CRIMINAL LAW - appeals - application under r 50C of the Criminal Appeal Rules - scope of r 50C - alleged errors of fact and law - re-agitation not permitted
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CRIMINAL LAW - appeals - application under r 50C of the Criminal Appeal Rules - scope of r 50C - alleged errors of fact and law - re-agitation not permitted
Judgment (18 paragraphs)
[1]
The applicant's submissions
In his affidavit supporting the notice of motion, the applicant contended that the Court made a number of errors of fact and law in the evaluation of his grounds of appeal and submissions on appeal. As stated by the applicant in paras (8.2) and (8.6) of his affidavit:
"8.2 The grounds of appeal were to the effect that the verdict was unreasonable and could not be supported by the evidence which in itself, was almost entirely inadmissible. This ground of appeal was further supported by individual grounds that complained that Woodburne J had, in error of law, admitted evidence over objection of the voice recognition test, photograph identification and handwriting report. The evidence of Mr Badrous was the subject of complaint in the appeal that it should have been disregarded by the jury by judicial direction.
…
8.6 For the purposes of the Application under Rule 50C, by error the first Court of Criminal Appeal neglected to consider or pronounce upon the whole of the grounds of appeal, the relevant facts and the applicable law as was its task."
The applicant expanded upon each of the specific matters of which he complained in paras (8.2) and (8.6). It is necessary to point out, however, that the applicant's submission in para (8.2) does not accurately state the manner in which the appeal proceeded before the Court. In the principal judgment, the Court recorded the grounds of appeal as contained in the notice of appeal, as amended during the course of the hearing. Ground 1 of the appeal complained that the verdict was unsafe and/or dangerous in all the circumstances of the proceedings. There were then individual grounds of appeal relating, inter alia, to the voice identification evidence, the photographic evidence and the handwriting evidence.
However, as the Court noted at [7] of the principal judgment, the applicant, in his written submissions on the appeal, identified the issue on the conviction appeal in the following terms:
"Whether the following evidence should have been admitted and that there was a miscarriage of justice as a consequence of the admission of the following:
a) voice identification evidence;
b) visual identification evidence; and
c) identification handwriting evidence of Paul Dennis Westwood."
The Court further stated, at [8]:
"Save for the reference to 'miscarriage', there was no identification of an overarching ground that the verdict was unreasonable or was not supported by the evidence pursuant to the Criminal Appeal Act 1912 (NSW), s 6(1). None of the written submissions were directed to such a ground. There were but vague references to ground 1 in oral argument. It should also be noted at the outset that the appellant did not refer the Court to any evidence that might support an 'unsafe ground', independently of the evidence to which the Court was taken in respect of grounds 2-4 and 6. We will return to this later in these reasons."
It is immediately apparent that the applicant, in formulating his submission at para (8.2) of the affidavit, has replicated the language that this Court used in the primary judgment. Presumably he did so in order to formulate an appropriate ground of appeal. However, as we explain below, r 50C is not directed to the re-agitation of the appeal. For that reason, the applicant's reference in both his affidavit submission and supplementary submissions, to which we refer below, to SKA v the Queen [2011] HCA 13; 243 CLR 400 and the implication that the Court had not considered the whole of the evidence, is to be considered in the context in which the matter proceeded on the appeal.
By supplementary submissions filed prior to the oral hearing, the applicant submitted that the Court should make orders quashing his convictions and order a retrial or an acquittal. The applicant identified a number of grounds in support of his "request for the first court to reconsider its judgment and order to dismiss the appeal". In line with the applicant's original written submissions, he alleged error of law and failings in the discharge of the appellate task in relation to the voice identification evidence, the visual identification evidence, the treatment of the evidence of Mr Badrous and the handwriting evidence of Mr Westwood. The applicant also identified a range of factual matters that, it was contended, the Court had neglected to address in the principal judgment.
In his oral submissions to the Court, the applicant placed particular reliance on the alleged failure of this Court in its principal judgment to undertake the appellate task required of it in accordance with the principles stated in SKA. Mr Miller contended that the principal ground of appeal was that his conviction was unreasonable having regard to the evidence. He relied upon the decision in SKA and s 6(1) of the Criminal Appeal Act, pointing out that in accordance with the Act, the Court was required to look at the whole of the evidence.
[2]
The voice identification evidence
By his original written submissions, the applicant contended that had the Court undertaken its task correctly in accordance with the principles stated in SKA, it would have held the voice recognition evidence inadmissible in accordance with the principles in Korgbara v R [2007] NSWCCA 84 and Bulejcik v The Queen [1995] HCA 54; 185 CLR 375. He contended that the Court thereby erred in law.
By his supplementary submissions, the applicant alleged two bases of error in relation to the voice identification evidence. First, it was contended that the voice identification evidence should have been held irrelevant on the basis of the reasoning in Smith v R [2001] HCA 50; 206 CLR 650. Secondly, the contention that the voice identification evidence should have been held inadmissible was reiterated in light of the recent decision of the High Court in IMM.
