[1961] 3 All ER 1101
Buadromo v R (No 2) [2011] NSWCCA 55
Burrell v The Queen [2008] HCA 34
(2008) 238 CLR 218
Cooley v The State of Western Australia [2005] WASCA 160
(2000) 201 CLR 226
Grierson v The King (1938) 60 CLR 431
Jones v The Queen [1989] HCA 16
Source
Original judgment source is linked above.
Catchwords
(1993) 176 CLR 300
Bastow v Bagley & Co. Limited (1961) 1 WLR 1494[1961] 3 All ER 1101
Buadromo v R (No 2) [2011] NSWCCA 55
Burrell v The Queen [2008] HCA 34(2008) 238 CLR 218
Cooley v The State of Western Australia [2005] WASCA 160(2000) 201 CLR 226
Grierson v The King (1938) 60 CLR 431
Jones v The Queen [1989] HCA 16(1989) 166 CLR 409(2013) A Crim R 483
Muldrock v The Queen [2011] HCA 39(2011) 244 CLR 120
Pantorno v The Queen [1989] HCA 18(1989) 166 CLR 466(1989) 38 A Crim R 258
PFC v R (No 2) [2014] NSWCCA 241
Postiglione v The Queen [1997] HCA 26(1997) 189 CLR 295(1997) 94 A Crim R 397
R v AB (No 2) [2011] NSWCCA 256
R v GreenR v Quinn [2011] NSWCCA 71
R v Gust [2000] NSWCCA 287
R v JonesR v Hili (No 2) [2010] NSWCCA 195(2010) NSWLR 143(2010) 242 FLR 64
R v Jones(2004) 60 NSWLR 454(2004) 146 A Crim R 475
R v Saxon (1998) 101 A Crim R 71
Texas Co (Australasia) Ltd v Federal Commissioner of Taxation [1940] HCA 9
Judgment (8 paragraphs)
[1]
Solicitors:
Self-represented (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2005/12846; 2007/12987
[2]
Judgment
HOEBEN CJ at CL: I agree with Adams J.
HIDDEN J: I agree with Adams J.
ADAMS J:
[3]
Introduction
This is an application made under r 50C of the Criminal Appeal Rules (NSW) concerning earlier judgments of this Court in respect of convictions of and sentences imposed on the applicant. On 21 March 2014 an appeal brought by the applicant against his convictions in 2007 and 2009 in the District Court and the sentences imposed on him in relation to those offences was dismissed: Miller v R [2014] NSWCCA 34. On 31 March 2014 the applicant applied under r 50C of the Criminal Appeal Rules to set aside the judgment of the Court of Criminal Appeal and reopen and redetermine the appeal. The applicant has also appealed from an additional conviction in and sentence imposed by the District Court for further offences of dishonesty in 2012. That appeal was heard on 11 September 2014 by other members of the Court, whose judgment is presently reserved. The applicant was refused bail in relation to that matter by Adamson J on 13 April 2014 and again by Davies J on 27 March 2014. The applicant's application under r 50C also seeks a review by this Court and reconsideration of these refusals to grant him bail. (He also applied for disqualification of all Justices of this Court from hearing and determining all his applications and appeals but this was not pressed when the application came on for hearing.)
[4]
Background
In June 2007 the applicant was convicted by a jury in the District Court on an indictment charging him with one count of obtaining financial advantage by deception and four counts of using a false instrument, respectively being offences under ss 178BA and 300(2) of the Crimes Act 1900 (NSW). These charges arose out of the circumstances surrounding the purchase of a thoroughbred racehorse and frauds allegedly committed upon a Mr Ivan Pagett and the ANZ Bank. The applicant was sentenced to an overall term of 4 years imprisonment commencing on 20 June 2007 with an effective non-parole period of 3 years. In August 2009 the applicant was convicted in the District Court (Knox DCJ, sitting alone) of two counts of obtaining a benefit by deception contrary s 178BA, three counts of obtaining a benefit by deception contrary to s 178BB and one count of using a false instrument contrary to s 300(2) of the Crimes Act. He was acquitted of one of the s 178BA charges and convicted on the remaining counts. This trial involved frauds allegedly committed upon a Mr Giovanni Caperelli. In respect of four of the counts he was sentenced to concurrent fixed terms of imprisonment for 3 years commencing on 11 December 2009 and, in respect of the remaining count (under s 178BA), an overall sentence of 4 years and 6 months commencing on 11 June 2010 with a non-parole period of 3 years commencing on the same day and expiring on 10 June 2013. In respect of the 2013 convictions he was sentenced to an overall term of 10 years from 9 June 2013, with a non-parole period of 6 years.
[5]
The nature of the applicant's case
In his written submissions in support of his application it is clear that the applicant's grounds are, essentially, that the judgment in the Court of Criminal Appeal which dismissed his appeals against his convictions and sentences was fundamentally flawed, exhibiting "manifest errors in the application of facts and applicable law that relevantly arises from case authority decided after the filing of the original grounds and submissions of appeal" and "that the reasons for judgment… contain significant misapplications and misinterpretations of the facts of the case and applicable law and other important omissions to assess facts relating to the grounds of appeal which have been ignored". The applicant then listed a number of alleged errors dealing with the treatment of various aspects of the evidence, exhibiting what the applicant contends was "specious reasoning designed by the court to avoid having to assess the contents of the [relevant] documents in the context of … [the] appeals and his complaint that he was not provided with them under obligations of pre-trial disclosure". He also submitted "that had the Court of Criminal Appeal approached its task correctly, it would have formed the view that the 3 Crown witnesses had no credibility or believability at all, the basis of which was clearly set out in the appeal grounds and submissions but never properly assessed". Further details are given as to alleged failures to scrutinise the evidence as to particular matters either sufficiently or at all, misapprehensions of the nature of the circumstantial evidence and errors in not receiving evidence suggested to be fresh.
The character of the case sought to be made on the application is sufficiently gathered from the following paragraphs in his written submissions -
"[2]. Both appeals were raised on all grounds and were dismissed in a written decision dated 21/3/14 by their Honours Justices Harrison SCJ, Johnson SCJ and Adamson SCJ which the appellant complains is unjustified in law and arises in circumstances that indicate the Court held erroneous views about the facts of the cases appealed and made significant errors and omissions in its assessment of the appeals.
