[1993] HCA 6
Baghdadi v R (No 2) [2012] NSWCCA 77
Burrell v The Queen (2008) 238 CLR 218
[2007] HCA 51
Kauwenberghs v R (Cth) [2009] NSWCCA 201
Kentwell v R (2014) 252 CLR 601
[2014] HCA 37
Miller v R (No 2) (2016) 260 A Crim R 554
Source
Original judgment source is linked above.
Catchwords
[1993] HCA 6
Baghdadi v R (No 2) [2012] NSWCCA 77
Burrell v The Queen (2008) 238 CLR 218[2007] HCA 51
Kauwenberghs v R (Cth) [2009] NSWCCA 201
Kentwell v R (2014) 252 CLR 601[2014] HCA 37
Miller v R (No 2) (2016) 260 A Crim R 554
Judgment (8 paragraphs)
[1]
The application in respect of the conviction appeal
The applicant's submissions propounded the following four "reasons" for granting leave and allowing the application:
1. failure to consider ground 4 of the grounds of appeal, which was that "the applicant was denied a chance of acquittal that was fairly open to him on one or more of the 24 counts on the indictment as a result of the conduct of the trial as a whole";
2. failure to comprehend the basis of the trial decision in two fundamental ways;
3. misapprehension of four material factual circumstances; and
4. misapprehension of seven questions of law (although only six were identified in the submissions).
As will appear, the first reason is misconceived, and the others are an impermissible attempt to utilise a r 50C application to seek to reargue an unsuccessful appeal or to present new arguments and issues that were not agitated in the appeal.
[2]
Reason 1 - failure to consider ground 4
The applicant submitted that this Court had failed to exercise its jurisdiction by not considering and determining Appeal Ground 4. He submitted:
"3. Brereton JA at [97] stated "ultimately the applicant pressed ground 4 (applicant denied a chance of acquittal that was open to him) only insofar as ground 1A was sustained. As no appealable [sic] error has been established, the ground requires no further consideration. This ground [of appeal] fails."
4. His Honour's statement at [97] is unequivocally false. It is not the truth. The applicant's senior counsel, Mr Stratton, did not limit, waive or abandon the appellant's ground 4."
The applicant's Notice of Appeal contained the following four grounds:
1. the trial judge misdirected the jury as to the elements of an offence contrary to s 184(2)(a) of the Corporations Act;
2. the trial judge erred in admitting evidence of the Perpetual Loan and the applicant's gambling-related activities because that evidence was not relevant or was otherwise inadmissible;
3. the trial judge erred in refusing to admit evidence that supported the applicant's case at trial; and
4. the applicant was denied a chance of acquittal that was fairly open to him on one or more of the 24 counts on the indictment, as a result of the conduct of the trial as a whole.
At a late stage, the grounds of appeal were amended, with grounds 2 and 3 being abandoned, and the following new ground 1A, which became the main focus of the appeal, being added:
(1A) the trial miscarried because the jury was not directed that in order to be satisfied that the applicant was guilty of the charges, the jury would have to be satisfied beyond reasonable doubt that the applicant did not have an honest belief that he was entitled to the funds paid to him or at his direction.
At the hearing of the appeal before this Court, the applicant was represented by experienced senior counsel, who, in respect of ground 4, said (emphasis added): [16]
"Your Honours grounds 2 and 3 are abandoned and ground 4 is only relied on insofar as it's now argued under ground 1A which I'm seeking leave to add to the grounds of appeal."
Then, after concluding argument on ground 1A, senior counsel said (emphasis added): [17]
"In relation to ground 1 I wasn't proposing to add anything to the written submissions. The Court has heard me in relation to ground 1A. Grounds 2 and 3, as indicated, are abandoned. Ground 4 is only relied on insofar as its - in effect ground 4 has been expanded into ground 1A and I don't otherwise rely on it. Those are the submissions in relation to conviction. Does the Court wish me to move on to the sentence appeal?"
