High Court of Australia Wilson, Brennan, Dawson, Toohey and Gaudron JJ. R v Lewis [1988] HCA 24 ORDER Application for special leave to appeal refused. The Court delivered the following written judgment:— May 20 Wilson, Brennan, Dawson, Toohey and Gaudron JJ. This is an application by the Crown for special leave to appeal from a decision of the Supreme Court of the Northern Territory sitting as the Court of Criminal Appeal delivered on 17 July 1987 whereby a conviction of the respondent was quashed and a judgment and verdict of acquittal entered. There are two grounds advanced in support of the application, both of them concerning the procedure followed by the Court in dealing with the respondent's appeal. It is necessary to describe the course of events in some detail. On 24 October 1986 the respondent was convicted of unlawful assault on a female with intent to have carnal knowledge accompanied by a circumstance of aggravation in that he had carnal knowledge of that female. The charge was laid pursuant to s. 192(1) and (4) of the Criminal Code N.T.. An application for leave to appeal, on grounds which were never pursued, was lodged. The application came on for hearing on 7 May 1987 by a Court comprising O'Leary C.J., Maurice J. and Muirhead A.J. At the commencement of the proceedings on that day, counsel appearing for the respondent was given leave to withdraw and the matter continued thereafter with the respondent unrepresented but indirectly deriving some benefit from the participation of counsel as amicus curiae. The respondent tendered a twelve-page handwritten document as an outline of the grounds upon which he wished to appeal. Since they raised matters of fact or mixed law and fact, it was necessary for him to obtain the leave of the Court: Criminal Code, s. 410(b). Discussion then proceeded for some hours between members of the Court and the respondent, the amicus curiae and counsel appearing for the Crown. The subject of discussion was the manner in which the Court should proceed to hear the application for leave and in particular whether additional evidence should be received. The matter was then adjourned to the following day. On resumption on 8 May 1987, the Chief Justice sketched the course that the case had taken to that point and continued: In general terms, the matters which he now wishes to raise relate to the conduct by his counsel of his defence at the trial, and in particular, the failure of his counsel to adduce certain evidence at the trial which he says if put before the jury would have affected its verdict. His application now is that since the evidence was not before the jury, there has been a miscarriage of justice, and in consequence he should have leave to raise these matters on the appeal. Having regard to the unusual nature of the new matters sought to be raised and the special conditions, or the special considerations which they involve, we think that the question whether or not the appellant should have leave to raise them on the appeal should be determined as a preliminary matter before we embark on the hearing of the appeal itself. We therefore propose to give directions for the determination of that question The Court then gave directions with respect to the preparation and filing of affidavits and other matters related to the hearing of the application for leave to appeal. The hearing of the application resumed on 1 July 1987, when the Court was constituted by Maurice and Asche JJ. and Muirhead A.J. No objection was taken by either the respondent or the Crown to the reconstitution of the Court. The day was substantially taken up with the examination and cross-examination of the respondent on matters related to the conduct of the defence by his counsel at the trial. When the hearing continued on 2 July 1987, evidence was led by the respondent from his mother and his brother in support of the application for leave to appeal on the ground of a miscarriage resulting from his counsel's conduct of the defence. Then followed a lengthy discussion involving the Court, the amicus curiae and the parties in an attempt to distil from the twelve-page handwritten document distinct grounds of appeal that would provide an appropriate vehicle for the Court to consider the application for leave and, if leave were granted, the appeal. On more than one occasion during the day, comments were made by the presiding judge that the Court was at that stage concerned only with the application for leave. But at the end of the day, the presiding judge said to the amicus curiae, who at the request of the Court had assisted the respondent in preparing succinct grounds of appeal: I hope it's the last time we are going to have to impose on you, and it's anticipated then that we will try and cover all aspects of the appeal against conviction tomorrow, save perhaps whether you need to go into evidence On 3 July 1987 a full day was taken up with submissions from the parties and the amicus curiae on the basis of an amended set of grounds of appeal tendered at the commencement of the day's hearing. The submissions were directed to the question whether leave should be granted in respect of all or any of those grounds. At the end of the day's hearing the matter was adjourned sine die. On 17 July 1987, without any opportunity for further submissions to be made, the Court unanimously ordered that the respondent have leave to amend his grounds of appeal to add a further ground that, having regard to the evidence given at the trial, it was unsafe to allow the verdict to stand. The Court then ordered that leave to appeal be granted and that the appeal be upheld. At the same time each member of the Court published reasons for granting leave to appeal, allowing the appeal and quashing the respondent's conviction. The Crown counsel immediately expressed his concern at the course of events, saying that he understood that if leave to appeal were to be granted, "the Crown was to be given the right to consider its position in relation to the calling or otherwise of [counsel for the respondent at trial], and of instructing solicitors". It is apparent that counsel for the Crown was expecting also to have a further opportunity to address the Court. It is in the light of these circumstances that the complaints of the Crown are to be evaluated. The first ground on which special leave is sought is that the Court erred in changing its membership in the course of the hearing of the appeal. Of course, it is of fundamental importance that a court which enters upon the exercise of jurisdiction should see the matter through to finality. If through force of circumstances that cannot be done then the hearing must be commenced de novo unless there is some other more convenient arrangement which has the consent of all the parties and is not inimical to the proper adjudication of the matter. In the present case, however, the Crown's criticism of the Court in this regard is not well founded. The proceedings of 7 and 8 May 1987 were no more than a preliminary examination of the issues sought to be raised by the respondent in order to determine the