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Report No. 35

19. Considerations Governing Review on Certiorari

Supreme Court rules.-(1) A review on writ of certiorari is not a matter of right, but of sound judicial discretion, and will be granted only where there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons which will be considered:-

"(a) Where a state court has decided a Federal question of substance not therefore determined by this court, or has decided it in a way probably not in accord with applicable decisions of this court.

(b) Where a court of appeals has rendered a decision in conflict with the decision of another court of appeals on the same matter; or has decided an important state or territorial question in a way in conflict with applicable state or territorial law; or has decided an important question of Federal law which has not been, but should be, settled by this court, or has decided a Federal question in a way in conflict with applicable decision of this court; or has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of this court's power of supervision.

(2) The same general considerations outlined above will control in respect of petitions for writs of certiorari to review judgments of the court of claims, of the court of Customs and Patent Appeals, or of any other court whose determinations are by law reviewable on writ of certiorari."

Review by a Federal Court for a prisoner in Federal custody may also be obtained under 28 USC 2255 to the extent that relief is available under this section. It provides that:

"A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorised by law, or is otherwise subject to collateral attack, may move the court which imposed "the sentence to vacate, set aside or correct the sentence."

Thus, a murder indictment which charged that the crime had been committed on a Washington reservation but failed to allege that the defendant or the victim was an Indian, stated no basis for Federal jurisdiction, and even though the defendant had pleaded guilty, he could thereafter collaterally attack the charge in a s. 2255 proceeding1.

1. See Hildebrand v. United States, 261 F 2nd 354, (CA 9, 1958).

This section, however, is not a substitute for appeal and cannot be resorted to by a petitioner to review the sufficiency of the evidence.

Final judgments or decrees rendered by the highest court of a state in which a decision could be had may be reviewed by the Supreme Court of the United States1. A defendant who has been sentenced under a state statute which he claims is repugnant to the United States Constitution or who claims deprivation of other Constitutional rights may petition to have his case reviewed by the Supreme Court. Once again, the standards of Supreme Court rule 19 apply.

A recent State case illustrates the attitude of some members of this Court toward the granting of certiorari in death cases. The case involved the imposition of the death penalty on a convicted rapist who concededly had neither taken nor endangered human life. Although certiorari was denied, Mr. Justice Goldberg, with whom Mr. Justice Doublas and Mr. Justice Brennan joined, dissented. He said,-

1. 28 USC 1257.

"I would grant certiorari in this case and in Snyder v. Cunningham 169 Misc. to consider whether the Eighth and Fourteenth Amendments to the United States Constitution permit the imposition of the death penalty on a convicted rapist who has neither taken nor endangered human life. The following question, inter alia, seem relevant and worthy of argument and consideration-

"(1) In light of the trend both in this country and throughout the world against punishing rape by death, does the imposition of the death penalty by those states which retain it for rape violate 'evolving standards of decency that mark the progress of [our] maturing society', or 'standards of decency more or less universally accepted'?

(2) Is the taking of human life to protect a value other than human life consistent with the constitutional proscription against 'punishment which by their excessive severity are greatly disproportioned to the offence charged?

(3) Can the permissible aims of punishment (e.g., deterrence, isolation, rehabilitation) be achieved as effectively by punishing rape less severely than by death (e.g., by life imprisonment), if so, does the imposition of the death penalty ,for rape constitute 'unnecessary cruelty'?

Finally, a Federal court has the power to grant writs of habeas corpus for the purpose of inquiring into cause of restraint of liberty of anyone in custody under authority of the state in violation of the Federal Constitution1, provided the applicant has exhausted all remedies available in the courts of the State and in the Supreme Court of the United States by appeal or writ of certiorari2. Thus, a defendant convicted of murder and sentenced to death in a State court who claimed that his conviction was in violation the Fourteenth.

Amendment because of the admission in evidence of a confession obtained while he was under the influence of drugs and who had exhausted all state remedies was held to be entitled to a plenary evidentiary hearing in the Federal court on his habeas corpus application in view of the fact that he did not get a full and fair hearing on this question in the State courts3.

1. 28 USC 2241; Irwin v. Doud, 359 US 394 (1959)

2. 28 USC 2254.

