574 [1969] REGINA v. GRANTHAM

Transcription

1 574 [1969] [COURTS-MARTIAL APPEAL COURT] " REGINA v. GRANTHAM 1969 Feb. 20; March 20 Lord Parker C.J., Widgery L.J. and Lawton J. Military Law Courts-Martial Appeal Court Jurisdiction Right -n of appeal to Whether single right Determination of appeal or application Whether jurisdiction to reopen Applications for leave to appeal dismissed on merits Further application based on fresh evidence Whether court functus officio Courts- Martial {Appeals) Act, 1968 (c. 20), ss. 8 (1) (2), 9, 11 (2), 28 (1) (2), 34, 36 Criminal Appeal Act, 1968 (c. 19), s. 17 Courts- Martial Appeal Rules, 1968 (S.I. 1968, No. 1071), r. 5 Criminal Appeal Rules, 1968 (S.I. 1968, No. 1262), r. 10 (4). r Crime Court of Appeal Jurisdiction Application for leave to ^ appeal dismissed on merits Determination Practice Whether jurisdiction to hear second application Fresh evidence Reference by Secretary of State. Section 8 of the Courts-Martial (Appeals) Act, 1968,* confers a single right of appeal which incorporates a right to apply once only for leave to appeal under section 9 (post, p. 580D). Where, therefore, a defendant, whose application for leave to appeal against conviction was refused on its merits by the full court, subsequently sought an extension of time in which to make a second application for leave to appeal against conviction, and requested the court to hear fresh evidence: Held, that the court had no jurisdiction to hear the applications (post, p. 578D). Reg. v. Moore [1957] 1 W.L.R. 841; [1957] 2 All E.R. 703, CCA. applied. Semble, when an appeal or application for leave to appeal has been effectively disposed of the court is functus officio, and if new matter comes to light thereafter the proper course is to petition the Secretary of State, who may refer the matter to the court under section 34 of the Courts-Martial (Appeals) Act, 1968, or section 17 of the Criminal Appeal Act, 1968 (post, pp. 578D, 580G). The following cases are referred to in the judgment: Reg. v. Healey (1956) 40 Cr.App.R. 40, CCA. Reg. v. Moore [1957] 1 W.L.R. 841; [1957] 2 All E.R. 703, CCA. Reg. v. Warner [1969] 2 A.C. 256; [1968] 2 W.L.R. 1303; [1968] 2 All E.R. 356, H.L.(E.). Rex v. Pitman (1916) 12 Cr.App.R. 14, CCA. Rex V. Van Dyn (1932) 23 Cr.App.R. 150, CCA. 1 Courts-Martial (Appeals) Act, 1968, s. 8 (1): "Subject to the provisions of this Act, a person convicted by court-martial may, with the leave of the Appeal Court, appeal to the court against his conviction." S. 9: "(1) Leave to appeal to the Appeal Court shall be given except on an application in that behalf made by or on behalf of the appellant and lodged, within the prescribed period, with the registrar. (2) The application must be in the pre- H scribed form and specify the grounds on which leave to appeal is sought and such other particulars, if any, as may be prescribed. (3) The Appeal Court may extend the period within which an application for leave to appeal must be lodged, whether the period has expired or not...." D E F G

2 A B 2 Q.B. Reg. v. Grantham (C.-M.A.C.) 575 Sweet V. Parsley [1968] 2 Q.B. 418; [1968] 2 W.L.R. 1360; [1968] 2 All E.R. 337, D.C. Yeandel v. Fisher [1966] 1 Q.B. 440; [1965] 3 W.L.R. 1002; [1965] 3 All E.R D.C. The following additional cases were cited in argument: Reg. v. Aldrich [1962] Crim.L.R. 541, CCA. Reg. v. Caddy [1959] 1 WI.R. 868; [1959] 3 All E.R. 138n., Ct.-M.A.C Reg. v. Parks [1961] 1 W.L.R. 1484; [1961] 3 All E.R. 633, CCA. Rex v. Brownhill (1913) 8 Cr.App.R. 258, CCA. Rex v. Rowland [1947] K.B. 460, CCA. APPLICATIONS. On April 17, 1967, at a general court-martial held in Germany, the r applicant, Leslie Michael Grantham, aged 20, a lance-corporal in the 1st Battalion Royal Fusiliers, was convicted of the murder of Felix Reese, a taxi driver, by shooting him at Osnabruck. The applicant was sentenced to life imprisonment. On December 4, 1967, an application for leave to appeal against conviction was refused by the full court. On January 3, 1969, a " further application for leave to appeal against conviction and for extension of time D for application for leave to appeal" and an " appellant's application to call further evidence " was lodged with the court. On February 20, 1969, the court heard argument on the preliminary question of jurisdiction to hear the applications. Further facts are stated in the judgment