[3]
The photographic evidence
In his original written submissions, the applicant contended that the Court also erred in ruling admissible both the photograph taken from CCTV footage recorded at the Airport Mercure Hotel and the lay opinion evidence in respect of the photographic evidence. He submitted, at para (8.10), that the "first court" would have ruled the evidence inadmissible had it considered the following facts:
"1) The facial features could not be discerned;
2) The provenance and authenticity of the photograph could not be known;
3) No feature by feature comparison could be made;
4) There was no 'facial mapping' process undertaken by an expert;
5) The height and body shape of the person it depicted could not be conclusively seen."
The applicant relied upon Smith and R v Tang [2006] NSWCCA 167; 65 NSWLR 681 in further support of that submission.
In support of his submission that neither the voice recognition evidence nor the photographic evidence was admissible, the applicant contended that the "first court" never considered the highly significant fact that Yen Gao, the manager of Jaggards, the company from which the accused had ordered gold bullion and who had received the email from 'John Fisher', did not identify the applicant's voice in a recognition test. The applicant, at para (8.12), submitted that this was "prima facie evidence that [he] did not send the email and was not at the Airport Mercure Hotel". Nor, so the applicant contended, did the "first court" consider any of the other facts to which he referred.
By his supplementary submissions, the applicant reiterated his contention that the visual identification evidence should have been held irrelevant on the basis of the reasoning in Smith. The contention that the voice recognition evidence should have been held inadmissible was again reiterated in light of the decision in IMM.
[4]
Evidence of Mr Badrous
The applicant, at para (8.14) of his affidavit, made an additional complaint in respect of the evidence of the witness George Badrous. He contended that the Court, in its principal judgment, should have addressed each of the facts relevant to Mr Badrous' oral evidence and considered whether or not his responses gave rise to a credible alternative hypothesis to the alleged guilt of the applicant. The applicant then contended, at para (8.15), that:
"The first court had evidence but omitted to consider that Mr Badrous was:
1) A convicted fraudster of similar offences and circumstances to that involved in the loan application to the Uniting Church Trust;
2) Was about to be sentenced for fresh fraud offences which involved the use of false instruments and sought a reduction of sentence;
3) Possessed and used computer scanning programmes and was seen to use them to make false bank statements;
4) Forged the name of an accountant and his signature on false accounting records;
5) Used false accounting records to obtain loans exceeding $10 million which were never repaid;
6) Knew of Rugby House and was arrested with an envelope of related documents which contained his handwriting;
7) Convicted on plea of guilty of fraudulent loan application to crown witness Alicia Candido."
The applicant's reference in these submissions to the "first court" is a reference to this Court's reasoning in its principal judgment.
In his supplementary submissions, the applicant reiterated and expanded upon his complaint that the Court failed, in the principal judgment, "to traverse the testimony of Mr Badrous as part of its appellate task". It was contended that a proper discharge of appellate function required the Court to "have isolated all of the evidence concerning Mr Badrous". If the Court had done so, as the argument went, the Court should have "arrived at the only available conclusion that the evidence adequately revealed a credible alternative hypothesis". The applicant identified some 20 factual matters in relation to Mr Badrous that were said to compel this conclusion.
[5]
The handwriting evidence
The applicant alleged error of law and failings in the discharge of the appellate task in relation to the legitimacy of the methodology and opinions of Mr Westwood, a handwriting expert called by the Crown. By his oral submissions, the applicant sought to challenge the methodology employed by Mr Westwood in expressing his opinion that the handwriting on certain documents involved in the relevant offences was the same as the handwriting on certain specimen documents said to contain his handwriting. In particular, the applicant sought to impugn the methodology adopted by Mr Westwood in making comparisons at the level of individual letters. The applicant characterised this approach as not conforming with what he identified as the "accepted methodology", and invoked the views of another handwriting specialist that "there was insufficient material … to form a carefully reasoned view" as to whether the handwriting was the same.
[6]
Other matters
By his supplementary submissions, and in oral argument, the applicant raised an argument that the principal judgment had not addressed certain evidence said to constitute an alibi. The applicant contended that a photograph tendered at trial, and from which a Crown witness identified the applicant, placed him at Bateman's Bay on 19 January 2006, when the Crown alleged he had been at the Airport Mercure Hotel.
[7]
The Crown's submissions
The Crown submitted that the power to re-open an appeal is not to be exercised for the purpose of re-agitating arguments already considered by the Court, or because the party seeking the reopening had failed to present arguments as well as they might have been put. The Crown contended that the applicant had not established that the orders accompanying the principal judgment do not reflect the Court's intention, or that the Court gave judgment in ignorance or forgetfulness of some fact or statutory provision. It was submitted that the applicant had the opportunity for full argument of his original grounds of appeal, and that the Court considered and adjudicated upon each of his grounds of appeal. The Crown identified the relevant passages of the principal judgment addressing each ground of appeal. It also relied on those passages to address the applicant's complaints in relevant respects.
