Dickson v R

Ground 7 of the Applicant's Conviction Appeal

1. Part of the applicant's complaint, and one of the bases upon which he submits further grounds can be heard, deals with the asserted failure of the Court to deal in its 2016 judgment with a ground added with leave during the hearing of the original proceedings, in February 2016. It is necessary to give some background relevant to ground 7.
2. Originally, the applicant advanced six grounds of appeal against conviction; he sought leave on the second day of the hearing, 12 February 2016, to add a seventh ground. Leave was granted, with the applicant required to file a notice setting out the proposed seventh ground, within a specified time. A draft notice was handed up in Court and marked for identification.
3. Within the time allowed following completion of the hearing, the applicant filed the notice of the seventh ground in the Registry. The statement of his additional ground did not reach the judges of the Court, and the judgment was written without specific reference to it.
4. The absence of specific reference, argues the applicant (in summary), means that his appeal was not finalised and the Court can hear ground 7, together with the numerous fresh grounds sought to be advanced.

Discussion

1. Having considered the matters raised by the applicant in his written submissions I accept the submissions of the Crown that this Court has no jurisdiction to hear and determine ground 7, or any further grounds of appeal. I would dismiss the applicant's Notice of Motion.
2. The New South Wales Court of Criminal Appeal is a superior court of record. Its jurisdiction is wholly statutory: Grierson v The King (1938) 60 CLR 431 at 435; [1938] HCA 45; Elliott v The Queen [2007] HCA 51; (2007) 82 ALJR 82 at [7].
3. The orders made by the Court in 2016 in Dickson v R were formally recorded, and thus can be regarded as "perfected". Orders once perfected can rarely be reconsidered, not least because of the principal of finality. That principle was considered by the High Court in Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34.
4. In Burrell v R [2007] NSWCCA 65 the New South Wales Court of Criminal Appeal had set out the "facts" of the case, drawn from an erroneous account of them prepared by those acting for Mr Burrell. That error was drawn to the attention of the Court on the day after judgment was delivered.
5. In the subsequent decision of R v Burrell [2007] NSWCCA 79 the Court (McClellan CJ at CL, Sully and James JJ) concluded that it had not finally determined the appeal because its previous orders were made on the basis of erroneous information. The Court purported to reconsider the case having regard to the correct facts as established by the evidence, confirming its previous orders.
6. The High Court struck that process down, saying, at [19] - [21] amongst other things: The end of a court's powers to consider and determine a controversy cannot depend upon whether one party asserts that the court has made some error in the conclusion it has reached. If allegation of error in the court's orders were the criterion, there would never be an end to some disputes. And because one party's assertion of error cannot provide a sufficient criterion, a court's belief that it has recognised its own mistake can provide no useful criterion. Such a belief could provide no useful criterion because, in the end, the accuracy of the belief would have to be tested against the arguments of the parties. It follows therefore that no matter whether it is a party that alleges error, or it is the court itself which believes that it recognises its own error, a decision that an error had been made could be reached only after giving all parties an opportunity to be heard. And it is this reargument of issues that would constitute the departure from the principle of finality. Identifying the formal recording of the order of a superior court of record as the point at which that court's power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court. The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded. [footnotes omitted]
7. The High Court continued (at [24]), In Grierson v The King, this Court held that the jurisdiction of the Court of Criminal Appeal of New South Wales "is statutory, and the court has no further authority to set aside a conviction upon indictment than the statute confers". More particularly, this Court held that the Court of Criminal Appeal had no jurisdiction to reopen an appeal which it had heard upon the merits and finally determined. Grierson has been followed in this Court on a number of occasions, most recently in Elliott v The Queen. [footnotes omitted]
8. Rule 50C of the Criminal Appeal Rules was introduced after the decisions of this Court in Burrell, but before the High Court determined Burrell v The Queen. It provides: 50C Power to set aside or vary order (cf UCPR rule 36.16) (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. (1A) An application to set aside or vary an order may only be made with the leave of the Court. (1B) The Court may determine both whether to grant leave and the application on the papers. (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 set aside or vary an order (including any power to correct clerical mistakes or errors arising from accidental slips or omissions).
9. Mr Dickson purports to rely upon r 25A(1) of the Rules, but that rule applies to adding grounds where an appeal has not yet been determined. It provides, Where the appellant intends to rely on grounds of appeal not stated in his notice of appeal or application for leave to appeal, he shall, within 28 days after giving his notice of appeal, or of application for leave to appeal send his notice of additional grounds of appeal to the Registrar.
10. Rule 25A(1) can have no application here, as it relates to a current notice of appeal or notice of intention to seek leave to appeal, relevant to an appeal or application yet to be heard by the Court. There is no current notice in the present matter, it having expired with the finalisation of the 2016 proceedings. This rule is not further considered.
11. Insofar as any rule may have application, it would be r 50C.
12. The operation of r 50C is confined, presumably so as not to unduly diminish the principle of finality. It can only be utilised to set aside or vary an order if,
13. the application to set aside or vary is made prior to the entry of the orders into the Court's computer system; or
14. within 14 days of the entry of the orders into the Court's computer system.
15. Extensions of time with respect to those requirements are specifically prohibited by sub-rule (4).