of the court. Michael Eastham Q.C. and Christopher Hordern for the applicant. " No statutory provision appears to prevent the making of a second application for leave to appeal. The situation is controlled by sections 8 (1) (2), 9, 18, 28 and 34 of the Courts-Martial (Appeals) Act, There is no reported case in which an application for leave to appeal has been made and refused and thereafter a second application has been made for leave to appeal on different grounds. p The first question is whether the court has jurisdiction to hear and decide a second application for leave to appeal. The court has jurisdiction, and that submission receives support from the cases on abandonment of applications for leave to appeal in which the applicant seeks to raise the same grounds of appeal as were in the abandoned appeal. Although filing of a notice of abandonment automatically acts as the dismissal of that appeal, the court has consistently stated that there is jurisdiction to hear G the appeal. Rex v. Van Dyn (1932) 23 CrApp.R. 150 and Reg. v. Healey (1956) 40 CrApp.R. 40 are authorities for stating that special circumstances would justify setting aside a notice of abandonment, although Reg. v. Moore [1957] 1 W.L.R. 841 suggests that a notice of abandonment will be set aside only if the appellant or applicant can show fraud. If the second application for leave to appeal is on different grounds JJ from the first, a fortiori the court has jurisdiction to hear the new grounds. In this case the fresh evidence refers to matters which occurred before the trial, and the qualifications in Reg. v. Parks [1961] 1 W.L.R are fulfilled. Reg. V. Aldrich [1962] Crim.L.R. 541 refers to evidence of

3 576 Reg. v. Grantham (C.-M.A.C.) [1969] matters after the trial and, therefore, does not apply. Sweet v. Parsley [1968] 2 Q.B. 418 assists the applicant; in that case the certificate was first refused and then, on renewed application, was granted by reason of the criticism of Yeandel v. Fisher [19,66] 1 Q.B. 440 in argument in the House of Lords in Reg. v. Warner [1969] 2 A.C The principle of res judicata does not apply because the applicant's second application is made on different grounds. If no previous application had been made and if the application had been made within the time B limited the court would be bound to hear and grant the application. James Miskin Q.C. and Leonard Krikler for the Crown. The rules do not in fact provide that notice of abandonment operates as a dismissal of the appeal: Reg. v. Caddy [1959] 1 W.L.R Sweet v. Parsley [1968] 2 Q.B. 418 is an example of the court rectifying an error under the slip rule. _, The applicant has two other remedies open to him: first, under section 34 of the Courts-Martial (Appeals) Act, 1968; and, secondly, under section 113 of the Army Act, Section 8 of the Act of 1968 gives the right of appeal, which consists of both the right to apply for leave and the right to pursue the appeal if leave is given. If the application for leave is refused, no right is given to apply again save for the provisions of section 32 relating to a single judge's refusal and reference to a full D court. The right to appeal is comprised partly of the right to apply and partly of the right to appeal if the application is granted. Once an application has been refused the right has gone. There should be an end to litigation in the interests of justice. Section 8, which came into operation on October 1, 1968, applies to convictions only after that date, but section 59 and Schedule 5 preserve certain rights accrued before that date. In that connection " right" means the whole right. The only helpful obiter dicta occur in Rex v. Pitman (1916) 12 Cr. App.R. 14 and Rex v. Brownhill (1913) 8 Cr.App.R. 258, 266. If the applicant is right the court would be obliged to go into the merits, and that could involve an elaborate inquiry. The court is not best suited to conduct such inquiry: Rex v. Rowland [1947] K.B Section 8 of the Act of 1968 provides that a condition precedent to F the application is that a petition has been presented, and the petition is referred to in section 108 of the Army Act, There is no rule that the grounds in the petition and the grounds of application should be the same, but as a matter of common sense they should be the same, and no application should be made until a petition has been presented and