manner in which the hearing should proceed. In short, it was no more than a directions hearing and concluded with the Court giving the necessary directions. It did not embark on a hearing of the merits of the application. This is borne out by the absence of any objection from either party when the proceedings resumed before a differently constituted Court on 1 July 1987. In any event, a perusal of the transcript of the entire proceedings fails to yield any cause for concern that the reconstitution of the Court was prejudicial in any way to either party, with the consequence that even if the hearing of the merits of the application was thought to have been begun on 7 May 1987 the point now taken by the Crown would not warrant the grant of special leave. The second ground argued by the Crown was that the Crown was denied natural justice in that the Court decided the appeal on an issue which was not agitated before it and in respect of which the Crown was given no opportunity to be heard. Although not expressly advanced as a ground of appeal, it was apparent that the complaint went as well to the determination by the Court of the appeal when what had been adjourned on 3 July 1987 was the application for leave to appeal. The resolution of this question is not without difficulty. So long as the twelve-page handwritten submission of the respondent was the subject of submissions by the parties, it would be difficult to say that the Crown had no opportunity to be heard on the question whether the verdict was unsafe. The concluding submission in that document referred to Chamberlain v. The Queen [No. 2] [1] and argued in effect that as a matter of law it would be unsafe or dangerous on the evidence to allow the verdict to stand. But that document was displaced by the revised statement of grounds that was tendered by the respondent at the commencement of the proceedings on 3 July 1987. The nearest that this statement got to an allegation that it would be unsafe to allow the verdict to stand was in ground 10, which alleged: "There has been a substantial miscarriage of justice when the defects in the conduct of my trial are looked at in totality." It will be seen that these words, by focusing on the conduct of the respondent's defence by his counsel, divert attention away from any general ground that the verdict was unsafe. 1. (1984) 153 C.L.R. 521. In any event, it is said for the respondent that the Crown counsel addressed the Court at some length on 3 July 1987 and that in the course of that address he reviewed the evidence in the light of the criticism that had been made. Nevertheless, attention must be focused on the steps taken by the Court when delivering judgment on 17 July 1987. The first step, without any application in that regard having been made by or on behalf of the respondent, was to give the respondent leave to amend his grounds of appeal to add the further ground formulated by the Court. There could be no objection to that step being taken provided that an opportunity was then given to each party to speak to the proposal. As it was, even the respondent was given no opportunity to seek the leave which was being proffered to him. The Court proceeded at once to grant leave to appeal and to allow the appeal. It did so without hearing the Crown on the new ground of appeal for which leave was given. It is no answer to say that the Crown had had an opportunity to address submissions with respect to the "totality" of the evidence because that word was used in the respondent's grounds of appeal in relation to the conduct of the trial and was to be seen as having particular reference to the manner in which his defence had been conducted. Once it be conceded, as in our view it must be, that the Crown counsel was denied an opportunity to make a general summation of the evidence with a view to demonstrating that notwithstanding the submissions advanced for the respondent the verdict was neither unsafe nor unsatisfactory, then it must follow that the proceedings were marked by a serious irregularity in procedure whereby the Crown was denied natural justice. The Crown is as much entitled to natural justice as any other litigant. It must be recognized that these particular proceedings made extraordinary demands upon the Court, involving both procedural difficulty and factual complexity. Nevertheless, the oversight that marred its conclusion must be exposed. Prima facie, the consequences that would follow from this conclusion are that the application for special leave would be granted, the appeal allowed and the matter remitted to the Court of Criminal Appeal for rehearing. But the grant of special leave is discretionary and the question here is whether the intervention of this Court is necessary for the proper administration of justice. An application by the Crown which seeks to set aside a judgment of acquittal entered by the Court of Criminal Appeal is, of course, an exceptional proceeding (Reg. v. Whitworth [2] ) and an exercise of the discretion calls for consideration of the effect of the impugned judgment on the respondent. The alleged offence occurred on 18 January 1985. The respondent was arrested on 8 February 1985 and committed for trial on 2 May 1985. The trial did not take place until October 1986. On conviction the respondent was sentenced to a period of four years' imprisonment with a minimum non-parole period of two years. When the verdict of acquittal was entered by the Court of Criminal Appeal on 17 July 1987, he was released from custody having served a period of fourteen months in custody under the sentence. He has now been at liberty for a period of about ten months. It is of importance to note that the oversight on the part of the Court which resulted in a denial of natural justice to the Crown was not caused or contributed to by any conduct of the respondent or, for that matter, of the Crown. It was not open to be forestalled or prevented by either party. The relief which the Crown seeks is an order setting aside the judgment of the Court of Criminal Appeal and remitting the matter to that Court for rehearing de novo. Such an order might warrant the apprehension of the respondent and his return to custody. In these circumstances, the administration of criminal justice does not require this Court to intervene, particularly when a reading of the reasons for judgment of the members of the Court of Criminal Appeal suggests that the Crown would face considerable difficulty in persuading any court that, having regard to the evidence, the verdict of the jury was not unsafe. 1. (1988) 164 C.L.R. 500. That is not to say that the Crown's right to seek special leave to appeal is illusory. Special leave will be granted in an appropriate case. What is appropriate will depend on the origins of the error of the Court below, the nature of the error and of the offence and all the circumstances of the case. In the circumstances to which we have referred, we do not think that the interests of the administration of criminal justice require this Court to intervene. The application for special leave to appeal is refused.