Court formalises the meaning of 'no point of principle'

The Court of Appeal has now formalised the status of the 'no point of principle' (NPP) catchword. Practice Note 8 of 2011 states:

The criminal appeal reforms currently being implemented by the Court of Appeal are designed to promote the efficient disposition of criminal appeals and to maximise the effective utilisation of judicial resources. To further these objectives, the Court wishes to discourage unnecessary citation of prior decisions of the Court.

The following practice will be adopted with effect immediately. When a bench of the Court considers that its reasons for judgment in a criminal appeal contain no new point of principle, the catchwords on the cover sheet will include the words ‘No point of principle’.

A judgment thus classified may not be cited in a subsequent appeal without the leave of the bench hearing that appeal.

This practice note formalises the point the Court of Appeal has been making for most of this year, that there are some decisions which are just not that important and so practitioners shouldn't need to trawl through countless cases for rare statements of principle. It will be important to see how the profession reacts to this practice note. Will it be thought that a diligent and professional solicitor or barrister can simply ignore any case marked NPP and still fulfilling their obligation to stay up to date in the law? Will counsel appearing on a sentencing plea refer to cases marked NPP when attempting to ascertain current sentencing practices and thread the needle between the court's denunciation of raw sentencing statistics and the court's denunciation of direct case comparisons? And what process will the Court of Appeal apply when deciding whether a case raises no point of principle? As I've written previously, there have been at least two occasions where a case marked NPP or "without precedent" appears to develop the established law.

Despite these concerns, the practice note does constitute an important step in stemming the tide that threatens to overwhelm both the court and the profession, and it is to be hoped that it will be effective in that goal.

Lessons from non-precedential appeals

I've blogged previously about the Court of Appeal's innovative use of catchwords to declare that a case raises no point of principle (see here and here). Recently, Ashley and Weinberg JJA released another batch of decisions with the "no point of principle" catchword. One of them, however, arguably does raise a (minor) point of principle and so raises the question of how later courts should treat it. In Harper v R [2011] VSCA 314, the offender was a Thai national who attempted to smuggle over 100g of heroin into Australia, concealed in body cavities. During the sentencing remarks, the judge stated:

By resorting to internal concealment of the drugs, you made detection of the offence even more difficult. This is an aggravating feature of your crime.

Although there was no ground of specific error, Ashley JA at [22] took the time to comment that:

Counsel for the Crown did not submit today that this was a correct statement of principle. In my opinion, it was not. It is at the heart of the particular offence that detection of the drugs will be made as difficult as possible. So to say does not mean that what I regard as a manifestly excessive sentence is to be explained by the judge’s particular observation. Rather, I take the opportunity to indicate my opinion that the observation was unsound.

Bearing in mind what the Court said in Ciantar & Rose, should judges give any weight to this statement, or should they treat it as wholly irrelevant? Is there a difference between a case that raises "no point of principle" and one that is "without precedent value"? Indeed, if there is a later case where a judge again treats the manner of concealment as an aggravating factor for importation, would the court reprimand counsel for referring to Harper in an argument that this constituted specific error? These are a couple of questions that are thrown up when, despite declaring that a case raises no point of principle, the court makes statements on important general issues, such as whether or not something is an aggravating factor.