16. The confined operation of r 50C has been considered in Application of Malcolm Potier (No 3) [2015] NSWCCA 306, where the Court (Ward and Simpson JJA, Wilson J) said at [7]: Put simply, r 50C does not confer jurisdiction on this Court to re-hear the merits of an appeal once it has been determined. Rather, it enables the Court to reconsider and correct its orders to rectify obvious mistakes and correctly to reflect its intention at the time of making the decision in question. In Miller v R, Adams J (with whom Hoeben CJ at CL and Hidden J agreed) noted that there is no jurisdiction under r 50C to re-visit 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 (at [39]).
17. That approach is consistent with the approach taken by the High Court in Burrell, as confirmed in Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10.
18. Rule 50C was considered at some length relatively recently, in Langelaar v R (No 2) [2017] NSWCCA 228. At [18] the Court said, A number of decisions of this Court have sought to make clear that the rule does not confer an unbounded jurisdiction to rehear an appeal on its merits: Application of Malcolm Potier (No 3) [2015] NSWCCA 306 at [5] - [7]; Bruce Edward Gall v R (No 2) [2015] NSWCCA 152 at [13] - [28] (by Hoeben CJ at CL); Miller v R (No 2) [2016] NSWCCA 158 at [39] - [53]. These citations do not comprehensively deal with the jurisprudence in this Court but adequately emphasise the narrowness of the gateway provided by rule 50C.
19. After referring at [19] to what was said at [7] in Application of Malcolm Poitier (No 3), which is extracted above at [41], the Court continued at [20], As the Court pointed out in Miller (No 2) at [43], the Explanatory Note to rule 50C states that the power the rule confers is "similar" to the power conferred on the Supreme Court in civil cases by UCPR r 36.16(3A). This empowers the Court to exercise the power identified in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6, even after the orders have been entered, provided the jurisdiction is invoked with the degree of promptitude specified in the rule, i.e. 14 days.
20. It is clear that r 50C does not operate to give the Court an open-ended power to reconsider or revisit appeals previously determined by it. As was said in Miller v R [2015] NSWCCA 205, at [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.
21. Setting aside for the moment the complaint concerning ground 7, none of the extensive grounds listed by the applicant in his Notice of Motion are based upon some "slip" or misstatement of evidence or law that can be corrected without controversy. Although there is a great deal of repetition of matters addressed by the Court in determining the grounds advanced in support of the 2016 appeal, the grounds of appeal against conviction that the applicant seeks permission to "send" to the Court all raise complaints impugning the conduct of the applicant's trial before the Supreme Court. The applicant complains of bias and errors on the part of the trial judge, wrongful conduct on the part of the Crown, the unsatisfactory nature of his conviction and, overarching all, of a miscarriage of justice.
22. This is simply a "backdoor" means of seeking to re-agitate the conviction appeal already heard and dismissed by this Court: Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69 at [12].
23. As to the ground 7 issue, although the ground was not addressed in specific terms in the 2016 judgment, it was fully addressed when ground 2 was considered. As senior counsel for the applicant said at the 2016 hearing of the appeal, ground 2 encompassed the arguments raised orally by the applicant that were ultimately relied upon as directed to the proposed ground 7. In considering, determining and ultimately dismissing ground 2, the arguments advanced in support of ground 7 were also considered and determined.
24. In these circumstances the failure of this Court to specifically refer to ground 7 in terms does not equate to a failure to deal with the substance of the complaint which was thereby advanced. Nor can that operate as a mechanism by which the applicant can argue for a further appeal to be heard. The orders which were made dismissing the conviction appeal have given effect to the Court's conclusion that the arguments addressed to ground 7 (as it was ultimately formulated) could not result in the appeal being upheld.
25. The thirteen grounds outlined in the applicant's Notice of Motion which seek to call into question the sentence imposed at first instance (in R v Anthony James Dickson (No 18) [2015] NSWSC 268) are all matters that could have been pressed by Mr Dickson had he pursued his application for leave to appeal against sentence. All argue for errors on the part of the trial judge which wrongly infected the sentence imposed upon him. Events have overtaken the judgment of the Supreme Court, in that this Court quashed the original sentence, and moved to resentence.
26. A similar application was considered by the Victorian Court of Appeal in Haidari v The Queen [2014] VSCA 91 where, following the determination of a Crown appeal against inadequacy of sentence, Mr Haidari sought to challenge his sentence. At [53] the Court held, However, the applicant's position may be even worse than that. It could be said that this case falls within the principles laid down by the High Court in Port of Melbourne Authority v Anshun Pty Ltd. The applicant had a perfect opportunity to argue that his sentence was manifestly excessive when he appeared as respondent to the Director's appeal. He did not avail himself of that opportunity. There is a strong public interest in ensuring that all matters that are relevant to a particular dispute are dealt with in the one proceeding, rather than being fragmented. The applicant's sentence was before this Court on the Director's appeal. That was the time for him to put whatever submission he wished to advance in relation to his sentence before the Court for its consideration.
27. Mr Dickson's situation is even more difficult than that of the applicant in Haidari as the sentencing decision of the Supreme Court against which he seeks to appeal has been quashed. Mr Dickson is now serving the sentence imposed upon him by this Court in the 2016 judgment. For the Court to entertain an appeal against sentence from the applicant would be to require it to sit as an appeal court considering its own decision: DAO (No 2) [2014] NSWCCA 126 at [56].

Conclusion

1. This Court has heard and determined Mr Dickson's conviction appeal, and heard and determined the Crown's inadequacy appeal, proceeding to resentence. The proceedings have been finalised, and are at an end. The orders then made are "beyond recall" by this Court: Bailey v Marinoff (1971) 125 CLR 529 at 530; [1971] HCA 49; Achurch v The Queen at [17].
2. There is no basis, statutory or otherwise, to grant the applicant's Motion. It should be dismissed.

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