The Court of Criminal Appeal was established by the Criminal Appeal Act, 1912 (Act No. 16, 1912). The Criminal Appeal Rules took effect from 7 August 1912. (1)The Chief Justice could direct that three or more Judges of the Supreme Court constitute the Court of Criminal Appeal. This is subject to the qualification that there is a power to constitute two-judge benches in the case of sentencing appeals that involve no dispute as to any question of principle.
With occasional exceptions, the Judges who sit in the Court of Criminal Appeal are the Chief Justice, President of the Court of Appeal and Chief Judge and Judges of the Common Law Division.
The Crimes Legislation (Review of Convictions) Amendment Act, 1993 (Act No. 64, 1993) commenced on 14 November 1993. The Act amended section 475 of the Crimes Act, 1990 (Act No. 51, 1990 ) and section 26 of the Criminal Appeal Act, 1912 (Act No. 16, 1912) by repealing and re-enacting those provisions in a new section 474 of the Crimes Act.
The amending legislation also allowed persons in respect of whom a special finding of guilt under the Mental Health (Criminal Procedure) Act 1990 (Act No 10, 1990) had been made to apply for a judicial inquiry into that finding as if it were a conviction.
The statutory mechanisms for the review of a criminal conviction available in New South Wales include -
a) An appeal to the Court of Criminal Appeal pursuant to s.5 of the Criminal Appeal Act 1912
b) The direct referral to the Court of Criminal Appeal pursuant to s.26 of the Court of Criminal Appeal Act 1912
c) In the case of convictions imposed by a Local Court in the absence of the defendant the procedure pursuant to Part 4A of the Justices Act 1902
d) An inquiry conducted pursuant to Part 13A of the (NSW) Crimes Act 1900.
Part 13A (sections 474A to P) of the Crimes Act 1900 (NSW) "Review of Convictions", provides a procedure for the review of a criminal conviction where some new evidence or other mitigating circumstances manifest themselves following the trial which raises a doubt as to the convicted person's guilt. There is no formal requirement that Part 13A be used when all other avenues of appeal have failed.
Petitions can be made under Division 2 part 13A for a review of a conviction or for the invocation of the Governor’s power to pardon a conviction. The Governor may direct that a judicial officer conduct an inquiry. The Minister may refer the whole of the case to the Court of Criminal Appeal to be dealt with as an appeal under the (NSW) Criminal Appeal Act 1912, or may request the Court of Criminal Appeal to give an opinion on any point arising in the case.
Action may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. The Governor or the Minister may refuse to consider or otherwise deal with a petition, for instance if the matter has previously been dealt with or if the Minister is not satisfied that there are special facts or circumstances that justify taking further action.
An application for an inquiry into a conviction can be made to the Supreme Court under Division 3 of Part 13A. The Supreme Court may direct that a judicial officer conduct an inquiry.
If an inquiry is directed the subsequent proceedings conducted pursuant to Part 13A are not judicial proceedings, and the judicial officer is not bound by the rules of evidence. The judicial officer conducting the inquiry has the powers of a Royal Commissioner. On completing the inquiry, the judicial officer must send a report on the results of the inquiry (including a transcript of the depositions given in the course of the inquiry) to the Chief Justice. The judicial officer may also refer the matter to the Court of Criminal Appeal where the conviction could be quashed.
There is no prescribed procedure for seeking an inquiry, and petitioners have variously filed a motion supported by an affidavit seeking an order that an inquiry be held, or simply sent a letter seeking the inquiry and an affidavit containing fresh material to the Chief Justice. In either event, a single judge of the Supreme Court then considers the application on the basis of the material presented.
On 12 October 1998 the Court of Criminal Appeal adopted a new approach to the determination of criminal sentences. For the first time in Australia, the Court of Criminal Appeal issued guideline judgments for trial judges which indicate a range of appropriate penalties for particular offences. (2)
A special bench of the Court of Criminal Appeal comprising five judges delivered the first guideline judgment. The appeal involved a conviction for the offence of dangerous driving causing death or grievous bodily harm. The judgment states that it appeared that sentences imposed by trial judges for this offence did not reflect the seriousness with which the community regarded these particular offences. (3)
The Court of Criminal Appeal has laid down two guidelines -
1. sentences which do not involve imprisonment should be exceptional and ordinarily confined to cases in which there had been a momentary inattention or misjudgement by the driver. (4)
2. in cases where the abuse of alcohol or drugs, excessive speed or the manner of driving indicated that the offender had abandoned responsibility for his own conduct, sentences should usually commence from a period of two years imprisonment (for the offence of occasioning grievous bodily harm) and three years imprisonment for an offence occasioning death. The Court of Criminal Appeal also identified a list of aggravating factors which would justify higher sentences. (5)
The proceedings of the Court of Criminal Appeal are held in any one of the following locations – Law Courts Building, Queens Square, Sydney, St James Road Court, St James Road, Sydney, King Street Courthouse, Corner King and Elizabeth Streets, Sydney, Darlinghurst Courthouse, Taylor Square, Sydney, and Wentworth Chambers, 180 Phillip Street, Sydney. The Court’s Registry is in
(1) New South Wales Government Gazette, Vol. 3, 7 August 1912, pp. 5028-36.
(2) New Approaches to Criminal Sentencing by the Honourable J Spigelman Chief Justice of New South Wales,
(6) Attorney General's Department website www.lawlink.nsw.gov.au/lawlink/Supreme_Court/11_sc.nsf/pages/SCO_aboutus (cited 22 February 2008).
Bennett J. M. A History of the New South Wales Bar, The Law Book Company, Sydney, 1969.