received advance notice that judgment was being delivered that day. Counsel also raised a more substantial complaint: that the appellant had not been specifically told the court would consider applying the proviso, and had therefore been denied an opportunity to be heard on that issue.

The Court received further written submissions from the appellant and considered whether the original order should be disturbed on either ground.

  • Whether the appellant was denied natural justice by the absence of advance notice to counsel of the time of judgment delivery
  • Whether the failure to specifically inform the appellant that the proviso under s 6 of the Criminal Appeal Act 1912 would be considered constituted a denial of natural justice
  • Whether the case should be reopened to allow further submissions on the proviso question
  • Whether, even if reopened, the further submissions advanced by the appellant would have affected the outcome

Decision

On the notice question, the Court found that the Registry had properly notified the appellant's solicitors of the delivery date, and that the solicitor was present when judgment was given. It is not a requirement that counsel (as opposed to solicitors) receive personal notice of the time of judgment delivery.

On the forestalling of reply submissions, the Court rejected the argument that delivery of judgment had deprived the appellant of a fair opportunity to respond to the Crown's supplementary submissions. Neither party had sought leave to file supplementary submissions following the High Court's decision in Azzopardi v R. Once those submissions were filed without leave, the appellant had more than four weeks before judgment was delivered to file any reply, and gave the court no notice of any intention to do so.

The natural justice complaint received the most detailed analysis. The Court found it was not logically possible to consider an appeal brought under s 6 without considering the proviso, since all four grounds of appeal engaged that section. Critically, the Crown had raised the proviso argument in its original written submissions, amplified it in oral argument, and the appellant's own counsel had directly contested it at the hearing and in supplementary submissions. The appellant had already been heard on the point.

The Court then considered the substance of the further submissions filed by the appellant, giving them full weight as though they had been advanced at the proper time. It found that none of the additional authorities or arguments raised undermined the majority reasoning in the original judgment. The application to reopen therefore failed on both procedural and substantive grounds, and the Court confirmed that the 12 June 2001 order was not to be changed.

Orders Made

  • The Court noted that the order made on 12 June 2001 was not to be changed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that advance notice of the time of judgment delivery need only be given to a party's solicitors, not to counsel personally.
  • Where a party has been fully heard on an argument at the original hearing, including in written and oral submissions, no separate specific warning is required that the court intends to decide the case on that argument.
  • Under s 6 of the Criminal Appeal Act 1912, consideration of the proviso is inseparable from consideration of any appeal brought under that section, making specific advance notice of proviso consideration unnecessary as a matter of natural justice where the point was already contested.
  • In determining whether to reopen proceedings, a court may assess the substance of the further material proposed to be advanced and decline to reopen if that material would not affect the outcome.
  • No miscarriage of justice arises from delivery of judgment where a party had adequate time to file reply submissions before judgment and gave no notice to the court of its intention to do so.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6 (including the proviso)

Cases:
- Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
- Azzopardi v R [2001] HCA 25
- R v Bozzola [2001] NSWCCA 8
- R v Frawley (1993) 69 A Crim R 208
- Glennon v R (1994) 119 ALR 706
- Quartermaine v R (1980) 143 CLR 595
- State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29
- Wentworth v Woollahra Municipal Council (1982) 149 CLR 672
- R v Whittaker (1993) 68 A Crim R 476
- Wilde v R (1988) 164 CLR 365