Solicitors:
Unrepresented (Applicant)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2005/14700
Decision under appeal Court or tribunal: Court of Criminal Appeal
Jurisdiction: Criminal
Date of Decision: 3 August 2015
Before: Hoeben CJ at CL, Davies & Hamill JJ
File Number(s): 2005/14700
[2]
Judgment OF THE COURT
This Court gave judgment on 3 August 2015 in relation to a number of applications made by the Applicant: Application of Malcolm Potier [2015] NSWCCA 199. All the applications were dismissed.
On 17 August 2015 the Applicant applied under r 50C of the Criminal Appeal Rules to re-open the judgment of the Court. The basis of the application was said to be:
(a) Mistake of law over the Court's inherent jurisdiction to hear and
consider other related matters before the Supreme Court of New South Wales.
(b) Mistake of fact over the status of the Applicant's parole consideration;
(c) Mistake of law over the rejection of the Applicant's bail application;
(d) Mistake of law in making findings and/or conclusions on ongoing matters currently before the Court giving rise to potential unreasonable prejudice.
The Applicant provided what were described as short submissions together with copies of correspondence with the Registrar of the Court. The Applicant concluded those submissions by saying that should the application be accepted the Applicant be permitted a reasonable opportunity to file a comprehensive argument. Because of the nature of the jurisdiction under r 50C and the material already provided by the Applicant the Court declined to permit any further submissions.
Bruce Edward Gall v R [2015] NSWCCA 249 | Case summary | Zoe
Rule 50C provides:
50C Power to set aside or vary order
(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 sub-rule (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 sub-rule (2) or (3).
(5) Nothing in this rule affects any other power of the Court to set aside or vary an order.
The jurisdiction under r 50C has recently been considered in two judgments of the Court. In Bruce Edward Gall v R (No 2) [2015] NSWCCA 152 Hoeben CJ at CL (with whom R A Hulme and Davies JJ agreed) considered a number of cases relevant to the rule and concluded:
[28] By reference to those decided cases, Rule 50C is of limited application with an emphasis on correcting obvious mistakes in language used or results that did not reflect the intention of the Court. Rule 50C has been used:
To correct a slip, being the omission of words to clarify an infelicitous or ambiguous expression. When doing so it was not altering the basis or rationale of the judgment as it was originally intended (R v Jones; R v Hili (No 2) [2010] NSW CCA 195; 79 NSWLR 143 at [49].
To overcome agreed difficulties where there was a gap of three months from the conclusion of the notional sentence on a count and the commencement of the notional sentence on the next count and it was appropriate to remedy that slip (R v AB (No 2).
When the Court had not considered a ground of appeal (Baghdadi v R (No 2) [2012] NSWCCA 77).
To effect the orders proposed in the reasons for judgment with the correct calculation of the aggregate head sentence (Akkawi, Mark v R; Akkawi, Paul v R (No 2) [2013] NSWCCA 72).
To restructure sentences to achieve an aggregate non-parole period which reflected the Court's intention (KW v R (No 2) [2013] NSWCCA 84).
To correct some minor accidental slips which included the numbering of the orders and some minor changes of wording, neither of which altered the substance of the reasons or the orders made (R v Ly (No 2) [2014] NSWCCA 91).
In Miller v R [2015] NSWCCA 205 Adams J (with whom Hoeben CJ at CL and Hidden J agreed) said:
[39] Rule 50C does not deal with the scope of the Court's jurisdiction to reconsider and correct either its orders or its reasoning. It merely deals with the time frame in which such a jurisdiction may be exercised. It does not, in terms, deal with the possibility of reconsideration or variation after the time limits have expired, but reserves the general jurisdiction of the Court in this respect by sub rule (4). In the nature of things, the character and extent of the jurisdiction cannot be the subject of bright line distinctions: it is a matter of fact and degree. The fundamental rule is that there is no jurisdiction to rehear an appeal once determined, even before actual or constructive entry of judgment, though in certain circumstances particular issues might justify reconsideration, as where there is a misapprehension of fact or law, or a ground of appeal, necessary to final disposal of the appeal, has been overlooked or mistakenly not determined or there has been a denial of procedural fairness in the hearing of the appeal. It is not possible to give an exhaustive list of examples but it is clear that there is no jurisdiction to revisit the orders or reasons where the contended misapprehension is merely an assertion that a conclusion made following consideration of the matter by the Court is wrong, let alone where the applicant seeks, in effect, to argue a new ground of appeal. In short, the unsuccessful appellant cannot, in the language of Mason CJ in Autodesk Inc v Dyason (No. 2) [1993] HCA 6; (1993) 176 CLR 300 (quoted above) have a backdoor appeal.