refused on the same grounds as the application. No such petition has been presented, and the condition precedent in section 8 has not been complied with. Gordon Slynn as amicus curiae. The applicant's right, if any, must be found in statute. There is no express right to come back, but such right is not expressly excluded. No direct decision can be found on the point. The most relevant cases are Rex v. Pitman (1916) 12 Cr.App.R. 14 and Reg. v. Moore [1957] 1 W.L.R The abandonment cases do not help the JJ applicant since their scope is very limited and there has been no hearing. Similarly, cases where an appeal has been restored because there has been no real hearing due to a procedural defect or the non-attendance of counsel

4 577 2 Q.B. Reg. v. Grantham (C.-M.A..C.) or delay in the post do not take the applicant any further. On the other " hand, the extra safeguards available in the Army Act to members of the armed services in reviewing their sentence ought to be disregarded in deciding whether an appeal lies in the present case. Eastham Q.C. replied. LORD PARKER C.J. The court has concluded that they have no juris- B diction to entertain these applications. The reasons will be put into writing. Cur. adv. vult. March 20. WIDGERY L.J. read the following judgment of the court. This applicant, Leslie Michael Grantham, was convicted by a general courtmartial at Bielefeld in Germany on April 17, 1967, of the murder of one *-" Reese on December 4,1966. It was common ground that the applicant had threatened Reese with a pistol with intent to rob him, and that Reese had been shot in the head in the course of the incident, but the defence contended that the applicant was unaware that the pistol was loaded and had no intent to kill or cause grievous bodily harm. At the trial, evidence was given by one Marks that he had supplied the applicant with a pistol and D ammunition but the applicant denied that he had received any ammunition. The applicant applied to this court for leave to appeal against his conviction but this application was refused by the full court on December 4, He now seeks an extension of time in which to make a second application for leave to appeal against his conviction for murder, and requests the court to hear fresh evidence. The evidence which it is desired to call is that of a witness who met Marks in prison before Marks gave E evidence at the court-martial and who, it is alleged, will say that Marks confessed that he had not supplied the applicant with ammunition but had loaded the pistol unknown to the applicant. The court has heard argument on the preliminary question of whether it is competent to hear these applications in view of the refusal of leave by the full court on December 4, F Counsel agree that there is no authority on this question either in relation to this court since its inception in 1951, or in relation to the Court of Criminal Appeal or the Court of Appeal (Criminal Division). By section 8 (1) of the Courts-Martial (Appeals) Act, 1968, it is provided that: " Subject to the provisions of this Act, a person convicted by court- G martial may, with the leave of the Appeal Court, appeal to the court against his conviction." By section 9: " (1) Leave to appeal to the Appeal Court shall not be given except on an application in that behalf made by or on behalf of the appellant and lodged, within the prescribed period, with the registrar. (2) The application must be in the prescribed form and specify the grounds on which leave to appeal is sought and such other particulars, if any, as may be prescribed. (3) The Appeal Court may extend the period

5 578 Reg. v. Grantham (C.-M.A.C.) [1969] within which an application for leave to appeal must be lodged, whether the period has expired or not...." The Courts-Martial (Appeals) Act, 1968, is a consolidating Act which replaces Part I of the Courts-Martial (Appeals) Act, The Act of 1951 was modelled upon the Criminal Appeal Act, 1907, which provided a right of appeal after conviction on indictment and contained a similar requirement for the obtaining of leave, and this is now repeated in the Criminal Appeal Act, 1968, which governs procedure in the Court of B Appeal (Criminal Division). Both this court and the Court of Appeal have from time to time allowed an appeal, or an application for leave to appeal, to be " re-listed " for further argument