ALRAMADAN v DIRECTOR OF PUBLIC PROSECUTIONS [2008] NSWCCA 69 | Case summary

27 March 2008 ALRAMADAN v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) (NO. 2) Judgment 1 THE COURT: On 23 November 2007 the Court dismissed an appeal against conviction brought by the present applicant: Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322. The judgment and orders were entered in the Registry on the same day. On 6 December 2007, that is within 14 days of the judgment being entered, the applicant wrote to the Registrar asking that the matter be relisted. This letter was treated as an application to set aside or vary the order and thus invoked the power of the Court under r 50C(2) of the Criminal Appeal Rules (NSW). It is convenient to set that rule out in full: " Power to set aside or vary order 50C (1) The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order. (2) If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the order under subrule (1), as if the order had not been entered. (3) Within 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered. (4) The Court may not extend the time limited by subrule (2) or (3). (5) Nothing in this rule affects any other power of the Court to aside or vary an order." 2 This rule commenced on 7 September 2007 and, so far as the Court is aware, its operation has not previously been considered. Neither party suggested that r 50C(2) should not be applied in accordance with its terms. 3 As the Director noted, similar provisions were introduced into the Uniform Civil Procedure Rules (NSW) contemporaneously: see r 36.16(3A)-(3C). The Court was invited to note both the underlying reason for the rule (based upon entry of judgments in the electronic record of the Court) and the explanatory note which stated that the new rules would enable orders under the Criminal Appeal Act 1912 (NSW) "to be entered, and to enable them to be set aside and varied, in ways similar to those for judgments and orders under the Civil Procedure Act 2005": see Criminal Appeal Rules (Amendment No. 1) 2007; GG No 116, 7/09/07, p 6888. This invitation need not be accepted for present purposes. The note is expressed in broad terms which need to be considered in the light of the remarks of Dixon J in Grierson v The Queen (1938) 60 CLR 431 at 436, in a passage cited with approval in Elliott v The Queen; Blessington v The Queen [2007] HCA 51; 82 ALJR 82 at [7]. In addressing the effect of the Criminal Appeal Act, Dixon J stated at p 436: "The determination of an appeal is evidently definitive, and a conviction unappealed is equally final. No considerations controlling or affecting the conclusion to be deduced from these provisions are supplied by analogous civil proceedings." 4 It is sufficient for present purposes to apply r 50C(2) in its terms, so that the Court will have the same powers under the Criminal Appeal Act, taking into account relevant principles under the general law, as it has always had in relation to orders which have not been entered. 5 The entry or perfection of orders is well-established as a final limitation on the powers of this Court to re-open an appeal. As explained by Dawson and Gaudron J in Postiglione v The Queen (1997) 189 CLR 295 at 300: "If a final order was made perfecting the decision of the Court of Criminal Appeal on Postiglione's first application, the assumption of jurisdiction to entertain his second application and the ensuing appeal was contrary to the decision of this Court in Grierson v The King (1938) 60 CLR 431. It was held in that case that the Criminal Appeal Act 1912 (NSW) does not confer jurisdiction to re-open an appeal which has been heard on the merits and finally determined. A fortiori, in a case where what is involved is the hearing of a second appeal. Pantorno does not suggest otherwise. The view was expressed in Pantorno that an intermediate court of appeal can entertain an application to remedy a denial of procedural fairness whether or not its order has been perfected ( Pantorno v The Queen (1989) 166 CLR 466 at 474, per Mason CJ and Brennan J; at 484, per Deane, Toohey and Gaudron JJ)."