[8]
Legal principles
It is well established that, subject to any right of appeal conferred by statute, decisions of a Court are final and not subject to re-agitation. As the High Court (Gleeson CJ, Gummow Hayne and Heydon JJ) stated in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1:
"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 the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding.
35 The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called 'fresh evidence rule') are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: '[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial'." (citations omitted)
In addition to the matters referred to by the plurality, there are other well established qualifications to the finality principle, the inherent jurisdiction of the Court to correct accidental slips and errors in its reasons for judgment being one such example: Burrell v The Queen [2008] HCA 34; 238 CLR 218 at [21]; R v Green and Quinn [2011] NSWCCA 71; R v Ly (No 2) [2014] NSWCCA 91 at [5]. The slip rule is now usually found in rules of court. However, as the plurality in Burrell observed, at [21], the slip rule, either as a rule of court or as part of a court's inherent jurisdiction, is directed to correcting the record so that it accords with what the court did or intended to do. Importantly, as the plurality observed, the slip rule "does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded".
In addition to the slip rule, in New South Wales there are various rules of court that permit a court in civil proceedings to set aside or vary a judgment or order: see, for example, UCPR, r 36.16. UCPR, r 36.16(3A) permits the court to set aside or vary a judgment or order, notwithstanding the entry of judgment, provided that a notice of motion is filed within 14 days of the making of the order or the giving of the judgment and provided the court considers it appropriate to do so. Similar rules are to be found in other jurisdictions.
In Burrell, the High Court held that the Court of Criminal Appeal had no inherent power to re-visit a decision made on an erroneous view of the facts. Rather, the Court approved the description of the jurisdiction of the Court of Criminal Appeal given by Dixon J in Grierson v The King [1938] HCA 45; 60 CLR 431 at 435, as follows:
"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 of 1912 N.S.W. … does not give a general appellate power in criminal cases exercisable on grounds and by a procedure discoverable from independent sources."
Until its introduction on 30 August 2007, there was no rule in the Criminal Appeal Rules to the effect of r 50C. Rule 50C(1) and (2) replicate UCPR, r 36.16(3A). The Explanatory Note to the Rule was in the following terms:
"The object of these Rules is to amend the Criminal Appeal Rules so as to require orders under the Criminal Appeal Act 1912 to be entered, and to enable them to be set aside and varied, in ways similar to those for judgments and orders under the Civil Procedure Act 2005."
Since its introduction, r 50C has been the subject of consideration by this Court on a number of occasions. In Baghdadi v R (No 2) [2012] NSWCCA 77 the applicant sought, pursuant to r 50C, a reconsideration of the Court's orders on the basis that the Court had not considered the applicant's second ground of appeal. The Court proceeded on the basis that failure to consider a ground of appeal, in that case in relation to tendency evidence, was within the purview of r 50C. As Campbell JA, with whom R S Hulme and Hoeben JJ agreed, stated at [5]:
"… the Court should have given separate consideration to the second ground of appeal."
Upon considering that ground of appeal, the Court determined that it would not have been open to the jury to be satisfied beyond reasonable doubt that the applicant had committed either of the robberies with which he had been charged. Accordingly, the Court revoked its previous order dismissing the appeal and ordered that in lieu of the conviction in the court below, a verdict of acquittal be entered on each charge.
The genesis of r 50C and the authorities in this Court were reviewed in detail by the Court in Gall (No 2). Hoeben JA (with whom R A Hulme and Davies JJ agreed), at [28], stated that:
"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."
Nonetheless, his Honour acknowledged, at [28], that the rule was not confined to that circumstance, further observing r 50C had 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 …
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 …
When the Court had not considered a ground of appeal …
To effect the orders proposed in the reasons for judgment with the correct calculation of the aggregate head sentence …
To restructure sentences to achieve an aggregate non-parole period which reflected the Court's intention …
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 …" (citations omitted)
Special leave to appeal from this decision was refused: Gall v The Queen [2016] HCATrans 28 (12 Feb 2016).
In the course of his Honour's reasons in Gall (No 2), Hoeben JA referred to Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69, noting that in that case the Court considered that the applicant was seeking to re-open the appeal so as to remedy deficiencies in the material presented at the hearing of the appeal. His Honour referred to the observation in Alramadan (No 2), at [12], that such an approach "would appear to fall squarely within the impermissible purpose of seeking 'by a backdoor method' to reargue an unsuccessful appeal".
Subsequently, in Miller v R [2015] NSWCCA 205, Adams J, with whom Hoeben CJ at CL and Hidden J agreed, observed, at [39], that:
"The fundamental rule is that there is no jurisdiction to rehear an appeal once determined, even before actual or constructive entry of judgment …"
Adams J acknowledged, also at [39], that:
"… 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."
