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22
Court of Criminal Appeal 22 September 2006

REGINA v Matthew James ELLIOTT and Bronson Matthew BLESSINGTON

[2006] NSWCCA 305

Also reported as (2006) 68 NSWLR 1 (2006) 164 A Crim R 208
Homicide
CRIMINAL LAW APPEAL JURISDICTION TO REOPEN APPEAL CRIMINAL LAW APPEAL JURISDICTION

Citation: REGINA v Matthew James ELLIOTT and Bronson Matthew BLESSINGTON [2006] NSWCCA 305
Court: New South Wales Court of Criminal Appeal
Date: 22 September 2006
Judge(s): Spigelman CJ; Kirby J; Howie J

Background

Two applicants were convicted of murder in 1990 and each sentenced to life imprisonment. At sentencing, the trial judge (Newman J) made a recommendation that neither applicant should ever be released. At the time, that recommendation carried no legal force.

In 1992, the Court of Criminal Appeal dismissed appeals by each applicant against the severity of their life sentences (the "First Appeal"). The applicants had attempted to challenge the recommendation during that appeal, but because the recommendation had no legal effect, it fell outside the Court's appellate jurisdiction.

A series of legislative amendments enacted in 1997, 2001, and 2005 progressively gave legal effect to the recommendation. The result was that, whereas some prospect of release on licence had existed at the time of sentencing, the applicants now faced an almost certain permanent bar on release. Each applicant then sought to challenge the recommendation in the Court of Criminal Appeal, relying on the legislative changes as the basis for doing so.

  • Whether the Court of Criminal Appeal had jurisdiction to reopen the First Appeal, given that the orders from that appeal had never been formally perfected
  • Whether denial of procedural fairness at the First Appeal (by not being permitted to challenge the recommendation) independently justified reopening
  • Whether the recommendation, having been given legislative effect, had become a "sentence" or an "order of the court of trial" within the meaning of the Criminal Appeal Act 1912, so as to bring it within the Court's appellate jurisdiction
  • How the discretion to grant leave (whether to appeal out of time or to reopen) should be exercised
  • Whether provisions of Schedule 1 to the Crimes (Sentencing Procedure) Act 1999, which gave effect to the recommendation, were constitutionally valid under Chapter III of the Commonwealth Constitution

Decision

Jurisdiction to reopen: The Court held unanimously that, because the orders dismissing the First Appeal had never been perfected, it retained jurisdiction to grant leave to reopen. However, jurisdiction to reopen is distinct from the exercise of discretion to actually do so. The Court found it unnecessary to resolve whether procedural fairness grounds independently justified reopening.

Whether the recommendation was a "sentence": The Court rejected the argument that the recommendation had become a "sentence" or "order of the court of trial" under the Criminal Appeal Act 1912. At the time it was made, the recommendation had no legal effect and therefore could not be characterised as an order of the sentencing court. The fact that Parliament later chose to attach legal consequences to it did not alter that characterisation.

Discretion to grant leave: Both Spigelman CJ (with Howie J agreeing) and Kirby J held that the dominant consideration in exercising the discretion is the avoidance of a miscarriage of justice. Each applicant's subjective circumstances, as advanced at the First Appeal, were identified as a relevant factor. The Court nonetheless declined to grant leave on either basis. Granting leave would have had the practical effect of removing the recommendation as the legislative criterion upon which Parliament had validly enacted the statutory scheme restricting release. The Court held it would be an inappropriate exercise of judicial power to act in that way, given that Parliament had enacted constitutionally valid legislation using the recommendation as its operative foundation.

Constitutional validity: The Court found the relevant provisions of Schedule 1 to the Crimes (Sentencing Procedure) Act 1999 to represent a constitutionally valid exercise of legislative power. The Court declined to exercise its discretion in a manner that would obstruct Parliament's valid exercise of power with respect to convicted persons.

Orders Made

  • Leave to appeal out of time refused.
  • Leave to reopen the original appeal refused.

Key Takeaways

  • A judicial recommendation made at sentencing that carries no legal effect at the time it is made does not constitute an "order of the court of trial" or a "sentence" for the purposes of the Criminal Appeal Act 1912, even where subsequent legislation attaches consequences to it.
  • Where orders from a prior appeal have never been perfected, the Court of Criminal Appeal retains jurisdiction to consider granting leave to reopen, but that jurisdictional threshold is separate from, and does not determine, the exercise of discretion.
  • The dominant consideration in any application for leave to reopen, or to appeal out of time, is the avoidance of a miscarriage of justice, to be assessed by reference to all the circumstances including the subjective position advanced in the earlier proceedings.
  • It would constitute an inappropriate exercise of judicial power for the Court to remove the very criterion upon which Parliament has enacted constitutionally valid legislation, even where the consequences of that legislation appear severe or inconsistent with general sentencing principles.
  • In dismissing both applications, the Court of Criminal Appeal reinforced that where relief may exist for persons in such circumstances, it must be sought through means other than the Court's appellate jurisdiction under the Criminal Appeal Act 1912.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 2, 5, 6, 10
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(5), 61; Sch 1 cll 2, 4, 7
- Crimes (Sentencing Procedure) Amendment (Existing Life Sentences) Act 2005 (NSW)
- Crimes Legislation Amendment (Existing Life Sentences) Act 2001 (NSW)
- Crimes Amendment (Mandatory Life Sentences) Act 1996 (NSW)
- Crimes (Life Sentences) Amendment Act 1989 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 154A(3)
- Sentencing Act 1989 (NSW), s 13A
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Crimes Act 1900 (NSW)

Cases:
- R v Jamieson, Elliott and Blessington (1992) 60 A Crim R 68
- R v Blessington (2005) 153 A Crim R 205
- R v Stephens (1990) 48 A Crim R 323
- R v Lapa (No 2) (1995) 80 A Crim R 398
- R v Postiglione (1997) 98 A Crim R 134
- Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
- Re Application by Attorney General (No 3 of 2002) (2004) 61 NSWLR 305
- R v KNL (2005) 154 A Crim R 268
- Baker v The Queen [2004] HCA 45; 78 ALJR 1483
- Al-Kateb v Godwin (2004) 219 CLR 562