when some procedural defect in the original disposal of the matter has come to light. Thus if, through a misunderstanding, counsel has not appeared, or papers submitted by the applicant have been delayed in the post, the court has restored the Q matter to the list to hear argument or consider the papers as the case may be. No member of the present court, however, can recollect a case in which an application or appeal once effectively disposed of has been reopened by the court. Indeed, it has been assumed that the court is then functus officio and that if new matter comes to light thereafter the applicant's proper course is to petition the Secretary of State, who can himself refer the matter to the court under section 34 of the Courts-Martial (Appeals) Act, 1968, or D section 17 of the Criminal Appeal Act, It is this assumption which is challenged in the present application. Such assistance as is provided by authority comes from the cases where an applicant has abandoned his appeal, or application, and subsequently seeks to withdraw such abandonment. Rule 5 of the Courts-Martial Appeal Rules, 1968 (S.I No. 1071), authorises such abandonment on notice E to the registrar, and in the case of appeals after trial on indictment rule 10 of the Criminal Appeal Rules, 1968 (S.I No. 1262), re-enacts a similar provision in earlier rules, and goes further to provide in sub-rule (4): " Where an appeal or an application for leave to appeal is abandoned, the appeal or application shall be treated as having been dismissed or refused by the court." F In Rex V. Pitman (1916) 12 Cr.App.R. 14, an appellant who had abandoned his appeal moved ex parte for leave to withdraw his notice of abandonment contending that he acted on a misapprehension as to the availability of funds for the appeal. The application was refused but Lord Reading CJ. observed, at p. 14: " There is no doubt that this court has power either to allow the notice _ of abandonment to be withdrawn or to reopen an appeal which has been dismissed." Recent decisions on the withdrawal of an abandonment, however, have restricted the circumstances in which it can be allowed. Thus in Reg. v. Healey (1956) 40 Cr.App.R. 40 Lord Goddard CJ. said, at p. 43: " There is no doubt that the court has power to allow the withdrawal JJ of a notice of abandonment. It has very seldom allowed it. It is allowed only if there are special circumstances or, as Avory J. put it in Rex v. Van Dyn (1932) 23 Cr.App.R. 150, 152, some misapprehension

6 579 2 Q.B. Reg. v. Grantham (C.-M.A.C.) or mistake of fact. Exactly what the learned judge meant by 'misapprehension' as distinct from a mistake of fact is perhaps difficult to understand. He was thinking probably of some misapprehension as to what had happened with regard to the appeal or with regard to the notice of appeal." Finally in Reg. v. Moore [1957] 1 W.L.R. 841, Lord Goddard CJ. said, _ at p. 842: " There have been from quite early days in the history of the court, applications for leave to withdraw a notice of abandonment, and it is exceedingly difficult to understand what power the court has to give leave to withdraw a notice of abandonment, considering that by the rules, which have the force of a statute, the appeal has been dismissed. An examination of the cases has shown that, except in one case at any C rate, the court has only allowed notice of abandonment to be withdrawn if they are satisfied that there has been some mistake." Having pointed out that the court could treat a notice of abandonment as a nullity if the prisoner had in some way been fraudulently led or induced to give it, Lord Goddard CJ. concluded, ibid.: "... but where there has been a deliberate abandonment of an appeal, in the opinion of the court there is no power or right to allow the notice of abandonment to be withdrawn and the appeal reinstated, because the appeal having been dismissed the court has exercised its powers over the matter and is functus officio." Mr. Eastham argues that both in its practice of " re-listing," and in permitting the withdrawal of an abandonment, the court is recognising an fc inherent power to reopen an appeal or application for good cause, but in our opinion the practice in each case has been the same, namely, to reconsider a matter if it has never properly been determined owing to some procedural error or mistake. No trace is to be found