Adams J also cautioned against the prospect of "backdoor appeals", continuing:
"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 have a backdoor appeal."
In Clark v R [2015] NSWCCA 265, this Court again reviewed the authorities relating to r 50C, observing, at [15], that:
"Underlying the narrow scope of r 50C is the central importance to the rule of law that controversies, once resolved, are not to be reopened except in limited circumstances."
The Court in Clark referred to the statement of French CJ, Crennan, Kiefel and Bell JJ in Achurch v The Queen [2014] HCA 10; 253 CLR 141 at [16]:
"The principle of finality forms part of the common law background against which any statutory provision conferring power upon a court to re-open concluded proceedings is to be considered."
See also Application of Malcolm Potier at [62].
[9]
Consideration
As the authorities discussed above establish, r 50C is not directed to the re-agitation of an appeal. It is apparent from the arguments advanced by the applicant that he seeks to re-agitate issues that were argued on the original appeal. This is apparent from para (7) of his affidavit, in which he makes submissions as to the ramifications of the facts to the prosecution case and even more so by the matters raised in para (8), in which the applicant purports to identify "[e]rrors of fact and law in the evaluation of the applicant's grounds and submissions of appeal". The applicant's supplementary written submissions and his oral submissions effectively traversed the same matters.
Except in limited respects, namely, the evidence of Mr Badrous, to which separate reference is made below, and certain case law, each of the matters raised by the applicant were considered by the Court in its principal judgment.
[10]
The voice identification evidence
In his affidavit submissions, the applicant pointed out that most of the voice recognition witnesses had only had brief conversations with him; that the acoustics in the courtroom where his voice had been recorded were different from the acoustics of the room in which the other recordings were made; and that as he had not given evidence, the jury were not able to compare his voice with those on the tapes and where three witnesses had not identified his voice.
As is apparent from the Court's reasons in the principal judgment at [62] ff, similar, if not identical, arguments were advanced on the appeal. The Court dealt with the applicant's complaints at [100] ff.
The Court did not, in the principal judgment, refer to Bulejcik, to which reference was made in the applicant's submissions on the appeal. However, a failure by the Court to refer to a particular case in the course of its reasons does not constitute an oversight of the kind to which r 50C is directed. It may be different if the authority to which no reference is made in a judgment formed a substantial part of the applicant's case and was otherwise relevant.
That cannot be said of Bulejcik. As McHugh and Gummow JJ pointed out, at 401, the principal question in the appeal in that case was whether, after the conclusion of the summing up in a criminal trial, the jury may listen to a recording of the accused's unsworn statement for the purpose of determining whether a voice on another recording was the voice of the accused. Their Honours held that that course was impermissible, unless the recording of the accused's unsworn statement had been tendered as evidence in the trial and the accused had been provided with the opportunity to meet any argument the Crown may have advanced based on the recording.
Whilst it is to be acknowledged that there were statements in the joint reasons of Toohey and Gaudron JJ as to what was required for voice identification evidence to be cogent, including the statement, at 394-395, that:
"[w]here a witness identifies a voice on the basis of having heard it subsequently, there should be something about the voice at the crime scene to sufficiently embed it in the witness's memory so as to enable him or her to say that it is the same as a voice which he or she heard subsequently. The greater the distance in time between when the two voices compared were heard, the greater the desirable degree of familiarity or distinctiveness"
their Honours concluded, at 398-399, that when the jury was asked to make a comparison in the circumstances that arose in that case, careful directions were called for. At 397-398, their Honours indicated that those directions should include reference to those factors which may affect the consideration of the evidence in the circumstances of the particular case: see Domican v The Queen [1992] HCA 13; 173 CLR 555.
The bases upon which the voice identification evidence was challenged by the applicant on appeal were identified in the principal judgment at [38]. The applicant does not now contend that those matters were not dealt with. Further, no complaint was made on the appeal as to the directions given by the trial judge to the jury in respect of the voice identification evidence: see principal judgment at [53].
The applicant in his affidavit submissions also referred to the decision of this Court in Korgbara. The matter in issue in that case was voice identification from evidence of a person speaking in a foreign language. The applicant did not rely upon Korgbara in his argument on the appeal and appropriately so, as it was irrelevant to the issues that were argued.
[11]
The visual identification evidence
The Court in the principal judgment dealt with the appeal in relation to the photographic evidence (ground 4 in the notice of grounds of appeal) at [109] ff. In his submissions on the appeal in respect of that ground, the applicant complained of the poor quality of the photographs and the fact that his appearance was different from what it was at the time of the trial. The Court dealt with those matters in the principal judgment at [112]. The applicant did not, on the appeal, raise the matters to which he now refers in para (8.10), subparas (3), (4), and (5). Had he done so, those arguments would have been rejected for the reasons given by the Court at [112] of the principal judgment. Further, there was no necessity for expert evidence of facial mapping to be adduced by the Crown. Subject to duties of prosecutorial fairness, the Crown is not obliged to obtain evidence that the accused contends might assist the accused's case. This is even more so where the accused person only raises the issue after the appeal has been determined. In any event, serious doubts have been expressed as to the admissibility of this form of evidence: Tang; Morgan v R [2011] NSWCCA 257.
