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R V Grantham 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,* con­ fers 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 D 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 con­ viction, 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. E 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). F 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. G 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.. .." 575 2 Q.B. Reg. v. Grantham (C.-M.A.C.) Sweet V. Parsley [1968] 2 Q.B. 418; [1968] 2 W.L.R. 1360; [1968] 2 All A E.R. 337, D.C. Yeandel v. Fisher [1966] 1 Q.B. 440; [1965] 3 W.L.R. 1002; [1965] 3 All E.R. 158. 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 B 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 applica­ tion for leave to appeal. The situation is controlled by sections 8 (1) (2), 9, 18, 28 and 34 of the Courts-Martial (Appeals) Act, 1968. 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. 1484 are fulfilled. Reg. V. Aldrich [1962] Crim.L.R. 541 refers to evidence of 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. 256. 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. 868. 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, 1955. 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 opera­ tion 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. 460. 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, 1955. 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.
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