The same approach was accepted by McHugh J (at p 315) and by Gummow J (at p 327). 6 Where judgment has been given but the order has not been entered, the power to reconsider an appeal is not precluded. Nevertheless, the circumstances in which the Court will be persuaded to entertain further argument (and possibly further evidence) are quite limited. In Elliott and Blessington at [31]-[32], the High Court held that the criteria by which this Court should determine an application to re-open a proceeding, prior to judgment being entered, were those stated by Mason CJ in Autodesk Inc v Dyason (No. 2) [1993] HCA 6; 176 CLR 300 at 303: "What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases." 7 Applying those principles in the present case, it is necessary to identify some misapprehension of fact or law, not solely attributable to the applicant, which materially affected this Court's judgment in the appeal. 8 The basis of the present application was the availability of two further statements by witnesses for the accused, whose evidence was rejected at trial. The difficulty which the applicant faces is that the sole reason this material was not considered by the Court at the hearing of the appeal was that he did not put it before the Court. The difficulty he faces in satisfying the test adopted in Elliott and Blessington is immediately apparent. However, it is desirable to explain in a little more detail the relevance of the material on the case presented for the applicant. 9 The principal issue on the appeal was whether the trial judge had erred in rejecting evidence proposed to be called from Dr Alan Nicholls and Dr Bernadette White. Doctor Nicholls was an orthopaedic surgeon from whom it was proposed to adduce evidence with respect to the condition of the applicant's left leg and knee, resulting from an injury caused in a motor accident. The thrust of the evidence was that the applicant would have had great difficulty in climbing onto the examination table in his surgery and having sexual intercourse with the complainant, in the manner in which she described the events. This Court held on the appeal that his Honour was in error in rejecting such evidence but concluded that the error did not constitute a substantial miscarriage of justice because, had it been adduced, the evidence put before the trial judge by way of a written report would not have affected the outcome of the case. 10 The second witness whose evidence was rejected was Dr Bernadette White, an obstetrician and gynaecologist. The thrust of Dr White's proposed evidence was that although semen from the applicant were found on a "high vaginal swab" obtained from the complainant, that could occur otherwise than through "normal intercourse". Again, the Court held that the evidence was relevant and admissible but concluded that the material contained in a letter from Dr White would not have affected the outcome of the trial. 11 Although the Court was unanimous in identifying error and in applying the proviso with respect to the material from Dr Nicholls and Dr White which was before the trial judge (and this Court), Rothman J dissented on the ground that the oral evidence from those witnesses would not necessarily have been confined to or have been identical with their written reports: at [79]. In effect, the applicant now seeks to avail himself of the opportunity which would have been accorded to him by Rothman J but not by the majority to present more detailed and relevant evidence from the two experts. 12 Accepting that it was necessary to reopen the appeal to call further evidence, the applicant assayed that task, but without providing any explanation as to why such further, and arguably more persuasive, material had not been presented on the appeal. Senior counsel for the applicant properly accepted that his application must be confined to material relevant to the existing grounds of appeal. In substance, the applicant has sought to reopen the appeal so as to remedy a deficiency in the material presented at the hearing. That approach would appear to fall squarely within the impermissible purpose of seeking "by a backdoor method" to reargue an unsuccessful appeal. It cannot be justified on the criteria explained by Mason CJ in Autodesk (No. 2). 13 In the end, the present application was based upon the proposition that although this Court unanimously held that the evidence disclosed in the original reports of the experts sought to be called at trial was insufficiently persuasive or relevant to affect the outcome, the applicant was entitled to present more persuasive evidence than that presented at trial and on the appeal, and persuade this Court to reopen the appeal in order to consider that evidence. 14 As indicated above, this is a clear case of a reopening being proposed in order to enable the applicant to reargue the appeal. If the Court acted under some misapprehension as to the relevant facts at the hearing of the appeal, that was solely due to the manner in which the appellant ran his case. There was no suggestion, it should be added, that experienced counsel who ran the appeal did so otherwise than competently. Nor was it suggested that the Court in some way obstructed the presentation of the appeal. 15 It was for these reasons that on the hearing of the application on 25 March 2008, the Court ordered that the application be dismissed. **********

ALRAMADAN v DIRECTOR OF PUBLIC PROSECUTIONS

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