[12]
The evidence of Mr Badrous
One matter to which the Court did not refer in its principal judgment was the evidence of Mr Badrous. That was not surprising. The evidence of Mr Badrous was not raised in any substantial way by the applicant in either his written submissions on the appeal or in his oral argument in chief before the Court on the hearing of the appeal. Brief mention of Mr Badrous' evidence was made by the Crown in oral submissions on the appeal. As the Crown drew to the Court's attention, the Crown at trial acknowledged that Mr Badrous gave evidence by way of induced statements. The Crown submitted to this Court, as was its submission at trial, that it accepted that there were credibility issues in respect of Mr Badrous' evidence. The applicant's counsel on the appeal responded to this submission on 11 September 2014:
"TYNDALL: The only thing I would actually refer to, my learned friend has mentioned in his evidence Mr Badrous, and if I refer you to the trial summary 2003 the Crown has already acknowledged Mr Badrous did give evidence through induced statements. It is our submission, and it was at the trial, that any evidence relied on by Mr Badrous, at best, would have issues to do with credibility.
HAMILL J: There were extensive directions acknowledging that.
TYNDALL: Nothing further."
It should also be noted that the trial judge gave extensive directions in relation to Mr Badrous' evidence, including, as Hamill J observed, in respect of its credibility.
Finally, it should be noted that there was no reference in the appeal to what is now raised by the applicant, that Mr Badrous had pleaded guilty to fraud related offences involving a loan application to Ms Candido, who was one of the voice recognition witnesses. The applicant contended that the only person that had spoken to Ms Candido in relation to the security property in relation to Rugby House was George Badrous.
As we have explained, the authorities are clear that the power under r 50C to re-visit an appeal cannot be used for the purposes of re-agitating the appeal. A fortiori, the power under r 50C to re-visit an appeal cannot be used in order to raise new matters that were never the subject of the appeal.
[13]
The handwriting evidence
The Court in the principal judgment dealt with the appeal in relation to the handwriting evidence (ground 5 in the notice of grounds of appeal) at [130] ff. The applicant, by his submissions on the appeal, challenged the methodology adopted by the handwriting expert, Mr Westwood and contended that the handwriting evidence, and the opinions of Mr Westwood, should not have been accepted: principal judgment at [142]-[145]. The matters raised by the applicant in oral argument on this application covered much the same ground as his submissions on the appeal. As this Court made clear in the principal judgment at [146], it was for the jury to determine whether they were satisfied that some or all of the specimen documents contained handwriting of the accused. Likewise, the jury was entitled to give such weight as they saw fit to the opinion evidence of Mr Westwood.
[14]
The alibi evidence
Both in his supplementary written submissions and in his oral submissions the applicant contended there was photographic evidence of him taken at Bateman's Bay on the day the applicant was identified as having been at the Airport Mercure Hotel on 19 January 2001. The applicant pointed to a date stamp of 19 January 2016 on the bottom right hand corner of a photograph which he identified as Exh 7 at trial. The Crown pointed out that Exh 7 had been tendered and admitted into evidence with the date having been cut off the bottom right hand corner by the defence. A copy of Exh 7 as tendered was provided to the Court. The Crown also pointed out that no case based on alibi evidence had been raised at the trial and no alibi notice had ever been served.
[15]
The relevance of the High Court's decision in IMM
It remains to consider the impact of the High Court's decision in IMM. As noted above at [9], the applicant contended that, had the principles in IMM applied, he would have conducted his trial and appeal on a different basis. In this regard, the applicant initially contended that the principal judgment was determined "upon the fact that Shamouil's case applied which now it does not". That is, the applicant sought to impugn the principal judgment, and its reliance on Shamouil, as contrary to the approach of the High Court in IMM. When it was suggested that Shamouil is still good law, the applicant nonetheless maintained that, in light of IMM, he would have conducted his trial and appeal on a different basis.
It should be emphasised at the outset, as has been stressed above, that the jurisdiction to re-open which we are here asked to exercise is a limited one. It may be accepted that, as Mason CJ indicated in Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300 at 303, misapprehension of fact or law may, in an appropriate case, provide sound basis for acceding to an application to re-open. However, the applicant's submissions in reliance on IMM do not reveal misapprehension of law in the principal judgment. At [46] of the principal judgment, this Court described Shamouil as holding that:
"The Court (Spigelman CJ, Simpson and Adams JJ agreeing) held that, subject to the limited circumstances referred to below, s 137 is not concerned with the credibility or reliability of the evidence sought to be adduced. Rather, the assessment of the probative value of the evidence should be approached on the assumption that the evidence would be accepted."
