What is the 'it'?

Open warfare has broken out* over what to call the New South Wales Court of Criminal Appeal.

In the red corner, we have: “Court of Criminal Appeal of New South Wales”.

In the blue corner, let’s hear it for: “Court of Criminal Appeal of the Supreme Court of New South Wales”.

They both seem plausible. Is one of them “correct”? Or, even, “more correct”?

On the face of it, this feels like it should be what we might call a “no brainer”.

Not so fast.

The question has resonances of past battles relating to the South Australian equivalent: depending on where you looked, the same judgment might have been described as having come from “the Full Court of the Supreme Court of South Australia” or from “the Court of Criminal Appeal of South Australia”. Even the Supreme Court itself – not to mention the editors of the South Australian State Reports – seemed to struggle with what to call it. The debate was even played out within the pages of High Court judgments. The cleanest workaround, I always thought, was to go long, calling it “the Full Court of the Supreme Court of South Australia, sitting as the Court of Criminal Appeal”. That might have been a bit wordy, but it was also demonstrably correct.

Fortunately, South Australia has resolved its own problem, by the creation of a Court of Appeal.

New South Wales already has a Court of Appeal, so why has the same problem arisen there?

I’m glad you asked. Unlike South Australia and Victoria (which also has a Court of Appeal), New South Wales also has something that is called a “Court of Criminal Appeal”. What is that something? And, more importantly – for my purposes, anyway – how should it be described?

Maybe the underlying legislation sheds some light.

Section 3(1) of the Criminal Appeal Act starts off by saying:

“The Supreme Court for the purposes of this Act shall be the Court of Criminal Appeal”.

That strikes me as one of the more ambiguous legislative provisions I could ever hope (not) to see. It might be interpreted as saying that the Supreme Court is the Court of Criminal Appeal. On that reading, “of the Supreme Court” would appear to be at best redundant and at worst wrong.

But which is the horse and which is the cart? Might it not also simply be clarifying that it is the Supreme Court, as opposed to another court, that is to be the “Court of Criminal Appeal”? In other words, it might not be a naming provision at all.

The Dictionary to the Supreme Court (Criminal Appeal) Rules defines “Court” as “the Court of Criminal Appeal”. That just begs the question.

Nor is the typography adopted by the Court itself on its published judgments of much assistance:

“Court of Criminal Appeal
Supreme Court

New South Wales”

Note the absence of the words “of the”. A cynic might speculate that someone has deliberately avoided answering the question. But there are no cynics here. More likely the question was never anticipated.

Can we do a “compare and contrast” with the Court of Appeal itself?

The Court of Appeal, unlike the Court of Criminal Appeal, is a designated “division” of the Supreme Court. But does that make it “the Court of Appeal of New South Wales”, or “the Court of Appeal of the Supreme Court of New South Wales”? If the Court of Appeal is (forget the “if”; it is) a division of the Supreme Court, I have sympathy for the view that it should be called the Court of Appeal of the Supreme Court.

But sympathy will only get us so far. Replacing sympathy with analogy, how are the other “divisions” of the Supreme Court described? I have never seen the Common Law Division or the Equity Division referred to as the Common Law or Equity Division “of New South Wales”. They always seem to have “of the Supreme Court” appended; that is probably out of necessity, otherwise how would anyone know where to find them? In the interests of consistency across the different divisions of the Court, that seems to me to suggest that the Court of Appeal should be called the Court of Appeal of the Supreme Court of New South Wales.

I’m not sure where this leaves the Court of Criminal Appeal. The Court of Criminal Appeal, unlike the Court of Appeal, is not a division of the Supreme Court. This might mean that the Court of Criminal Appeal is the Supreme Court – as the Act almost says – as opposed to being a part of the Supreme Court, and therefore that “the Court of Criminal Appeal of the Supreme Court of New South Wales” is, by definition, wrong. On the other hand, though, the legislation itself does not convince me that the Court of Criminal Appeal actually exists as an entity, as opposed to merely floating in the ether as a name applied to certain cases heard by the Supreme Court – in which case it feels kind of suspect to name it as if it was its own thing.

In this way, I find myself being drawn back to my preferred solution to the South Australian problem, viz: “the Supreme Court of New South Wales, sitting as the Court of Criminal Appeal”. But I don’t recall ever having seen that used in judgments or law reports in New South Wales. And I’m not sure how it would square with the legislative provisions.

Sheesh.

I will let you in on a secret. Whenever an associate asks me how the Court of Criminal Appeal (or the Court of Appeal, for that matter) should be described in a judgment, my response tends to be along the lines of, You should probably call it whatever your judge wants to call it. That might sound like a textbook act of diplomacy. In reality, though, it is nothing more than a cop-out: this is not an argument I want to have with a High Court judge.

My cowardice has inevitably given rise to a variety of approaches being taken in High Court judgments over the years. I guess I will just have to live with that. (It also suggests, perhaps, that the answer is less than clear-cut.) At the end of the day, though, whichever of the two descriptions is used, nobody will be in any doubt which court is being referred to. And that is all that really matters. Anything else is window dressing. Isn’t it?

Nevertheless, it would be nice to have an answer.

* It absolutely has not.