[3]. The appellant is very aggrieved over deficient standards he submits have been applied by the Justices in the assessment of his grounds and submissions of appeal who dismissed the appeals through error and omission and seeks leave under rule 50C of the Criminal Appeal Rules (1952) N.S.W. to have them corrected.
[4]. It is sought to set aside the judgment and orders of the Court and have the appeals reopened and redetermined in relation to these errors and omissions in the principle ground of appeal (ground 1) that the Crown and investigating police Detective SC Ray Hetherington did not provide a fair trial to the appellant.
[5]. This concerned the mandatory pre-trial disclosure of crucial documentary evidence seized from the appellant by a Detective Ray Hetherington on 20 January, 2005 who investigated the offences, which was also known to the Crown.
[6]. The Court's reasons for its decision contain manifest errors in the application of facts and applicable law that relevantly arises from case authority decided after the filing of the original grounds and submissions of appeal.
[7]. Further submitted is that the reasons for judgment of the Court of Criminal Appeal contain significant misapplications and misinterpretations of the facts of the case and applicable law and other important omissions to assess facts relating to the grounds of appeal which have been ignored."
[6]
The scope of the rule
A useful starting point for considering the basic underlying principle governing reconsiderations of the present kind is Grierson v The King (1938) 60 CLR 431. The applicant's appeal against convictions and sentences at Quarter Sessions was dismissed by the Court of Criminal Appeal and his application for special leave to appeal refused by the High Court. Representations on his behalf to the relevant Minister for an enquiry under (what was then) s 475 of the Crimes Act were unsuccessful. Grierson then made a further application to the Court of Criminal Appeal for leave to appeal against his conviction and sentences. The Court upheld a preliminary objection taken by the Solicitor General that it had no jurisdiction to entertain the application since an appeal had already been determined on the merits and dismissed. Grierson's application for special leave to appeal was refused. Dixon J explained (ibid at 435-6) -
"The Supreme Court held … that a second appeal from a conviction could not be entertained after the dismissal, upon the merits, of an appeal or application for leave to appeal and that the first appeal could not be reopened after the final determination.
In my opinion this conclusion is correct. The jurisdiction is statutory, and the court has no further authority to set aside a conviction upon indictment than the statute confers. The Criminal Appeal Act 1912 (NSW) … defines the grounds, prescribes the procedure and states the duty of the court. The statute deals with criminal appeals … as a right or benefit conferred on prisoners convicted of indictable offences and sets out the kind of convictions and sentences from which they may appeal and lays down the conditions on which they may appeal as a right and by leave and the procedure which they must observe. It limits the time within which appeals and applications for leave to appeal may be brought, subject, however, to a discretionary power in the court to extend the period except where a sentence is capital. The grounds or principles upon which the court is to determine appeals are stated, and the duty is imposed on the court of dismissing an appeal, unless on those principles it determines that it should be allowed. The determination of an appeal is evidentially 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. Appeal is not a common law remedy, and proceedings at law are only subject to that remedy by statute…
If the prisoner has abandoned his appeal, the Court of Criminal Appeal in England will exercise a discretion to enable him to withdraw his notice of abandonment, notwithstanding that it operates as a dismissal of the appeal … But in such a case there has been no determination by the court, and there is no English case in which, after such a determination, an appeal has been reopened or a fresh appeal has been entertained."
[7]
Consideration
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.
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.
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.
[8]
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: 05 August 2015
After a lengthy and discursive discussion of various aspects of the evidence claimed to have been misunderstood or not considered by the Court the applicant said -
"[104]. The appellant submits the following grounds of appeal herein, which are indistinguishable in substance from those set out in the original appeal papers filed in N.I.A. 4101/07. Grounds 1 and 2 are modified but make the same complaint for assessment by an objective and impartial Court of Criminal Appeal in relation to error sought to be rectified under rule 50C of the Criminal Appeal Rules (1952) NSW and those orders sought in the appended Notices of Motion if required. (Emphasis added.)
GROUND 1: THERE HAS BEEN A MISCARRIAGE OF JUSTICE IN THE TRIAL OF THE APPELLANT ON ACCOUNT OF FRESH EVIDENCE OR EVIDENCE NOT PROVIDED BY THE CROWN IN MANDATORY PRE-TRIAL DISCLOSURE.
GROUND 2: A MISCARRIAGE OF JUSTICE WAS OCCASIONED BY THE FAILURE OF THE CROWN TO DISCLOSE AND PRODUCE COGENT EVIDENCE TAKEN BY DETECTIVE HETHERINGTON IN RELATION TO A FILE OF DOCUMENTS TITLED "MAVIS BANNISTER" WHICH WAS EXCULPATORY OF THE APPELLANT AND A CREDIBLE ALTERNATIVE HYPOTHESIS.
GROUND 3: A MISCARRIAGE OF JUSTICE WAS OCCASIONED BY THE FAILURE OF THE POLICE INFORMANT, DETECTIVE HETHERINGTON TO CONDUCT A PERTINENT AND DILIGENT INVESTIGATION OF THE MATTER.
GROUND 4: THE VERDICT IS UNREASONABLE AND CANNOT BE SUPPORTED BY THE EVIDENCE.
GROUND 5: A MISCARRIAGE OF JUSTICE WAS OCCASIONED BY INADEQUATE DIRECTIONS GIVEN BY THE LEARNED TRIAL JUDGE IN RELATION TO:
(a) Discrepant facts going to the credibility of Crown witnesses Ray Gall, Brett Gall and Brian Purkiss concerning the alleged purchase by the Appellant of a thoroughbred racehorse from Ray Gall;
(b) The use to which evidence of the thoroughbred transaction (if believed) could be put in respect of the drawing of inferences of fact;
(c) Warnings concerning the drawing of inferences of fact concerning the 4 counts of the use of false instruments from the evidence of the thoroughbred transaction."
There then followed further discursive (and largely repetitive) submissions about the nature of the case made against him at trial which, he claimed, was inadequately considered by the Court.