3. Townsend v. Sain, 372 US 293 (1962).

England

1. Appeals to the Court of Criminal Appeal-Under section 3 of the Criminal Appeal Act, 1907, (7 Edw. 7, c. 73), a person convicted on indictment may appeal under that Act to the Court of Criminal Appeal. The section is quoted below:-

"3. A person convicted on indictment may appeal under this Act to the Court of Criminal Appeal-

(a) against his conviction on any ground of appeal which involves a question of law alone; and

(b) with the leave of the Court of Criminal Appeal or upon the certificate of the judge who tried him that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal; and

(c) with the leave of the Court of Criminal Appeal against the sentence passed on his conviction, unless the sentence is one fixed by law."

2. Under section 2(4) of the Sentence of Death (Expectant Mothers) Act, 1931 (21 and 22 Geo. 5, Ch. 24) read with section 2(1), where a woman convicted of a capital offence alleges that she is pregnant or, the convicting court thinks it proper to make an inquiry, the question of pregnancy shall be determined by a jury before the sentence is passed; and if the jury finds that she is not pregnant, she may appeal under the 1907 Act to the Court of Criminal Appeal. That Court, if satisfied that for any reason the finding should be set aside, shall quash the sentence of imprisonment for life.

3. Regarding sentences on capital murder, there are certain special provisions in section 9(1) and First Schedule, paragraph 1(2) of the Homicide Act, 1957 (5 & 6 Eliz. 2, c. 11) which are not of much importance for our purpose.

4. House of Lords.-Under section 1 of the Administration of Justice Act, 1960 (8 & 9 Eliz. 2, c. 65), an appeal shall lie from the Court of Criminal Appeal to the House of Lords in certain cases. The section is quoted below:-

"S. (1)-Subject to the provisions of this section, an appeal shall lie to the House of Lords, at the instance of the defendant or the prosecutor,-

(a) from any decision of a Divisional Court of the Queen's Bench Division in a criminal cause or matter;

(b) from any decision of the court of Criminal Appeal on an appeal to that court."

(2) No appeal shall lie under this section except with the leave of the court below or of the House of Lords; and such leave shall not be granted unless it is certified by the court below that a point of law of general public importance is involved in the decision and it appears to that court or to the House of Lords, as the case may be, that the point is one which ought to be considered by that House."

(Section 3 of that Act makes special provisions to the effect that an application for leave to appeal in a case involving sentence of death as well as an appeal for which leave is granted on such application shall be heard and determined with as much expedition as practicable, and provides that the sentence shall not be executed until expiration of the time allowed for such application, etc.).

New Zealand1

1. Treason is now the only crime which is punishable by the death penalty in New Zealand (section 73 of the Crimes Act, 1961). Appeal against conviction for (inter alia) treason is governed by section 383 of the Crimes Act, and lies to the Court of Appeal. On any ground of appeal which involves a question of law alone, the appeal is as of right. On any ground which involves a question of fact or of mixed fact and law, the leave of the Court of Appeal or the certificate of the trial or sentencing judge that it is a "fit case for appeal" is required.

2. No further Appeal.-There is no longer any provision in the Crimes Act or in any other New Zealand legislation providing for further appeals from the Court of Appeal. There is still, however, a right of appeal to the Privy Council by virtue of the Royal prerogative. Halsbury's Laws of England, 3rd Edn., Vol. V, pp. 682 gives an adequate account of the New Zealand position. Two points should however be noted. In the first place, New Zealand Courts no longer have jurisdiction in any case from the Independent State of Western Samoa.

In the-second place, the Court of Appeal in Woolworths N.Z. Ltd. v. Wynne, (1952) NZLR 496 held that, it could grant leave to appeal to the Privy Council in certain circumstances (see Halsbury op. cit., p. 685) but the legislation on which that decision was based is now repealed. The result is, therefore, that special leave to appeal must be obtained from the Privy Council, and this is granted only in exceptional circumstances where "by a disregard of the forms of legal process or by some violation of the principles of natural justice or otherwise substantial and grave injustice has been done,"-Nadan v. The King, (1926) AC 482.