The Court went on, at [48], to set out the "limited circumstances" envisaged in the passage above, and, at [49], to set out the meaning of "unfair prejudice" as it was understood in Shamouil.
In IMM, the majority (French CJ, Kiefel, Bell and Keane JJ) held, at [52], that:
"Once it is understood that an assumption as to the jury's acceptance of the evidence must be made, it follows that no question as to credibility of the evidence, or the witness giving it, can arise."
At [54], their Honours said "[t]he Evidence Act contains no warrant for the application of tests of reliability or credibility in connection with ss 97(1)(b) and 137". At [58], their Honours concluded:
"It would not seem to be necessary to resort to an assessment of the reliability of evidence of this quality for it to be excluded under s 137. For the reasons already given, evidence which is inherently incredible or fanciful or preposterous would not appear to meet the threshold requirement of relevance. If it were necessary, the court could also resort to the general discretion under which evidence which would cause or result in an undue waste of time may be rejected."
There is nothing in these passages, or elsewhere in the majority decision in IMM, that supports the proposition that the approach taken in the principal judgment would have been different had IMM been decided before consideration of the applicant's appeal. Nor is there anything in support of the submission that the applicant may have conducted the trial or appeal differently as a consequence of the decision in IMM. It should be noted that it was made clear, at [51] of the principal judgment, that "the outcome would be the same if the principles in Dupas v R [2012] VSCA 328 were applied to the case". It was the conflict between that case and Shamouil with which the High Court was concerned in IMM. In any event, as is apparent from [100]-[108] of the principal judgment, the Court's consideration in this context was primarily directed to the "unfair prejudice" limb of s 137.
[16]
The SKA issue
Finally, it is necessary to deal with the applicant's submission that the principal ground of his appeal was that the verdict was unreasonable having regard to the evidence. We point out that the question as to whether the verdict was unreasonable was dealt with in the principal judgment at [150]-[166]. In that part of the principal judgment, we considered the principles that apply when an "unreasonableness" ground is raised. We also pointed out, by reference to the submissions that were made on the appeal in respect of this ground, that rather than it being "the principal ground" of the appeal, there was considerable doubt as to whether it was a ground of appeal at all.
What was apparent was that the applicant challenged the specific aspects of the evidence that the Court dealt with in its principal judgment and which the applicant has sought to re-agitate on this application. The one exception to that statement is the evidence of Mr Badrous, which was not raised either as a ground of appeal or in any argument by the applicant on the hearing of the appeal.
The Court identified, at [161] of the principal judgment, the thrust of the applicant's unreasonableness ground as concerning the voice identification evidence, the visual identification evidence and the handwriting evidence. The approach taken by the Court in considering the applicant's arguments on this ground is evident from [162]-[163] of the principal judgment:
"162 On the assumption that an 'unsafe' ground was pressed, we consider that in the highly unusual circumstances of this case, having regard to the way in which the appeal was argued, this ground is appropriately and fully considered by reference to the evidence in respect of these three matters. We are further satisfied that it is appropriate to do so as this evidence was the central evidence upon which the Crown case was based.
163 We have read the evidence relating to these aspects of the Crown case, not limited to those pages of transcript that the appellant identified as being relevant to his grounds of appeal. The voice identification evidence was strong evidence implicating the appellant as the maker of the various telephone calls that were part of the conduct subject of the charges. This is so notwithstanding that three witnesses could not identify, or wrongly identified, a voice as that of the appellant and some witnesses were less sure than others as to whether the voice they identified was that of the person who had telephoned them."
In this regard, it is important to understand the context in which the High Court stated in SKA, at [22], that:
"… the task of the Court of Criminal Appeal was to make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported."
The relevant context in which that remark was made is found in the last sentence of [22], where their Honours stated:
"The reasons for judgment by Simpson J do not disclose that the Court of Criminal Appeal made an independent assessment of the evidence concerning the … offences, and therefore the Court could not weigh the competing evidence to determine whether the verdicts of guilty could be supported."
It was apparent to the Court, and it remains our position, that the basis upon which the applicant challenged his verdict related to the voice recognition evidence, the photographic evidence and the handwriting evidence. It was the evidence in relation to those matters that the Court considered in its principal judgment, having regard to the particular challenges that were directed at that evidence.
[17]
Conclusion
Having regard to the principles governing applications under r 50C, as applied to the matters advanced by the applicant, the Court has determined that the applicant's notice of motion must be dismissed.
[18]
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Decision last updated: 10 August 2016
Per the Court:
(1) Rule 36.16 of the Uniform Civil Procedure Rules is of no application in relation to a criminal appeal. [19]
(2) Subject to certain well-established qualifications, decisions of a court are final and not subject to re-agitation. [39]-[41]
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1; Burrell v The Queen [2008] HCA 34; 238 CLR 218; R v Green and Quinn [2011] NSWCCA 71; R v Ly (No 2) [2014] NSWCCA 91.