In addition to the complaints made by the applicant about the way in which his appeal was considered and determined, is the complaint that the duties of the police and Office of the Director of Public Prosecutions in respect of pre-trial disclosure of documents (the "Mavis Bannister file") led, the applicant contended, to a miscarriage of justice. During argument on the appeal the applicant had referred to evidence of Detective Hetherington to the effect that the file (referred to as comprising "some crucial documents") was in the applicant's bag when he was arrested and that Detective Hetherington said that, keeping no copy, he returned it but was unable to say to whom he gave them. The applicant said that possession of these documents "would have enabled me to have given further and better instructions to counsel and for them to have planned my defence in a much more fulsome way".
The applicant's written submission on the appeal against conviction referred to his assertion in an affidavit that, on 22 August 2009 (the day following his conviction) a cardboard box containing about 4,000 pages of documents was delivered to the gaol where he was imprisoned. The applicant deposed that, among others, it contained particular documents, identified as annexures "C", "D", "E", "G", "I", "J" and "K". Although this box was delivered by the ODPP (having been collected from the Court's registry), the documents in it had come from the applicant's lawyers and had earlier been produced to the Court for the purposes of an interlocutory application. According to an affidavit from the relevant employee of the ODPP, the box contained only documents that had come from the lawyers and, furthermore, annexures "J" and "K" were not amongst them. The annexures, particularly "J" and "K", were the documents submitted by the applicant on his appeal as new evidence which, had it been available at trial, would have given rise, he claimed, to a significant possibility of acquittal. In the appeal, the Crown had first submitted that the documents did not constitute fresh or new evidence since they had been available to the applicant before or at the trial and, indeed, he had relied on them to seek a permanent stay. Secondly, the Crown in substance submitted that annexures "J" and "K" (asserted by the applicant to have come to light by this delivery) were in fact not amongst documents which had been sent. Their provenance and authenticity were therefore questionable. In the result, the Court concluded (ibid at [145], [146]) that the applicant had failed to demonstrate that documents "J" and "K" were in existence at the relevant time or, if they were, that they were not available to him at his trial. In short there was nothing that might qualify as fresh or new evidence. The grounds of appeal concerning these issues were thus dismissed.
For reasons that do not presently matter, the applicant himself made oral submissions to the Court in respect of one of his appeals, during the course of which he mentioned the Mavis Bannister file in the terms quoted above. However, that file had been referred to neither in his written submissions nor his grounds of appeal. He raised it in this way (following submissions on the annexures) -
"If I could say one thing that would assist your Honours, when Detective Hetherington gave evidence in regard to these documents he indicated that he had, without authority, returned some crucial documents that were related to a file kept in respect of a woman by the name of Mavis Bannister whom I had referred to Mr Williams for some legal work…"
It is clear that this called for no consideration, let alone findings, by the Court.
Rule 50C
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.
(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.
It is agreed that the application was brought within the time specified in r 50C(2).
In Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 this Court had dismissed the appellant's appeals against conviction and sentence, publishing its reasons for doing so and pronouncing orders effecting this outcome. However, after the orders had been formally recorded, the Court discovered that its reasons contained substantial factual errors (arising from the way in which the appeal documents had come before it) and, after it revisited its conclusions in light of the errors, ordered that the dismissal of the appeals should be "confirmed". Allowing Burrell's appeal, Gummow ACJ, Hayne, Heyden, Crennan and Kiefel JJ stated -
"[15] …[It] is important to recognise that underpinning consideration of the issues presented in this matter are fundamental principles about finality of litigation. As was said in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at 17 [34]: "A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances." That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud … and in doctrines of res judicata and issue estoppel. The principal qualification to the general principle of finality is provided by the appellate system. But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded.
[16] …
[17] It is desirable to expose and explore a premise that underpinned the debate in the present matter about the powers of the Court of Criminal Appeal. The premise for the arguments of both the appellant and the respondent was that the formal recording of the orders of the Court of Criminal Appeal was a significant step. Why is that so? In answering that question it is desirable to notice a point about terminology: the use in this context of the word "perfected" or cognate words.
[18] The formal recording of the orders of a superior court of record is often referred to as the "perfecting" of that order. Whether a court may reopen a proceeding and reconsider the order that has been pronounced is often described as hinging about whether the order has been "perfected". This use of terminology must not be seen as giving form and procedure precedence over substance and principle. The questions that arise in this matter must depend for their answer not upon what forms and solemnities have been observed but upon how effect is to be given to the principle of finality. In particular, what is to mark the point at which a court concludes its consideration of a controversy?
[19] 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.
[20] 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.
[21] 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.
[22] Neither the appellant nor the respondent challenged any of these propositions. Rather, the accepted premise for the debate was that formal recording of the orders of the Court of Criminal Appeal ordinarily does mark the end of that Court's power to consider the issues which were tendered in the proceedings that yielded those orders. Hence the expression of the question for this Court as whether the Court of Criminal Appeal had power to reopen the appellant's appeals and reconsider its orders. And, as explained earlier, if the Court of Criminal Appeal had power to reopen the appellant's appeals and reconsider the orders it had made, that power must be found in "the text of the governing statutes and any express or implied powers to be seen therein" (DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 at 247). That is, the power must be found in the Criminal Appeal Act 1912 (NSW) ("the Criminal Appeal Act").
[23] …
[24] In Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, 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 [2007] HCA 51; (2007) 82 ALJR 82 at 85 [7]; [2007] HCA 51; 239 ALR 651 at 654.
[25] The Solicitor-General for New South Wales, appearing for the respondent in the present proceedings, expressly disclaimed any application to have this Court reconsider its decision in Grierson. Instead, the Solicitor-General submitted only that, "[i]f there was a denial of procedural fairness in this matter it lay in the fact that the order [disposing of the appeal] was perfected the same day and very soon after the reasons for judgment were handed down" and that "[i]f the denial of procedural fairness qualification referred to in [Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466 at 484] and [Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 300] applied, then this inadvertent procedural unfairness may have allowed the court to re-open the order to allow the acknowledged factual errors to be corrected" (emphasis added).
