Rasul v Regina (Criminal Appeal No. 324 of 1953) [1953] EACA 8 (1 January 1953)

## APPELLATE CRIMINAL

## Before HEARNE, C. J. and RUDD, J.

## GHULAM RASUL, Appellant

## REGINA, Respondent Criminal Appeal No. 324 of 1953

Criminal procedure and practice—Criminal Procedure Code, section 350— Petition of Appeal-Advocate addressing letter to the Registrar conveying intention of arguing grounds of appeal not raised in petition—Alleged practice-Whether competent-Motion by appellant to amend petition by addition of further grounds of appeal-Discretion of Appellate Court-Circumstances which may move Court to exercise or refuse discretion.

The appellant was convicted of arson and other offences and filed an appeal on the same day. Some three months later, the appellant's advocate, who was not his advocate at the trial, addressed a letter to the Registrar containing a proposal to argue further grounds, in addition to or alternative to those stated in the petition of appeal. At the hearing of the appeal, the advocate submitted that his letter was in accord with a long-continued practice. The Attorney-General having received a copy of the letter replied that he proposed to object, whereupon the appellant's advocate filed a motion praying for an order to amend the petition of appeal "by the addition thereto of further grounds of appeal". The Crown opposed the application.

Held $(31-8-53)$ .—(1) An advocate cannot add to the grounds of appeal or, in effect, file a second petition, containing fresh grounds of appeal, three months after conviction by the<br>simple expedient of conveying his proposed intention to do so to the Registrar. If any<br>such practice was condoned, it must cease for

(2) When a petition of appeal under section 350 of the Criminal Procedure Code<br>has been filed and the Attorney-General has been furnished with a copy of the grounds of appeal under section 353, the advocate for the appellant is entitled to argue those grounds and no other grounds.

(3) Section 350 of the Code contemplates only one petition of appeal. If it is desired to raise at the hearing of the appeal, grounds other than those contained in the petition of appeal it becomes necessary by motion to move the court to allow amendment of the petition by the inclusion of further grounds.

(4) The amendment is at the discretion of the court. The motion, if filed long after the time limited for appeal has expired, or if the additional grounds relate only to questions of fact especially questions of fact not raised at the trial, may be disallowed.

In the special circumstances amendment allowed.

Case cited: Gray v. R., (1906) 2 E. A. L. R. 40.

O'Brien Kelly for appellant.

Bechgaard, Crown Counsel, for Crown.

RULING.—The first appellant was convicted on three counts of offences contra sections 327 (a) 394 and 308/390 respectively of the Penal Code on 11th May, 1953, and an appeal was filed by his advocate on the same day. On 7th August, 1953, a letter was addressed to the Registrar by the appellant's advocate, who was not his advocate at the trial, in which he stated that it was proposed to argue "further grounds in addition to or alternative to those stated" in the petition that had been filed on 11th May, 1953. We were informed at the

hearing of a motion which will be referred to hereafter, that the advocate for the appellant adopted "the usual practice". If it has been the practice in the past, it must, in our opinion, cease forthwith. An advocate cannot add to the grounds of appeal or in effect file a second petition containing fresh grounds of appeal, three months after conviction, by the simple expedient of conveying his proposed intention to do so to the Registrar. The advocate who was appearing for the Attorney-General and to whom a copy of the letter of 7th August, 1953, was sent, wrote to the appellant's advocate stating that he would object to any attempt being made to argue "further and additional grounds of appeal". The appellant's advocate then filed a motion asking for an order that the petition of appeal be amended "by the addition thereto of further grounds of appeal" which he set out. In the case of Gray v. Rex. (1906) 2 E. A. L. R. 40, Barth, J. ruled that an appellant was bound by the grounds of appeal filed in the original memorandum (petition) and that a statement in the petition of the "the following among other grounds" did not permit the appellant to raise other grounds at the hearing of the appeal. With respect we are in entire agreement with the ruling in $Gray$ v. Rex. When a petition of appeal has been filed and the Attorney-General has been furnished with a copy of the grounds of appeal under section 353 Criminal Procedure Code, the advocate for the appellant is entitled to argue those grounds and no other grounds. If it is desired to raise at the hearing of the appeal grounds other than those contained in the petition of appeal (the Code contemplates only one petition of appeal), it will become necessary to move this Court to allow amendment of the petition by the inclusion of further grounds and the motion, within the discretion of the court, may or may not be allowed. The motion may well be refused for instance if it is filed long after the time limited for appeal has expired, or if the additional grounds relate only to question of fact, especially questions of fact not raised at the trial, or for other reasons. In all the circumstances which were brought to our notice we decided to allow the motion in this case.