(3) Rule 50C of the Criminal Appeal Rules is not directed at a re-agitation of unsuccessful appeals. Having regard to the principle of finality of litigation, r 50C is a rule of limited application. The rule is primarily directed at correcting slips, mistakes and infelicitous language. The rule also applies where a court failed to deal with an issue that had been argued. [42]-[53]
Achurch v The Queen [2014] HCA 10; 253 CLR 141; Alramadan v DPP (NSW) (No 2) [2008] NSWCCA 69; Baghdadi v R (No 2) [2012] NSWCCA 77; Gall v R (No 2) [2015] NSWCCA 152; Miller v R [2015] NSWCCA 205; Clark v R [2015] NSWCCA 265; Application of Malcom Potier [2015] NSWCCA 199.
(4) The arguments advanced by the applicant involved an attempt to re-agitate issues dealt with in the original appeal. That purpose was beyond the purview of r 50C.
Judgment
THE COURT: On 3 August 2015, this Court dismissed an appeal brought by Mr Miller (the applicant) against his convictions for one count of dishonestly obtaining a financial advantage by deception contrary to the Crimes Act 1900 (NSW), s 178BA and 20 counts of using a false instrument contrary to the Crimes Act, s 300(2): Miller v R [2015] NSWCCA 206 (the principal judgment).
By notice of motion filed 7 August 2015, the applicant sought an order pursuant to the Criminal Appeal Rules, r 50C and the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.16 that the judgment and order of the Court of Criminal Appeal be set aside. The application was filed within the 14 day period specified in r 50C(3).
The applicant also sought consequential orders that the appeal be reopened and re-determined and that the Court receive further submissions on the appeal. Additionally, the applicant sought the grant of unconditional bail and an order that all Justices of the Supreme Court of New South Wales be disqualified from hearing and determining all applications and appeals brought by the applicant.
In support of his notice of motion, the applicant filed an affidavit sworn 23 November 2015. The affidavit, in effect, comprised the applicant's submissions on the notice of motion. The applicant subsequently filed written submissions dated 24 May 2016. The Crown filed written submissions on 25 May 2015. The applicant and the Crown also made oral submissions on 3 June 2016.
The adjournment application
The applicant applied for an adjournment on three bases. First, that he wished to have legal representation but that the barrister whom he had either consulted or retained, it was not clear which, was unavailable. The applicant informed the Court that he had spoken with the barrister about two weeks before the hearing. Secondly, that the High Court had recently handed down its decision in IMM v The Queen [2016] HCA 14 and that, although he had received some legal advice in respect of the implications of that decision for his matter, he wished to have further legal advice on that subject. The third was that he had only recently been served with the Crown's submissions and that those submissions had not been filed in accordance with the timetable set by the Court for the filing and service of submissions.
The Court refused the adjournment. This matter was set down for hearing some two months prior to the hearing date on 3 June 2016. The applicant did not provide evidence or otherwise explain why he had not obtained legal representation earlier than two weeks prior to the date set for the hearing of his application. It was unclear whether the applicant had in fact retained a solicitor. In any event, there was no evidence, or explanation, as to what steps the applicant had taken to do so or why he had been unable to retain legal representation for the purposes of the hearing of the application.
The Court is satisfied that the applicant's wish to obtain further legal advice in respect of the implications of IMM does not provide an appropriate basis for an adjournment, whether alone or in combination with the other matters advanced by the applicant. The High Court gave judgment in IMM on 14 April 2016, some two months prior to the hearing of this application. The applicant contended during oral argument that, had the law as expounded in IMM been applied, he would have adopted a different forensic approach in the conduct of his trial and defence. The applicant initially impugned the principal judgment on the basis that R v Shamouil [2006] NSWCCA 112 is no longer good law in light of IMM. Even after accepting that may not be the case, the applicant maintained that he would have conducted his defence and appeal "on a completely different basis" in light of the decision in IMM. The applicant indicated that he had had a legal opinion on the decision in IMM, but that he "needed to have that formalised in terms of what the submissions would be" in the present application.
The third matter related to the applicant's assertion that the Crown had not complied with the timetable for filing and serving its submissions. The Crown tendered a series of facsimile transmissions to and from the institution where the applicant was detained in relation to the service of its submissions. Importantly, one such facsimile transmission was an acknowledgement of service of the Crown's submissions which was signed and dated by the applicant. The applicant stated to the Court that although he had signed that acknowledgement, he in fact had not received the Crown's submissions on the date stated in the acknowledgement of service. Nonetheless, the applicant did inform the Court that he had received the Crown submissions on Sunday, 28 May 2016, but that he had not opened them.