[26] It is not necessary to consider whether some forms of denial of procedural fairness could warrant grafting some exception upon the general rule stated in Grierson. Nor is it necessary to examine what was said in either Pantorno or Postiglione about these matters. Neither case decided that the general rule in Grierson should be qualified according to whether there had been a denial of procedural fairness. It is therefore not necessary to consider what root could be found in the Criminal Appeal Act for such a proposition, and as both Grierson and DJL at 247 make abundantly plain, it is there that the source of any such exception must be found.
[27] Rather, it is sufficient in this case to say that formally recording the orders of the Court of Criminal Appeal before the parties had examined the published reasons of the Court did not amount to any denial of procedural fairness. Each party had had a full opportunity to place his or its arguments before the Court of Criminal Appeal. If either party had detected the factual errors made in this matter in the reasons of the Court of Criminal Appeal before its orders were perfected, that party could have and should have (Texas Co (Australasia) Ltd v Federal Commissioner of Taxation [1940] HCA 9; (1940) 63 CLR 382 at 457; DJL [2000] HCA 17; (2000) 201 CLR 226 at 244) at once moved the Court of Criminal Appeal to intercept the processes of formal recording of the orders and to hear argument about whether errors had been made. But it would be contrary to principle to hold that the Court of Criminal Appeal must afford a sufficient opportunity for parties to consider whether such an application should be made.
[28] The parties to an appeal are given procedural fairness by allowing each a proper opportunity to make submissions before the court makes its decision. Once the court announces the decision it has made, any further hearing is exceptional. To hold that parties must be given a sufficient opportunity to consider whether to ask for a further hearing would convert the exception into the rule. That step should not be taken."
It will be seen, from [25] above that the plurality apparently accepted that, had the orders not been perfected, the issue raised by the discovery of the mistaken facts could have been considered by the Court and submissions invited as to its significance (as was, indeed, done but too late). The cited passage from Texas Co (Australasia) Ltd v Federal Commissioner of Taxation [1940] HCA 9; (1940) 63 CLR 382 at 457 comes from the judgment of Starke J (omitting references) -
"… Even if the board had reached the conclusion that its former pronouncement was wrong, I see no reason why it should not have corrected any mistake that it had made and promulgated a proper decision so long as it was seised of the matter for the purpose of review. A superior court of justice, it may be remarked, has full power to rehear or review a case until judgment is drawn up, passed, and entered…"
This was followed in DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 with additional observations -
"[34] The common law courts, as superior courts of record, had "full power to rehear or review a case until judgment [was] drawn up, passed, and entered". That statement, with citation of supporting authority, was made by Starke J in Texas Co (Australasia) Ltd v Federal Commissioner of Taxation ... Even after entry of judgment, an error arising from an accidental slip or omission might be corrected at any time by further order in the action and even without an enabling rule of court (L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] [1982] HCA 59; (1982) 151 CLR 590 at 594-595). An order also might be made in the action for the correction of the records of the court to make certain that they truly represented what the court had pronounced or had intended to pronounce (Ainsworth v Wilding [1896] 1 Ch 673 at 678-679; Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR (Pt 1) 642 at 669). It also appears that a judgment might be set aside after entry if the parties to the judgment consented, although in deciding whether to make such an order the court would have regard to the interests of third parties (Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45. Finally, where the business of the court was so organised that some orders were made in chambers, those orders may have been open to review by motion in the action, even if they were final orders (C H Giles & Co Ltd v Morris [1972] 1 WLR 307 at 313; [1972] 1 All ER 960 at 965)."
This reflects the fundamental distinction created by the "watershed" effect of formal entry.
In R v Reardon [2004] NSWCCA 197; (2004) 60 NSWLR 454; (2004) 146 A Crim R 475 documents were produced following argument on appeals which had not been available at the initial hearing and leave was given to one of the appellants to put on further submissions. The further submissions based on these documents dealt with the issues in respect of which leave had been granted but also added a contention which was outside the grounds of appeal, in respect of which no application to amend had been made. In its subsequent judgment, the Court dealt with all issues raised by the grounds of appeal and those in respect of which leave to make further submissions had been granted but it did not deal with the additional contention. The appellant then applied to reopen the appeal on the ground that he was denied procedural fairness, since one of his arguments was not dealt with by the Court. Hodgson JA (with whom Simpson and Barr JJ agreed) considered whether the Court of Criminal Appeal could reopen a case after its orders had been perfected, commencing with Grierson and then taking up contentions put on behalf of the appellant that there were qualifications to the principle enunciated in that case. His Honour pointed out (ibid at [26]) a qualification may have been raised in Jones v The Queen [1989] HCA 16; (1989) 166 CLR 409; (1989) 39 A Crim R 400, in which the Court of Criminal Appeal in Tasmania upheld two of a number of grounds of appeal, quashed the conviction and directed that there be a new trial but had not dealt with other grounds which, if accepted, would have led instead to a verdict of acquittal. The High Court of Australia upheld the appeal and ordered that the matter be remitted to the Court of Criminal Appeal to complete the hearing and determination of the appeal. Mason CJ and Brennan, Dawson and Toohey JJ said (166 CLR 409 at 414-5) -
"The order of the Court of Criminal Appeal has been perfected. Counsel for both parties in this Court approached the application for special leave on the footing that it is now too late for the applicant to move the Court of Criminal Appeal to hear and determine the grounds left undetermined. If that be right - and in this case we should assume but not decide that it is - it is regrettable that when the omissions from the reasons for judgment in the Court of Criminal Appeal became known and before the formal order of the Court was perfected such an application was not made to the Court. Now, in order to ensure that the applicant's appeal to the Court of Criminal Appeal is fully determined, it is necessary to vary that Court's judgment and to remit the matter for further hearing and determination."
As Hodgson JA observed (Reardon at [27]) -
"Thus the majority in that case left open the possibility that, even after an order has been perfected, a Court of Criminal Appeal may be able to reopen the case to hear and determine grounds of appeal left undetermined."
In Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466; (1989) 38 A Crim R 258 special leave to appeal to the High Court was sought on a ground that had emerged only when the Court of Criminal Appeal had pronounced its judgment. Mason CJ and Brennan J said (166 CLR 466 at 474) -
"… Failure to argue a point before a court of criminal appeal presents a considerable obstacle to an applicant who seeks special leave to argue it in this Court. Even if the point emerges clearly only when a court pronounces its judgment, it should be appreciated by counsel who receive judgment that they are under a duty to draw the court's attention to issues which, in the light of the judgment, require further consideration by that court and to move the court to consider any such issues before the formal order of the court is perfected. On occasions, a court of criminal appeal may have to give further consideration to issues which were relegated to the margin of attention during the argument, though it is not required to consider new grounds which counsel abstained from raising on the appeal. In the present case, the failure of counsel to seek further consideration of the natural justice issue once Bridges was overruled by the Full Court is a factor which counts against the grant of special leave. However, as there seems to have been an erroneous view in some sections of the legal profession (now hopefully corrected) that no application can be made to a court of criminal appeal once its judgment is pronounced, it is not a fatal objection to the grant of special leave in this case. In this case, as a denial of natural justice appears from the concession made in this Court, as the point was covered by the grounds of appeal in the Court of Criminal Appeal and as argument in this Court proceeded upon the tacit assumption that the formal order of the Court of Criminal Appeal had been perfected so that there are now no means of remedying the position save an appeal to this Court, special leave should be granted."
Deane, Toohey and Gaudron JJ observed (at 484) that there had been an "inadvertent denial of procedural fairness" by the Court of Criminal Appeal which would ordinarily preferably be dealt with by further application to that Court. Nonetheless, in Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; (1997) 94 A Crim R 397, Dawson and Gaudron JJ made the point (189 CLR 295 at 300) that Grierson was still authority for the proposition that the Criminal Appeal Act 1912 (NSW) did not confer jurisdiction to reopen an appeal which had been heard on the merits and finally determined and, in substance, that the exception in Pantorno applied to the ability of an intermediate court of appeal to entertain an application to remedy a denial of procedural fairness whether or not its order had been perfected and did not concern its jurisdiction to entertain a second appeal when the first had been heard and determined on the merits and an order perfected.
To return to Reardon, after setting out the relevant passage, Hodgson JA noted the agreement of Gummow J with it (at 327), although contra McHugh J (at 315).
After discussing these cases, Hodgson JA, after considering R v Lapa (No 2) (1995) 80 A Crim R 398, R v McNamara (No 2) (1997) 1 VR 257, R v Saxon (1998) 101 A Crim R 71 and R v Gust [2000] NSWCCA 287, summarised the position as follows -
"[40] The authorities make it clear that, if an application to re-open an appeal is made before the judgment dealing with the appeal has been perfected, the Court has jurisdiction to re-open its consideration of the appeal, and that denial of procedural fairness will be a ground on which the Court may take that course. However, the situation is not so clear where the application to re-open is made after the order of the Court has been perfected. Grierson is direct authority to the effect that the Court of Criminal Appeal has no jurisdiction to re-open an appeal once it has heard and determined the appeal and the order has been perfected. Jones suggests that this principle might not apply if a purported determination of an appeal in fact does not amount to a determination of the appeal because there has been a total failure to determine some of the grounds of the appeal. Pantorno and Postiglioni suggests the possibility that there might be jurisdiction to re-open an appeal where procedural fairness has been denied. In the Court of Criminal Appeal. R v Lapa suggests that there is no jurisdiction to re-open an appeal once the order is perfected, even where there is a denial of procedural fairness; but it could be said that that view is expressed obiter. The contrary view is expressed in R v Saxon and R v Gust, but again it could be said that the view is expressed obiter.
[41] In my opinion, what was said in Jones, Pantorno and Postiglioni is insufficient to displace the binding authority of Grierson to the effect, once an appeal has been heard and determined and the order perfected, there is no jurisdiction to re-open the appeal. This is subject to the slip rule, and the possibility of separate proceedings to set aside orders obtained by fraud. However, it is to be noted that this principle applies when an appeal has been heard and determined; and leaves open the possibility that if there are grounds of appeal which are not determined at all, it could be said that the appeal has not been determined. That is a possibility adverted to by Sperling J in R v Saxon; but in my opinion, it is not any denial of procedural fairness which would have the result that it could be said that an appeal has not been heard and determined. In my opinion, it is only if there is some ground of appeal which was argued but not determined by the court that one might be able to say that a purported determination does not, in relation to that ground of appeal, amount to a determination of the appeal. Failure to deal with an argument that has been advanced, or deciding an appeal on a basis not properly argued, although possibly amounting to a denial of procedural fairness and thereby to an error of law, could not of itself in my opinion be a failure to determine the appeal such as could avoid the operation of the principle in Grierson. To that extent, I prefer the view expressed in R v Lapa to the contrary view expressed in R v Saxon and R v Gust."
His Honour concluded that, there having been no amendment sought to the grounds of appeal, the earlier judgment had determined Reardon's appeal as it then stood. Nor was there any denial of procedural fairness, so that the case was not one in which it could be said that the appeal had not been determined and, accordingly, there was no jurisdiction to reopen it.
The passage at [41] in the judgment of Hodgson JA in Reardon was cited with approval in Morgan v Regina (No 2) [2013] NSWCCA 80; (2013) A Crim R 483 by Beazley P (Hidden and Harrison JJ agreeing) (at [62]). Morgan was convicted on an indictment containing five counts in respect of different offences and unsuccessfully appealed against his convictions in respect of three of the counts only. The argument in the Court concerned only his convictions on those three counts and counsel for Morgan confirmed that the remaining two counts were not the subject of any appeal. The Court quashed the conviction on the three counts but entered a verdict of acquittal only in respect of one, ordering new trials in respect of the remaining two. Morgan then sought by separate proceedings to appeal against his convictions on the two unconsidered counts (five and six). Morgan's original notice to appeal referred to all counts on which he had been convicted, although the grounds of appeal did not concern the convictions on counts five and six and, when questioned by the bench, his counsel confirmed that they were not the subject of any appeal. Morgan contended that the Court still had jurisdiction to deal with those two counts because either he had not appealed against those convictions or his appeal in respect of them had been abandoned and the Court could go behind that abandonment. Beazley J concluded (Hidden and Harrison JJ agreeing) that, since only one indictment may be presented for trial, though it may contain a number of counts, there can only be one appeal in respect of the convictions on that indictment (at [73]). Furthermore, the rules as to abandonment of an appeal concern the appeal as a whole, so that, although particular grounds might not be pressed in relation to particular convictions, the rule permitting abandonment does not permit abandonment of an appeal in respect of some of the convictions (at [82]). Accordingly, the fact that an appellant decides not to pursue appeals against some of his or her convictions does not mean that the Court's determination in respect of the other convictions has not been a determination of the entirety of his right of appeal. Although the unchallenged convictions will not be the subject of a specific order of the Court, they cannot thereafter be separately appealed (at [83]). The consequence was, although the prosecution in effect conceded that (considering the interconnection between the charges in respect of the quashed convictions and the remaining charges) they ought also to be quashed, if there were jurisdiction to do so, that the Court did not have this jurisdiction and the convictions on counts five and six therefore stood.
