Clause 108

In this Division, unless the context otherwise requires —“civil application” means an application to a court when exercising its civil jurisdiction, and includes, where the court is the Court of Appeal, an appeal to the Court of Appeal from any judgment or order of the High Court in such an application;“leave application” means an application for leave to make a review application;“review application” means an application to review an earlier decision of an appellate court.(2) In this Division, unless the context otherwise requires, a civil application is related to a review application made in respect of an earlier decision if —

any common question of law or fact arises in both applications; or

any relief claimed in the civil application —

may affect the review application in any way; or

may affect the outcome of the criminal matter in respect of which the earlier decision was made.(3) In this Division, unless the context otherwise requires, a reference to a decision of a court is a reference to everything decided by the court, and everything comprised in the judgment, sentence or order (if any) of the court, when the court —

delivers judgment in a criminal trial, criminal appeal, case stated, criminal revision or criminal reference; or

issues a certificate under section 394E(1) confirming the imposition of the sentence of death on the accused.Conditions for making review application394G.—

A review application cannot be made in respect of an earlier decision of an appellate court unless any of the following applies:

the earlier decision is a decision of the appellate court on the merits of an appeal;

the earlier decision is a decision of the appellate court to dismiss an appeal under section 387(3) after the appellant fails to appear at the hearing of the appeal, and the appellate court does not reinstate the appeal under section 387(3);

where the appellate court is the Court of Appeal — the earlier decision is a decision of the Court of Appeal to issue a certificate under section 394E(1) confirming the imposition of the sentence of death on the accused;

where the appellate court is the Court of Appeal — the earlier decision is —

a determination by the Court of Appeal of any question of law of public interest referred to the Court of Appeal under section 397; or

an order made by the Court of Appeal under section 397(5).(2) A review application cannot be made by the Public Prosecutor, unless the Public Prosecutor alleges that the earlier decision is tainted by fraud or a breach of the rules of natural justice, and that the integrity of the judicial process is thereby compromised.Application for leave to make review application394H.—

Before making a review application, the applicant must apply to the appellate court for, and obtain, the leave of that court to do so.(2) A leave application must be fixed for hearing within such period as is prescribed by the Criminal Procedure Rules.(3) The applicant in a leave application must file written submissions in support of that application, and such other documents as are prescribed in the Criminal Procedure Rules, within such periods as are prescribed in the Criminal Procedure Rules.(4) The respondent in a leave application may file written submissions in relation to that application within such period as is prescribed in the Criminal Procedure Rules.(5) The appellate court may extend any period mentioned in subsection (2), (3) or (4).(6) A leave application is to be heard —

in any case where the appellate court is the Court of Appeal — by a single Judge of Appeal; or

in any case where the appellate court is the High Court — by the Judge who made the decision to be reviewed or, if that Judge is not available, by any Judge.(7) A leave application may, without being set down for hearing, be summarily dealt with by a written order of the appellate court.(8) Before summarily refusing a leave application, the appellate court —

must consider the applicant’s written submissions (if any); and

may, but is not required to, consider the respondent’s written submissions (if any).(9) Before summarily granting leave to make a review application, the appellate court —

must consider the applicant’s written submissions (if any); and

must consider the respondent’s written submissions (if any).Hearing of review application394I.—

Where the appellate court grants leave to make a review application, the review application must be made to the appellate court, and fixed for hearing, within such period as is prescribed by the Criminal Procedure Rules.(2) The applicant in a review application must file such documents in support of that application, within such period, as are prescribed in the Criminal Procedure Rules.(3) The respondent in a review application must file such documents in relation to that application, within such period, as are prescribed in the Criminal Procedure Rules.(4) The appellate court may extend any period mentioned in subsection (1), (2) or (3).(5) A review application is to be heard —

in any case where the appellate court is the Court of Appeal — by 3 Judges of Appeal or, if the Chief Justice so directs, by 5 or any greater uneven number of Judges of Appeal; or

in any case where the appellate court is the High Court — by a single Judge or, if the Chief Justice so directs, by 3 or any greater uneven number of Judges.(6) The appellate court may hear a review application and any related civil application at the same time or one immediately after another.(7) Despite subsections (1), (5) and (6) —

the Court of Appeal may hear a review application made to the High Court in respect of an earlier decision of the High Court;

the Court of Appeal may hear a civil application, made to the High Court, that is related to a review application (whether made to the Court of Appeal or to the High Court);