[40] After judgment has been entered, nothing of substance can be changed, though this still permits changes to orders or reasons where the language of either mistakenly does not reflect the order contemplated by the reasons or the sense of the reasons themselves. It must follow that no second appeal can be had on the merits, still less can a subsequent Court of Criminal Appeal hear such an appeal from an earlier decision of the Court. The mere contention that some error of law or misapprehension of fact has affected the decision is immaterial. If what is sought is, in effect, a rehearing on the merits of a decided appeal by this Court, the only recourse is by way of further appeal, if special leave is granted.
[41] As a useful guide, any application before the orders are perfected which requires more than a summary consideration and determination of the impugned judgment or order is likely to be outside the scope of the rule.
In the light of those principles we now deal with the four matters raised by the Applicant.
[3]
(a) Mistake of law over the Court's inherent jurisdiction
The mistake of law is said to arise because the Applicant (as he submitted) has always maintained that the Court of Criminal Appeal had jurisdiction to hear all matters. He submitted that the Court, being a division of the Supreme Court of NSW, has power and authority to consider all matters before it.
The matter was considered at [44] of the principal decision. The Applicant's submission is misconceived. No error is demonstrated.
[4]
(b) Mistake of fact over the status of the Applicant's parole consideration
The Applicant submitted that the Court made a mistake of fact in finding that it was the Applicant who had sought deferment of consideration for parole.
In the principal judgment the Court made an observation in passing at [55] that the Applicant had changed his approach from earlier persuading the Parole Board to adjourn consideration of his parole to asking for the hearing of the Parole Board to be brought forward. The evidence supported that observation. It was not a material fact but a background fact only in relation to determining the power of this court to issue a criminal justice stay warrant. Whether it is correct or not does not alter the determination made. There is no basis for the assertion of error.
[5]
(c) Mistake of law over the rejection of the Applicant's bail application
The Applicant submitted that the Court acknowledged that any bail application to be considered would be after representations from the Crown and no such representations were before the Court. The Applicant submitted that if that was correct the Court could not decide the Applicant's bail application, yet it did so.
The transcript of the hearing before this Court included the following:
HOEBEN CJ at CL: There are also some documents relating to a bail application. Now both of those matters require, Mr Potier, representation by the Crown. The receipt of those documents by the Court was far too late to arrange for such representation.
APPELLANT: I understand entirely, your Honour, of course.
HOEBEN CJ at CL: We therefore will not be dealing with either of those matters today and I would ask you, given your submissions, not to raise those matters. What is likely to happen in relation to the 50C application is that it will be dealt with by the same Court, the same Bench that dealt with the appeal, and that Bench will also deal with any bail application.
APPELLANT: Yes, your Honour. If it is appropriate, may I have your leave briefly, if it is necessary, for to address the reasons as to why a bail application may or may not be relevant to the matters before the Court? I hope it won't, but perhaps I could just say I might need to raise that, with your consent, at later time.
HOEBEN CJ at CL: Well, there is no representation by the Crown.
APPELLANT: No, I understand that entirely.
HOEBEN CJ at CL: And we can't deal with that application today.
APPELLANT: Yes, your Honour.
In the absence of any representation from the Crown the bail application could not be dealt with. The documents lodged by the Applicant for bail had been received too late for such representation to be arranged. The Applicant accepted that that was so and that the bail application could not be dealt with.
There was no error in the Court refusing the bail application.
(d) Mistake of law in making findings and/or conclusions on ongoing matters
The Applicant's submission, in substance, was that this Court should not have considered the likely success of the Applicant's r 50C application in respect of the judgment of this Court in Potier v R [2015] NSWCCA 130. To do so, the Applicant submitted, was a misunderstanding of law and created a future prejudice for the Applicant in respect of that other r 50C application.
In the principal judgment this Court made it clear at [56] that it had jurisdiction under s 151 of the Migration Act 1958 (Cth) to issue a warrant referred to in that section. The Court had a discretion whether to issue such a warrant. One consideration informing the discretion was whether there was likely to be any alteration to the judgment of this Court given on 3 June 2015. For reasons relying on Bruce Edward Gall v R (No 2) the Court's opinion was that the judgment of 3 June 2015 was unlikely to be altered at least in a way that would result in a different outcome. That was a significant factor to be considered from the point of view of the Court's discretion whether a warrant should be issued under s 151. No error is demonstrated in the approach that the Court took.
[6]
Conclusion
None of the matters raised in this r 50C application is a matter appropriate to be dealt with under r 50C. The application attempts to re-argue matters already considered in the principal judgment. The application should be refused.
[7]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 14 September 2015