The issue of finality has been considered by the High Court in the context of s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which enables a court to reopen sentence proceedings where the court has "imposed a penalty that is contrary to law": Achurch v The Queen [2014] HCA 10; (2014) 236 A Crim R 427. A Crown appeal to this Court against the inadequacy of sentences was allowed and the sentences increased. Two of the offences were subject to standard non-parole periods and dealt with in a way disapproved by Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, which was decided seven weeks later. The appellant then applied to reopen the appeal under s 43. The Court dismissed the application on the basis that s 43 did not apply to the Muldrock errors which, it was agreed, had occurred. French CJ, Crennan, Kiefel and Bell JJ (Gageler J agreeing in somewhat different language) pointed out (at [14ff]) that the power of courts to reopen proceedings and vary orders, absent specific statutory authority, "is constrained by the principle of finality". Of present relevance is the point made that this principle is the background against which "any statutory provision conferring power upon a court to reopen concluded proceedings is to be considered… [and] is a principle which may inform the construction of the provision" (at [16]). However, "consistently with a principle of finality, courts may correct their errors before their orders are formally recorded" (at [17]), as by application of the slip rule.
The first decision of this Court dealing in terms with the construction and application of r 50C (as such) was Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69, in which the applicant sought, within the time limited by the rule, to set aside or vary an order earlier made to dismiss his appeal against conviction. The Court noted, in substance, that r 50C did not change the powers of the Court to vary or set aside orders that applied by virtue of the Criminal Appeal Act (of course, this followed from the former's subordinate status) but extended the period during which an application for the setting aside or variation could be made (ibid at [4]). The Court went on to state -
"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.'"
The applicant sought to reopen the appeal to call further expert evidence which had been available at the time of trial but gave no explanation as to why that material had not been presented on the appeal. The Court concluded -
"[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."
It is, perhaps, worth observing that the penultimate sentence of this passage does not suggest an available way of reopening an appeal. The reference to the manner in which the appellant ran his case was made to render it unnecessary to consider whether the asserted misapprehension was capable of correction under r 50C and did not imply that fresh evidence would be sufficient, even if it had been unavailable; the reference to counsel's competence was simply to note (as a courtesy) it was not suggested otherwise. The last sentence is, as I understand it, a reference to the possibility that the original appeal had gone awry because the proposed ground was prevented by the Court from being raised - which might, in some circumstances, justify reopening (vide Pantorno, infra).
The interpretation of r 50C applied in Alramadan was followed in Kauwenberghs v R [2009] NSWCCA 201. The Court allowed the applicant's appeal against his sentence and he was resentenced accordingly. He made an application under r 50C to vary his sentence, claiming in effect that the Court did not have the grounds for appeal and written submissions he had prepared and filed in advance of the hearing of the appeal but instead had considered the grounds of appeal and written submissions which had been prepared by his former lawyers, both of which he had specifically abandoned when he assumed the conduct of his appeal. In the result, an analysis of the two sets of documents did not disclose any material difference. The Court concluded that none of the issues or grounds pursued by the applicant on the appeal were "overlooked or were the subject of a misapprehension of a kind that enlivens an exercise of the Court's power under Rule 50C" (ibid at [36]).
In R v Jones; R v Hili (No 2) [2010] NSWCCA 195; (2010) 79 NSWLR 143; (2010) 242 FLR 64 the Director of Public Prosecutions (Cth) sought orders for the correction or amendment of the reasons for judgment of Rothman J in R v Jones; R v Hili [2010] NSWCCA 108. Rothman J (with whom McClellan CJ at CL agreed), after a review of a number of cases dealing with the inherent powers of a superior court of record, said -
"[38] Plainly, the primary submission of the respondents that the court has no power to alter its reasons for judgment does not withstand scrutiny. The power to alter reasons must be at least as wide as the power to alter the judgment. In other words, there must, at the very least, be a power, in a superior court of record, to alter reasons for judgment to overcome a slip or where the intention of the court has not manifested in the reasons.
[39] Further, the respondents' submission mistakes the wording of the reasons with the content of the reasons. Whereas the judgment of a court is the expression from which that which may be enforced must be taken, the reasons are the rationale upon which that judgment is based.
[40] Thus, an infelicitous expression may be corrected without effecting an alteration to the reasons. It would simply be an alteration to the wording of the reasons.
[41] As already stated, superior courts alter reasons delivered ex tempore by correcting an infelicitous or injudicious use of language or correcting some grammatical expression. Such an alteration does not alter the reasons for judgment. But the Court is not entitled to alter the wording in a manner inconsistent with the reasons originally issued. Even then, there are exceptions. For example, if a court expressed reasons that mistakenly inserted the word "not", or omitted it; or mistakenly referred to the "plaintiff" instead of the "applicant", who or which may be the defendant. Further, a judgment may issue (and be entered) before reasons are published, when urgency requires it and the judge has reserved his reasons: see Fletcher Construction Australia Ltd v Lines MacFarlane Marshall Pty Ltd [2001] VSCA 167 at [38]-[40], and cases cited therein."