where the Court of Appeal so orders, the Court of Appeal may hear a review application (whether made to the Court of Appeal or to the High Court) and any related civil application (whether made to the Court of Appeal or to the High Court) at the same time or one immediately after another; and

every review application or civil application heard by the Court of Appeal under this subsection is to be heard by 3 Judges of Appeal or, if the Chief Justice so directs, by 5 or any greater uneven number of Judges of Appeal.(8) An appellate court, which hears a review application in respect of an earlier decision of that court, may exercise any power and make any order that could have been exercised and made, respectively, by the court that made the earlier decision.(9) Where the appellate court is the High Court, but a review application made in respect of an earlier decision of the appellate court is heard by the Court of Appeal —

the Court of Appeal may exercise any power and make any order that could have been exercised and made, respectively, by the appellate court that made the earlier decision; and

any reference in this Division to the exercise of a power, or the doing of a thing, by the appellate court in relation to the review application includes a reference to the exercise of that power, or the doing of that thing, by the Court of Appeal.(10) A review application may, without being set down for hearing, be summarily dealt with by a written order of the appellate court.(11) Before summarily refusing a review application, the appellate court —

must consider the applicant’s written submissions (if any); and

may, but is not required to, consider the respondent’s written submissions (if any).(12) Except where subsection (11) applies, before summarily deciding a review application on its merits, the appellate court —

must consider the applicant’s written submissions (if any); and

must consider the respondent’s written submissions (if any).Requirements for exercise of power of review under this Division394J.—

This section —

sets out the requirements that must be satisfied by an applicant in a review application before an appellate court will exercise its power of review under this Division; and

does not affect the inherent power of an appellate court to review, on its own motion, an earlier decision of the appellate court.(2) The applicant in a review application must satisfy the appellate court that there is sufficient material (being evidence or legal arguments) on which the appellate court may conclude that there has been a miscarriage of justice in the criminal matter in respect of which the earlier decision was made.(3) For the purposes of subsection (2), in order for any material to be “sufficient”, that material must satisfy all of the following requirements:

before the filing of the application for leave to make the review application, the material has not been canvassed at any stage of the proceedings in the criminal matter in respect of which the earlier decision was made;

even with reasonable diligence, the material could not have been adduced in court earlier;

the material is compelling, in that the material is reliable, substantial, powerfully probative, and capable of showing almost conclusively that there has been a miscarriage of justice in the criminal matter in respect of which the earlier decision was made.(4) For the purposes of subsection (2), in order for any material consisting of legal arguments to be “sufficient”, that material must, in addition to satisfying all of the requirements in subsection (3), be based on a change in the law that arose from any decision made by a court after the conclusion of all proceedings relating to the criminal matter in respect of which the earlier decision was made.(5) For the purposes of subsection (2), the appellate court may conclude that there has been a miscarriage of justice in the criminal matter in respect of which the earlier decision was made, only if —

the earlier decision (being a decision on conviction or sentence) is demonstrably wrong; or

the earlier decision is tainted by fraud or a breach of the rules of natural justice, such that the integrity of the judicial process is compromised.(6) For the purposes of subsection (5)(a), in order for an earlier decision on conviction to be “demonstrably wrong” —

it is not sufficient that there is a real possibility that the earlier decision is wrong; and

it must be apparent, based only on the evidence tendered in support of the review application and without any further inquiry, that there is a powerful probability that the earlier decision is wrong.(7) For the purposes of subsection (5)(a), in order for an earlier decision on sentence to be “demonstrably wrong”, it must be shown that the decision was based on a fundamental misapprehension of the law or the facts, thereby resulting in a decision that is blatantly wrong on the face of the record.Other matters concerning review applications and leave applications394K.—

An applicant cannot make more than one review application in respect of any decision of an appellate court.(2) An applicant cannot make a review application in respect of an earlier decision of an appellate court after —

in any case where a court hears a related civil application made by the same applicant and reserves judgment in that related civil application — the time that court reserves judgment in that related civil application; or

in any other case where a court hears a related civil application made by the same applicant — the time that court delivers judgment in that related civil application.(3) Where the appellate court is the High Court, no appeal may lie against a decision of the appellate court on a leave application or a review application.(4) Where the appellate court is the High Court, no application under section 397(1), and no reference under section 397(2), may be made in respect of a decision of the appellate court on a leave application or a review application.(5) No leave application, and no review application, may be made in respect of a decision of an appellate court on a leave application or a review application.”.