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Court of Criminal Appeal 16 May 2007

FOLBIGG v R

[2007] NSWCCA 128

Homicide
CRIMINAL LAW APPLICATION TO REOPEN APPEAL APPEAL AGAINST CONVICTION DISMISSED APPEAL AGAINST SENTENCE ALLOWED WHETHER COURT ORDERS HAD BEEN ENTERED DATE UPON WHICH ORDERS PERFECTED

Citation: Folbigg v R [2007] NSWCCA 128
Court: New South Wales Court of Criminal Appeal
Date: 16 May 2007
Judge(s): McClellan CJ at CL; Simpson J; Bell J

Background

The appellant had been convicted by jury of three counts of murder, one count of manslaughter, and one count of maliciously inflicting grievous bodily harm. She was originally sentenced to 40 years' imprisonment with a 30-year non-parole period. On appeal in February 2005, the Court of Criminal Appeal dismissed the conviction appeal but allowed the sentence appeal, reducing the total term to 30 years with a 25-year non-parole period.

Shortly after the appeal judgment was delivered, the appellant's solicitor became aware of a possible irregularity in the jury's conduct during the trial. Specifically, the allegation was that a juror may have researched the appellant's personal and family history on the internet during the proceedings. The solicitor notified the Director of Public Prosecutions, and the matter was investigated by the Sheriff, who prepared a report for the Supreme Court.

The central procedural difficulty was that by the time the appellant sought to reopen the appeal in July 2006, the Crown contended that the Court's orders had already been perfected (that is, formally entered on the court record), which would ordinarily extinguish the Court's jurisdiction to revisit the matter.

  • Whether the Court of Criminal Appeal had jurisdiction to reopen an appeal after its orders had been delivered
  • Whether the Court's orders had in fact been perfected (entered on the records of the Supreme Court) before the application to reopen was made on 31 July 2006
  • Whether any assurance given by the Prothonotary that the orders would not be entered could preserve the Court's jurisdiction, even if perfection had technically occurred

Decision

The Court's jurisdiction to reopen a criminal appeal turns on whether its orders have been perfected. Under the Criminal Appeal Rules, orders are perfected when the Prothonotary of the Supreme Court (as the proper officer of the trial court) enters the particulars of the Court of Criminal Appeal's notification on the Supreme Court's records. In practice, the relevant administrative step was attaching the Court's orders to the trial indictment.

The Prothonotary gave evidence that, after the alleged jury irregularity came to light, he was approached by the appellant's solicitor who asked that the orders not be entered until the appellant had an opportunity to consider her position. An assurance was given to that effect. Despite that assurance, the evidence suggested the orders may have been entered on 5 July 2006, before the reopening application was filed on 31 July 2006. The Prothonotary was ultimately satisfied, however, that the orders had not been properly entered at the time the application was made.

McClellan CJ at CL held that, on the evidence before the Court, the application to reopen had been made before the orders were perfected. This meant the Court retained jurisdiction to entertain the application. His Honour found it unnecessary to finally resolve the broader question of whether jurisdiction could survive perfection where the Court had given an assurance to a party that entry would not occur without further notice, and that assurance had been breached through no fault of the appellant. His Honour did, however, express reluctance to accept that a party could be precluded from seeking relief in such circumstances. Simpson J and Bell J agreed with the Chief Judge.

The Court allowed the application to reopen and directed that the substantive application be heard.

Orders Made

  • Application to reopen the appeal allowed
  • Directions made for the further conduct of the matter

Key Takeaways

  • Under the Criminal Appeal Rules, orders of the Court of Criminal Appeal are perfected when the Prothonotary enters the particulars of the notification on the records of the trial court, with the accepted administrative practice being attachment of the orders to the trial indictment.
  • The Court of Criminal Appeal confirmed it retains jurisdiction to reopen an appeal where the application is made before the orders have been perfected.
  • McClellan CJ at CL declined to finally resolve whether perfection of orders, in circumstances where the court had assured a party they would not be entered without further notice and that assurance was breached, would nonetheless extinguish jurisdiction.
  • A key consideration identified in the reopening jurisdiction is whether a refusal to reconsider might lead to a miscarriage of justice, with the interests of justice accorded full weight alongside the principle of finality.
  • An allegation that a juror conducted independent internet research about an accused during trial was treated as a potentially significant irregularity warranting further examination through the reopening process.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 474D (now s 78 Crimes (Appeal and Review) Act 2001)
- Crimes (Appeal and Review) Act 2001 (NSW), s 78
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules, rr 50A–54

Cases:
- Burrell v R [2007] NSWCCA 79
- R v Reardon (No 2) (2004) 60 NSWLR 454
- Regina v Lapa (No 2) (1995) 80 A Crim R 398
- R v Folbigg [2005] NSWCCA 23 (the earlier appeal judgment)