As initially published, the judgment under consideration stated that the respondents had "cheated on company tax… [having] paid out on false invoices, thereby avoiding GST and income tax, and returned the money to their own personal accounts…" The error was that the reference to GST was a slip for "company". Rothman J explained that, because the false invoices concerned overseas transactions supplied by an overseas entity, GST was not payable and the "intended wording drew the distinction between a scheme which, if genuine, would not have occasioned the payment of GST ("avoidance") and the fraudulent evasion of income tax". In that sense, the reasons for judgment involved a slip and would be amended by inserting "evading" before the words "income tax" in the paragraph (ibid at [53] - [55]). The second alteration concerned language which contradicted the plain intention of the Court to fix a mandatory detention period that was 50 per cent of the total sentence imposed below and no lower. The impugned paragraph did not convey this intention and it was therefore corrected. As Rothman J put it -
"[63] Again, the intent of the original reasons has been infelicitously expressed and correcting the wording of the reasons to reflect better the original intent is not altering the basis or rationale of the judgment, as it was originally intended."
His Honour summed up the position -
"[65] Neither of these alterations involve an alteration to the rationale or basis upon which the appeal was granted and the sentence fixed. As a consequence, the alterations to the wording of the reasons are within power and will be made."
In other cases, orders specifying dates for sentences and non-parole periods did not reflect the intention of the Court as demonstrated in the reasons and corrections were made: see Buadromo v R (No 2) [2011] NSWCCA 55; R v AB (No 2) [2011] NSWCCA 256; Akkawi v R (No 2) [2013] NSWCCA 72; Martin v R (No 2) [2013] NSWCCA 26; R v Green; R v Quinn [2011] NSWCCA 71; Yeonata v R (No 2) [2013] NSWCCA 59; KW v R (No 2) [2013] NSWCCA 84; R v Ly (No 2) [2014] NSWCCA 91.
In PFC v R (No 2) [2014] NSWCCA 241 the applicant, relying in part upon what he said was fresh evidence, in substance attacked the whole of the reasoning and findings of the Court which dismissed his appeal. The application was refused upon the basis that such an exercise was not permitted under r 50C or, for that matter, by the inherent powers of the Court.
Mr Miller submitted that his contention that this Court had jurisdiction to consider his application was supported by Cooley v The State of Western Australia [2005] WASCA 160; (2005) 155 A Crim R 528 (the principal judgment of 19 August 2005); BC200507376 (the supplementary judgment of 28 September 2005) in which the appellant had appealed from his conviction of wilful murder under the Criminal Code (WA). In that case, a ground of appeal alleged that a doctor to whom the appellant had allegedly made a confession of an intention to kill the deceased had been discredited after the trial by the Medical Registration Board and question marks were therefore raised about his credibility. This ground was struck out at a directions hearing prior to the hearing of the appeal because the adverse findings of the Board had by then been quashed on appeal to the Supreme Court. As it happened, the decision by the Board had in fact occurred prior to and not after the trial. At the hearing of the appeal, the applicant's counsel sought to have the ground reinstated upon the basis that the Crown would or should have known of the Board's findings and failed to disclose them to the defence, which was unaware of publicity in the media about them. The applicant argued that he was denied the opportunity of challenging the doctor's credibility based upon the (albeit reversed) adverse findings. Granting leave to reinstate the ground (with adjustments to fit the correct chronology), the Court held that, although the findings were neither new nor fresh (since they were in the public domain and would have been revealed by reasonable inquiry), the Crown should nevertheless have informed the defence about them, which would have enabled the doctor to be cross-examined on the Board's findings against him and, if necessary, proved and given rise to a reasonable doubt about the reliability of the doctor's evidence ([2005] WASCA 160; (2005) 155 A Crim R 528 at [66]). Accordingly, this amounted to a miscarriage of justice and the ground was upheld, though it was mistakenly framed. However, the ability to cross-examine on the Board's findings was available only because, at that time, the doctor's appeal to the Supreme Court had not been determined. His appeal succeeded so that, as Roberts-Smith JA (with whom the other members of the Court agreed) pointed out (ibid at [70]) he could not at any new trial be cross examined on the reversed findings and counsel would have been in the same position as in fact he was in the original trial. It followed that no substantial miscarriage of justice had occurred and the appeal was dismissed pursuant to the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA).
Several days after delivery of the principal judgment, counsel for the Crown wrote to the Court disclosing that, in fact, there had been no failure by the Crown to disclose the decision of the Board, the prosecutor being aware that defence counsel had read its findings. It followed that counsel had made a conscious decision in all the circumstances not to cross-examine the doctor about the matter. This was confirmed shortly after by counsel for the defence at trial. In light of these developments, both counsel agreed to a suggestion by the Court that the matter should be relisted and an order made that relevant parts of the reasons for judgment be recalled and corrected. At this time, the orders following delivery of the reasons had not been perfected.
In his Honour's supplementary judgment, Roberts-Smith JA, having pointed out that the Court had an inherent jurisdiction to set an order aside without necessitating an appeal where there had been a denial of procedural fairness, went on to say (omitting references) -
"[15] This is not a case in which a party was deprived of a right to be heard, so giving rise in the absence of injustice to the other party, to a need to exercise the inherent jurisdiction to set aside a judgment or order... This is rather an occasion to exercise the inherent jurisdiction to remedy an injustice in the nature of an incorrect finding based upon a wrong statement of facts, inadvertently asserted by counsel for the applicant and not at the time corrected by counsel for the respondent… The power exists in respect of judgments which have not been drawn up, including those of appeal courts ….
[16] Here the order to be recalled is that the applicant be granted leave to reinstate… [the ground that had been excluded by directions made before the hearing]. The reasons for judgment can be recalled to correct obvious or agreed errors…
[17] The factual error here was significant. Leave to re-open will more readily be given where that is so, even after judgment… The assertion was that the Board's finding adversely to [the doctor] and the reasons for it, were not known to the applicant's counsel at trial and were not disclosed to him by the prosecution and that he was thereby denied an opportunity to cross-examine… [the doctor] on that. The applicant now accepts that trial counsel, to the knowledge of the prosecutor, was at all relevant times fully aware of that information and with that in mind, made a deliberate forensic decision not to cross-examine the doctor on it.
[18] The circumstances in which the assertion was made in the course of oral argument and without the point having previously been raised, gave counsel for the respondent (who was not trial counsel) no opportunity to check the fact and respond to the submission in any informed way, although that was not appreciated at the time because both the Court and counsel naturally were prepared to accept the assertion of fact implied or made by counsel for the applicant. The Court was accordingly deprived of the benefit of a correct explanation of the facts and submissions based on that.