The recusal application
The applicant was informed that the Court as constituted did not have the power to order or direct the recusal of any other judge and that it was a matter for each individual judge to consider any such application as and when it might be made: Vakauta v Kelly [1989] HCA 44; 167 CLR 568 per Toohey J at 587.
At that point, the applicant made the specific application that each of the members of the bench recuse themselves. Two bases were advanced for this application. The first was that the members of this Court had heard and determined his appeal so that it was likely that we each individually would seek to uphold our determination. The applicant submitted that independent judicial minds should be brought to bear on his application. Specific submissions were made in respect of Fullerton J, in respect of whom the applicant submitted:
"… there seems to me to be a very distinct antipathy held by a number of justices in the Supreme Court. Every time I try to open my mouth her Honour Fullerton J seems to be on the edge of ramming me into the wall. Now I don't know what you might think I've done to this Court or to the justices I've always held the system in the highest esteem. And with the greatest of respect, but your manner is clearly demonstrable of antipathy, personal toward me. Now if that's the case you really should not be appearing on this quorum to hear any application that I make."
The first basis must be rejected. It is not uncommon that the judges who constituted the court hearing an appeal will also constitute the court determining an application brought under the Criminal Appeal Rules, r 50C. See, for example, Buadromo v R (No 2) [2011] NSWCCA 55; R v AB (No 2) [2011] NSWCCA 256; R v Green and Quinn [2011] NSWCCA 71; Alkawi v R (No 2) [2013] NSWCCA 72; R v Ly (No 2) [2014] NSWCCA 91; Gall v R (No 2) [2015] NSWCCA 152; Application of Malcolm Potier [2015] NSWCCA 199; and Humphries v R; Ponfield v R (No 2) [2016] NSWCCA 91. Cf PFC v R (No 2) [2014] NSWCCA 241 and Miller v R [2015] NSWCCA 205. There are many advantages in this practice, particularly where it is contended that the court on the appeal failed to deal with an argument advanced by the applicant. In such a case, if the submission is accepted, the court that heard the appeal will be in a position to deal with the outstanding argument. But in any event, it is consistent with the purpose of the rule that an application made under r 50C be determined by the same members of the court who heard the appeal.
We each considered our respective positions in relation to this basis for the requested recusal and we each individually refused the application during the course of the hearing on 3 June 2016. The reasons for having done so are essentially the same reasons we have just given in relation to the hearing of an application under r 50C. The fact that the Court is constituted by the same three Judges who heard the original appeal does not give rise to a reasonable apprehension of bias. There is no basis to find that a "fair minded lay observer" might reasonably apprehend that the individual judges might not bring an impartial and unprejudiced mind to the resolution of the r 50C application: Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [11].
The Court was satisfied that, in the circumstances, the applicant had had every opportunity to prepare the matter for hearing on 3 June 2016 and, accordingly, dismissed the application for the adjournment. We would note that it was apparent from the manner in which the applicant was able to present his argument that he was fully prepared to present his case to the Court. The applicant provided the Court with both primary and supplementary written submissions, and was articulate in oral argument. There was clear evidence that the applicant had received the Crown's written submissions, which he had decided not to read. The applicant indicated he had had some legal advice in relation to the decision in IMM. In the absence of any evidence or explanation as to what steps the applicant had taken to obtain legal advice in the period after this application was set down for hearing, or indeed since the decision of the High Court in IMM, there was no basis for acceding to the adjournment application.
The second basis must also be rejected. The applicant asserted during oral argument that "there seems to … be a very distinct antipathy held by a number of justices of the Supreme Court", and further contended that the manner of the Court was "demonstrable of antipathy" towards him. There can be no dispute that impartiality is fundamental to the administration of justice. In this regard, it is well settled that a judge should not hear a case if, in all the circumstances, a fair minded lay observer might reasonably apprehend that the individual judge might not bring an impartial and unprejudiced mind to the disposition of the matter at hand. However, a bare assertion of bias, actual or apprehended, does not of itself require recusal. Rather, it is necessary for the party making the application to articulate the logical connection between the matter it is suggested will lead the judge to decide a case other than on the merits, and the feared deviation from the course of deciding the case on its merits.
We each affirm our respective decisions made during the course of the hearing, declining to recuse ourselves on the basis of asserted individual antipathy towards the applicant. As we have already observed in relation to the adjournment application, the applicant was well prepared to present his case to the Court, as evidenced both in the manner in which he presented his oral argument, and in providing both primary and supplementary written submissions. As the transcript discloses, the applicant was able to fully argue his application without any undue questioning or interruption by the Bench.
In response to Mr Miller's assertions directed to Fullerton J, her Honour points out that some five questions or remarks were directed by her to Mr Miller over five pages of transcript. The first three questions challenged Mr Miller as to whether he had elected not to read the documents that had been served on him by the Crown. The remaining two questioned Mr Miller on his understanding of the decision in IMM. Having regard to the matters that Mr Miller was putting to the Court, this questioning was both appropriate and reasonable.