Barlow v. The Queen, Court of Appeal - Privy Council, July 08, 2009, [2009] UKPC 30

Resolution Date:July 08, 2009
Issuing Organization:Privy Council
Actores:Barlow v. The Queen


[2009] UKPC 30

Barlow v. The Queen (New Zealand) [2009] UKPC 30 (08 July 2009)

Privy Council Appeal No 32 of 2008

John Robert Barlow Appellant


The Queen Respondent




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Delivered the 8th July 2009

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Present at the hearing:-

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Lord Neuberger of Abbotsbury

Sir Christopher Rose

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[Delivered by Lord Scott of Foscote and Lord Rodger of Earlsferry]


In November 1995 John Barlow was found guilty of murdering Eugene Thomas and his son Gene Thomas at Wellington on 16 February 1994 and was sentenced to life imprisonment. This was the third trial on that charge: two earlier trials in 1995 had ended with the jury unable to reach agreement after a combined total of five and a half days of deliberations. The third jury reached their verdict after 27 hours of deliberation. Mr Barlow appealed, but on 21 August 1996 the Court of Appeal dismissed his appeal. Mr. Barlow remains in prison.

On 22 July 2008 the Judicial Committee heard a petition by Mr. Barlow for special leave to appeal to the Privy Council against the 1996 decision of the Court of Appeal to dismiss his appeal. The petition was based on new evidence which had become known and which their Lordships will later describe.

The Crown opposed the petition on two grounds: first, on the merits, it was submitted that the new evidence did not render the conviction unsafe. Secondly, the Crown took a jurisdiction point. On the basis of the new evidence Mr Barlow had asked the Governor-General, pursuant to section 406 of the Crimes Act 1961, to refer the question of his conviction back to the Court of Appeal. The power of the Governor-General to do so is a statutory addition to the Governor-General's power to exercise the prerogative of mercy. Section 406 provides that

``Nothing in this Act shall affect the prerogative of mercy, but the Governor-General in Council, on the consideration of any application for the exercise of the mercy of the Crown ..., may ... if he thinks fit ... either

(a) Refer the question of the conviction ...

to the Court of Appeal .... or

(b) If he desires the assistance of the Court of Appeal on any point arising in the case with a view to the determination of the application, refer that point to the Court of Appeal for its opinion thereon ....''

The Minister of Justice is the constitutional adviser of the Governor-General in relation to applications under section 406 for the exercise of the prerogative of mercy and the Minister, in turn, is advised by officials in the Ministry with the responsibility of inquiring into, and reporting on, any such application. It is, their Lordships were told, the invariable practice of the Ministry to ask senior external counsel either to report to the Minister or to review the proposed report prepared by the departmental officials. In the case of Mr Barlow's application a Ministry report was prepared and then reviewed by Dr Fisher QC, a retired High Court judge. Dr Fisher, after reviewing the proposed report and the Ministry file, agreed with the conclusion of the report that

``The applicant has not produced relevant and cogent evidence pointing to a likely miscarriage of justice, such that it is appropriate to either grant a free pardon or to refer the question of his convictions to the Court of Appeal.''

So Mr Barlow's section 406 application was dismissed.

In Thomas v The Queen [1980] AC 125, 136, Lord Edmund Davies, giving the judgment of the Board, held that, where the Governor-General had referred a point to the Court of Appeal under section 406(b), the Court of Appeal's opinion on the point could not be made the subject of an appeal to the Privy Council:

``The opinion [the Court of Appeal] expressed impinged upon no legal right of the defendant, nor did it place any fetter upon the exercise by the Governor-General of the royal prerogative of mercy.''

It follows that the Governor-General's dismissal of Mr Barlow's application could not have been the subject of any appeal. The Crown has submitted that Mr Barlow's present application for leave to appeal to the Board is, in substance although not in form, an attempt to reverse the Governor-General's decision to dismiss his section 406 prerogative of mercy application and, accordingly, that the Board has no jurisdiction to entertain the application.

Bearing in mind the potential constitutional significance of this jurisdiction objection to Mr Barlow's leave application to the Board, the Committee of three that heard the application directed that it be adjourned to come on before a Committee of five on the footing that, if leave were granted, the hearing of the appeal would immediately follow. This judgment of the Board is given after the hearing of Mr Barlow's adjourned application for leave to appeal against the Court of Appeal's 1996 dismissal of his appeal against conviction.

