Postiglione v The Queen [1997] HCA 26

High Court of Australia Dawson, Gaudron, McHugh, Gummow and Kirby JJ Postiglione v The Queen [1997] HCA 26

ORDER

1. Appeal allowed.

2. Remit the matter to the Court of Criminal Appeal of New South Wales for it to take such steps as it can to give effect to the decision of this Court.

Cur adv vult

The following written judgments were delivered:—

24 July 1997 Dawson and Gaudron JJ.

The appellant, Mario Postiglione, appeals from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales by which he was granted leave to appeal against sentence and his appeal dismissed. However, the Notification of Court's Determination [1] , which apparently operates as the court's formal order, indicates that he was granted leave to appeal and that the unsuccessful appeal was against conviction rather than against sentence. It is not clear whether that order has been perfected [2] . And, as will later appear, there are other procedural uncertainties associated with this case.

1. See rr 51 and 52 of the Criminal Appeal Rules NSW which relevantly require "a notice of the determination of [an] appeal" and notification of "any orders or directions made or given" to be sent to "the proper officer of the Court of Trial". In accordance with r 53, as it stood when the order was made, the proper officer was thereupon required to "enter the particulars of such notification on the records of the Court of Trial". 2. As to perfection of an order of the Court of Criminal Appeal, see R v Stephens (1990) 48 A Crim R 323 at 326-327, per Allen J (with whom Campbell J and Lusher A-J agreed); R v Lapa [No 2] (1995) 80 A Crim R 398 at 402, per Clarke JA. See with respect to r 35(b) of the Criminal Appeal Rules Vict, a rule similar in substance to r 53 of the Criminal Appeal Rules NSW, R v Billington [1980] VR 625.