of the court reopening an appeal on its merits on fresh evidence subsequently coming to light, and it is evident that Lord Goddard CJ. would have regarded this as an F excess of jurisdiction if the appeal had been abandoned. It would be strange if the court had jurisdiction to hear a fresh application but had no power to allow an abandonment of the original application to be withdrawn. Reference was also made to Sweet v. Parsley [1968] 2 All E.R. 337, where the report speaks of an application for leave to appeal to the House of Lords being renewed after a prior refusal, but the _ facts of that case were very special. In the first place the projected appeal was not from this court or the Court of Appeal (Criminal Division) but from a Divisional Court. The decision of that court was based on Yeandel v. Fisher [1966] 1 Q.B. 440, which, unknown to the members of the court, had been the subject of criticism in the House of Lords during argument in Reg. v. Warner. The opinion of the House of Lords in Reg. v. Warner [1969] 2 A.C. 256 was not published until after the Divisional Court had refused Miss Sweet leave to appeal but on receipt of that opinion the court was able to certify that a point of law of general public importance arose in her appeal and to grant leave accordingly. We do not think that

7 580 Reg. v. Grantham (C.-M.A.C.) [1969] these events cast light on the jurisdiction of this court in the present application. " This court is created by statute and has no jurisdiction beyond that which Parliament has conferred upon it. By the combined effect of sections 8 and 9 of the Courts-Martial (Appeals) Act, 1968, a person convicted by court-martial has a right to appeal but must, as a first step, obtain the leave of the court before presenting his appeal. Parliament must be presumed to be mindful of the need to make an end to proceedings and g prima facie an appeal means one appeal and " an application " means one application. Although section 11 (2) contains some safeguard against frivolous applications we do not think that repeated applications are contemplated merely because they are made at the applicant's own risk. If section 8 envisages more than one appeal arising out of the same conviction the purpose of the Secretary of State's powers under section 34 becomes obscure, because it would follow that the applicant could always ^ approach the court directly without the intervention of the Secretary of State. Nor do we see any reason for distinguishing between applications and appeals in this respect because the right to apply for leave is not a separate right but part and parcel of an indivisible right of appeal conferred by section 8. Indeed when the Act contemplates the renewal of an application after refusal by a single judge it expressly so provides in section > 36. In the judgment of this court the language of the Act as a whole points to the conclusion that section 8 confers a single right of appeal which incorporates a right to apply once, and once only, for leave to appeal under section 9. We are reinforced in this view by the fact that when Parliament consolidated the earlier legislation in the Act of 1968 it must be presumed to have done so with knowledge of Lord Goddard CJ.'s judgment in Reg. E v. Moore [1957] 1 W.L.R. 841 and in the belief that beyond the bounds there stated the court had no power to sanction the withdrawal of an abandonment or the making of a fresh application for leave. Mr. Eastham, however, takes one further point. He refers us to section 28 (1) of the Act, under which this court can receive fresh evidence, and points out that under section 28 (2) it is provided that where such p evidence is tendered the court shall receive it if the conditions of the subsection are satisfied. Accordingly, he contends that where an application for leave is based on fresh evidence of an acceptable kind the court must have jurisdiction to hear the application, since it cannot otherwise comply with the mandatory terms of section 28 (2). In our judgments, however, section 28 presupposes the existence of a competent appeal or application, and is concerned only with the procedure thereon. G In the judgment of the court, therefore, there is no jurisdiction to hear these applications. Order accordingly. Solicitors: Kingsley, Napley & Co.; Director of Army Legal Services; JJ Treasury Solicitor. L. N. W.