It is convenient for their Lordships to deal first with the jurisdiction issue.

The jurisdiction issue

Their Lordships have no doubt that the Privy Council does have jurisdiction to entertain an appeal by Mr Barlow against the 1996 dismissal by the Court of Appeal of his appeal against conviction. Section 42 of the Supreme Court Act 2003 put an end to appeals to the Privy Council ``from or in respect of any ... criminal decision of a New Zealand court made after 31 December 2003...'' and section 49 provided that, as from 1 January 2004, the Imperial enactments under which appeals from New Zealand courts to the Privy Council had been brought should ``cease to have effect as part of the law of New Zealand''. But section 52(1)(b) said that applications to the Privy Council for leave to appeal against a decision of a New Zealand court made before 1 January 2004 ``must be determined as if sections 42 and 49 had not been enacted''. So the jurisdiction of the Privy Council to deal with Mr Barlow's application for leave to appeal against the 1996 Court of Appeal decision was preserved.

It is, of course, correct that an examination by the Judicial Committee of the question whether, in the light of the new evidence on which he relies, Mr Barlow's appeal against his conviction should be allowed ultimately raises very much the same question as must have been addressed by the Ministry officials when preparing their report to the Governor-General and by Dr Fisher QC when reviewing that report. Their Lordships would also accept that it is substantially the same question as must have been addressed by the Governor-General in deciding how to deal with Mr Barlow's application to him. But these coincidences of subject matter do not, in their Lordships' opinion, go to jurisdiction. While they may be relevant to how the Board should exercise the jurisdiction preserved for it by the 2003 Act, they cannot negate that jurisdiction. Moreover, if their Lordships were to conclude that the new evidence did indeed show that there had been a miscarriage of justice, neither the opinion of Dr Fisher, nor the report of the Ministry, nor even the Governor-General's decision based on that opinion and report could justify the Board withholding the remedy for that miscarriage to which Mr Barlow would otherwise be entitled.

The Crown has also argued that, since it is not suggested that, on the evidence as it stood when the Court of Appeal dismissed Mr Barlow's appeal against conviction in 1996, any error can be discerned in the Court of Appeal's dismissal of his appeal, ``no justiciable issue arises engaging the powers of the senior appellate court in either jurisdiction'', and, therefore, that ``no further appeal can lie'' (para 73 of the Crown Case as to Jurisdiction). Walker v The Queen [1994] 2 AC 36, an appeal to the Privy Council from Jamaica in which the Board dismissed the appeal for want of jurisdiction, is relied on in support of this proposition. Walker was a case in which the appeal related to the imposition of the mandatory death penalty. The appellants had been sentenced to death for murder. They had appealed against conviction but their appeals had been dismissed. They had not appealed against sentence, and they could not have done so since the death sentence was mandatory. Their appeal to the Privy Council was based on the long delay to which they had been subjected while awaiting execution, a delay which, they contended, would render their execution unconstitutional. In these circumstances, the appeals being neither appeals against conviction nor appeals against sentence, the Board held that, as an appellate tribunal, it lacked jurisdiction to deal with what was a new issue, namely, the constitutionality of their execution after the long delay. The reasoning in Walker is of no assistance in the present case. The new evidence relied on by Mr Barlow undermines, it is submitted, prosecution evidence that had been placed before the jury and, in the circumstances, his conviction should be quashed. Mr Barlow directly challenges his conviction and the dismissal by the Court of Appeal of his appeal against conviction.

Fresh evidence, which is said to show that there has been a miscarriage of justice and which emerges after the trial and an unsuccessful first appeal, can be the basis of an appeal to the Board. None of the authorities referred to by Mr Pike, counsel for the Crown before their Lordships, is inconsistent with that proposition. Neither Thomas v R [1980] AC 125 nor Walker v R [1994] 2 AC 36 was a case in which the appeal sought to be brought before the Privy Council was an appeal against the dismissal by the Court of Appeal of an appeal against conviction or against sentence. Moreover, cases such as Pitman v The State [2008] UKPC 16 show quite clearly that the...

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