1. Based on Information obtained through the New Zealand High Commission, New Delhi.

Canada

The position regarding appeals in capital cases in Canada can be gathered from the following provisions of the Criminal Code of Canada, (as amended in 1961 by.-10 Eliz 2, Ch. 44 assented to on 13th July 1961) sections 583, 584, 597, 598 and 601 cited below:-

"583. Right of appeal of person convicted.-A person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal-

(a) against his conviction

(i) on any ground of appeal that involves a question of law alone,

(ii) on any ground of appeal that involves a question of fact alone or a question of mixed law and fact, with leave of the court of appeal or upon the certificate of the trial judge that the case is a proper case for appeal, or

(iii) on any ground of appeal not mentioned in sub-paragraph (i) or (ii) that appears to the Court of Appeal to be a sufficient ground of appeal, with leave of the court of appeal, or

(b) against the sentence passed by the trial court with leave of the court of appeal or a judge thereof unless that sentence is one fixed by law.

583A. Right of appeal of person sentenced to death.-(1) Notwithstanding any other provision of this Act a person who has been sentenced to death may appeal to the court of appeal.

(a) against his conviction on any ground of appeal that involves a question of law or fact or mixed law and fact; and

(b) against his sentence unless that sentence is one fixed by law.

(2) Notice deemed to have been given.-A person sentenced to death shall, notwithstanding he has not given notice pursuant to section 586, be deemed to have given such notice and to have appealed against his conviction and against his sentence unless that sentence is one fixed by law.

(3) Court of appeal may consider.-The court of appeal, on an appeal pursuant to this section, shall-

(a) consider any ground of appeal alleged in the notice of appeal, if any notice has been given, and

(b) consider the record to ascertain whether there are present any other grounds upon which the conviction ought to be set aside or the sentence varied, as the case may be.

584. Right of Attorney General to appeal-(1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal-

(a) against a judgment or verdict of acquittal of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone, or

(b) with leave of the court of appeal or a judge thereof, against the sentence passed by a trial court in proceedings by indictment, unless that sentence is one fixed by law.

(2) Acquittal.-For the purposes of this section a judgment or verdict of acquittal includes an acquittal in respect of a principal offence where the accused has been convicted of an offence included in the principal offence.

597. Appeal from conviction: Second Appeal.-(1) A person who is convicted of an indictable offence whose conviction is affirmed by the court of appeal may appeal to the Supreme Court of Canada

(a) in case of dissent-on any question of law on which a judge of the court of appeal dissents, or

(b) on any question of law, if leave is granted by the Supreme Court of Canada within twenty-one days after the judgment appealed from is pronounced or within such extended time as the Supreme Court of Canada or a judge thereof may, for special reasons, allow.

(2) A person

(a) Appeal where acquittal set aside-who is acquitted of an indictable offence and whose acquittal is set aside by the court of appeal, or

(b) Where joint trial-who is tried jointly with a person referred to in paragraph (a) and is convicted and whose conviction is sustained by the court of appeal.

may appeal to the Supreme Court of Canada on a question of law. [sections 1023(1), (2), 1025 (1) in part] amended (1956), c. 48, s. 19."

597A. Appeal on law or fact or mixed law and fact.-Notwithstanding any other provision of this Act, a person-

(a) who has been sentenced to death and whose conviction is affirmed by the court of appeal, or

(b) who is acquitted of an offence punishable by death and whose acquittal is set aside by the court of appeal, may appeal to the Supreme Court of Canada on any ground of law or fact or mixed law and fact.

598. Appeal by Attorney General.-(1) Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 583 or 583A or dismisses an appeal taken pursuant to paragraph (a) of sub-section (1) of section 584, the Attorney General may appeal to the Supreme Court of Canada.-

(a) in case of Dissent-on any question of law which a judge of the court appeal dissents, or

(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada within twenty-one days after the judgment appealed from is pronounced or within such extended time as the Supreme Court of Canada or a judge thereof may for special reasons, allow." [Am. 1956, ch. 48, s. 20(1)1.

601. Right of Attorney General of Canada to appeal.-The Attorney General of Canada has the same rights of appeal in proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government as the Attorney General of a province has under this party.



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