[19] For these reasons and given the importance of the factual error and the finding based upon it, we indicated we would recall our earlier order and reasons and make an appropriate amendment to them.
[20] In light of this unfortunate course of events and the erroneous factual basis upon which a finding was (thereby unjustly) made adversely to the respondent, it is appropriate that my judgment… be recalled to the limited extent necessary to correct that."
Accordingly, the passage in the judgment on appeal that made what amounted to criticism of the Crown prosecutor was removed, the true position stated and the order granting leave to reinstate the impugned ground was varied to refuse that leave.
It is clear that Cooley does not support the applicant's contentions in any way: the order varied was interlocutory; the error was agreed; no evaluation of evidence was required; and there was no possibility of impact on the outcome of the appeal.
Though it is a civil case, Bastow v Bagley & Co. Limited (1961) 1 WLR 1494; [1961] 3 All ER 1101, also relied on by the applicant, provides somewhat greater support for his contention as to the width of the jurisdiction. In that case the plaintiff was awarded 1,150 pounds in general damages for the loss of sight in his right eye but, being guilty of contributory negligence, his damages were reduced by half. He appealed solely on the quantum of damages. Sellers LJ (with whom Upjohn and Diplock LJJ agreed) said that the award was less than he himself would have been given but it was the assessment of an experienced judge and the amount was not so small as to justify interference. Sometime after judgment had been given but before it had been entered, another division of the Court of Appeal heard and determined an appeal concerning the loss of an eye with broadly similar consequences to those affecting the appellant. In that case, the damages awarded by the trial judge were so low as to clearly require intervention. The Court reassessed damages and awarded 2,000 pounds. Although its judgment in Mr Bastow's case had been delivered, it was recalled. Sellers LJ said that, given that the judges in the other division had assessed the damages in their case at 2,000, the disparity between that and Mr Bastow's award "is too great to be just and fair to the plaintiff in all the circumstances". Accordingly, the appeal was then allowed and the assessment of damages increased. Diplock LJ pointed out that damages for the loss of the sight of an eye are essentially incommensurable and the "choice of the right order of figure is empirical and, in practice, results from a general consensus of opinion of… juries, judges and appellate courts". However, the sum awarded to one victim "should not be out of all proportion to the sum awarded to another in respect of similar physical injuries" and, therefore, the appeal should be allowed.
On the face of it, this would appear to be inconsistent with the position as to correcting judgments and orders as it is in Australia. There is no discussion of principle. It is a civil case. I do not regard it as shedding any light on the jurisdictional issues in this case.
I return to the application here. However wide the grey area might be, it is clear enough from what has already been discussed that the applicant's case is a wholesale attack upon the earlier judgment of this Court and would require, for its redetermination, much the same task as that Court undertook in dealing with the grounds of appeal before it. Such an exercise is plainly not contemplated by the rule and, by a very substantial margin, is well outside the inherent power of the Court to make corrections or clarifications.
Turning to particular matters, although the applicant in his appeal raised in general terms the complaint that documents had become available to him after the trial which, if they had been produced earlier, would have assisted his defence, this ground did not concern, let alone specify, the Mavis Bannister file but involved documents of a different kind, some of which he had in his possession at all times and others which he could not prove were genuine. As mentioned, as to this ground the Court ruled that the applicant had not established that the posited fresh or new evidence was indeed fresh or new or credible. As the Crown points out, since the applicant did not raise an issue as to production of the Mavis Bannister file as a ground of appeal (although he was aware of it at the time), it follows that there could be no misapprehension of fact about it.
I have already dealt with the asserted oversight of the complaint about the "Mavis Bannister" file. The submissions made about it in the appeal did not call for consideration or determination. At all events, the issue could not now be considered as sought by the applicant. Its significance or otherwise could only be assessed by a close analysis of the whole of the evidence going to the issue of the applicant's alleged professional position, a task which this Court cannot undertake on an application of this kind. I should mention for completeness, that on the basis of the applicant's explanation of its character, its actual importance appears to be, if relevant, trivial: the fact, if true, that he referred a client to the actual Mr Miller, solicitor, does not suggest, let alone prove, that he did not pretend to be a solicitor, which was the gravamen of the offence of which he was convicted.
The other grounds should be summarily dismissed. As to ground three (Detective Hetherington's investigation), it is patent that such a ground cannot be the subject of an application under r 50C, nor the inherent powers of the Court. If it were properly particularised - which it was not - it could (or, more precisely, might) possibly be a ground of a substantive appeal but that is what the applicant cannot now have. Ground four (claimed unreasonable verdict) is also obviously impossible. Ground five (claimed misdirections) should have been raised in time and cannot now be put.
The applicant has filed three notices of motion. The first, dated 31 March 2014 sought, as I have mentioned, the reopening of the appeal, review of the refusal to grant bail and disqualification of the judges. For the foregoing reasons, the first of these prayers must be rejected. As to bail, the application was not before the Court as presently constituted in an appropriate way (and, in light of the dismissal of the then pending appeal, is now irrelevant), whilst the disqualification application was not pressed. The second notice of motion, dated 21 August 2014 sought an order for production of police records and that Detective Hetherington appear to give evidence in connection with the application. (Other orders were sought but have been overtaken by events.) The third notice of motion is dated 24 March 2015, again seeking an order for the production of certain police and ODPP records. (Disqualification of all the Justices of the Court was also sought but, again, not pressed.) At the hearing of the appeal, the applicant submitted that he wanted the orders relating to the production of documents and the presence of the police officer determined before dealing with the application itself. After hearing submissions from him which, in substance, conceded that this was further material in support of the argument that, in dealing with his appeal, the Court overlooked, misapprehended or otherwise was mistaken about his fresh evidence ground, the Court ruled that leave to produce further material would not be granted nor would the attendance of witnesses be required. The reason given at the time is that such evidence and such material of its very nature is contrary to the Court's jurisdiction under r 50C. That is not to say that in no case could additional evidence be led (for example, gaol records where there had been an error about the dates of sentences and the like) but, for the reasons already given, documents or evidence sought for the purpose of arguing a substantive ground of appeal cannot be admitted and, therefore, cannot be required to be produced.