These passages show that the statements in the judgment of Brereton JA impugned by the applicant as "unequivocally false" and "not the truth" were indeed accurate, and that contrary to the applicant's submission, his senior counsel did limit, waive, and abandon ground 4, to the effect that it relied only on the issue argued under ground 1A, being a complaint the trial miscarried because the jury was not directed that in order to be satisfied that the applicant was guilty of the charges, the jury would have to be satisfied beyond reasonable doubt that the applicant did not have an honest belief that he was entitled to the funds paid to him or at his direction.
In Simmons, when considering whether a particular ground of appeal had been pressed on the hearing of the appeal in circumstances where, though expressed as a separate ground in the Notice of Appeal and separately addressed in the appellant's written submissions, it was conceded in oral argument to be the "corollary" of other grounds, the Court explained: [18]
"It is important to recognise the value of oral argument in appeals before this Court. While frequently counsel indicate that they rely on their written submissions, the hearing of an appeal is dynamic. Positions taken and submissions made in writing may be confirmed, varied or abandoned by counsel in the course of a hearing. These changes may arise as a result of further reflection by counsel or as a consequence of questions asked by the Bench or matters raised in opposition by other counsel. The Court is entitled to act on the basis of those concessions and decide the appeal or application accordingly. The principle that an accused is bound by the conduct of his or her counsel at trial (R v Birks (1990) 19 NSWLR 677; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [8] (Gleeson CJ) and [79] (McHugh J)) also applies in the different context of appeals."
In the present case, the Court did not further consider ground 4, because as ultimately pressed it depended only on ground 1A, which failed. This involved no slip, oversight, or misapprehension. This "reason" does not provide even a faintly arguable basis for re-opening the appeal.
[3]
Reason 2 - failure to comprehend the basis of the trial decisions
The applicant complains that this Court failed to comprehend the basis of the decision at trial in two respects: first, that in the trial the evidence was not "allocated" to any of the four essential elements of each of the 24 offences, without which it was not possible to comprehend the basis of the verdict; and secondly, that the trial judge allowed the jury to decide questions of law as to the legal contractual relationships among the parties, including the applicant's claim of a quantum meruit, whether moneys were held in trust by TZL for another party, and whether invoices sent by the applicant to TZL evidenced "a definite contractual relationship".
These are essentially complaints about the trial judge's directions to the jury. Neither of these matters was the subject of a ground of appeal, and so there was no occasion for this Court, when considering the appeal, to have addressed them. This "reason" involves an impermissible attempt to reargue the appeal, on grounds not previously advanced.
[4]
Reason 3 - misapprehension of factual circumstances
The four significant matters that this Court was said to have misapprehended were:
1. the nature of the contractual relationship between the applicant and TZL;
2. that significant amounts of money paid to TZL were funds held on trust by TZL for the applicant, so that TZL did not suffer any detriment and the applicant gained no benefit from their appropriation;
3. that the applicant's evidence refuting motive was ignored; and
4. that the majority of the payments to and for the benefit of the applicant were not effected by the applicant but by other directors of TZL.
These matters had been relied on by the applicant at trial to refute the prosecution case that he acted "dishonestly". They savour of arguments which might have been advanced on an appeal on the ground that the jury's verdict, which apparently accepted the prosecution case, was unreasonable. However, the Notice of Appeal contained no such ground of appeal. In the absence of an "unreasonable verdict" ground, there was no occasion for this Court to do more than address the specific grounds that were advanced and relied upon. This "reason" is an impermissible attempt to reargue the appeal, on grounds not previously advanced.
[5]
Reason 4 - misapprehension of questions of law
The questions which this Court was said to have misapprehended were that:
1. the Court was unable to determine if the claim of right defence was available for each of the 24 counts, because neither the trial judge nor the prosecution allocated any evidence to the determination of the claim of right for each and every count;
2. the Court did not understand that the threshold issue of the legal entitlement of the recipients to the moneys or shares was not determined by the trial court;
3. the circumstance that the applicant could be both a director and a capital raising consultant was never determined;
4. the Court ignored the legal consequence of the applicant's argument that the moneys paid to him were payable pursuant to a claim of quantum meruit;
5. the various moneys received by TZL were held on trust for the applicant; and
6. it was not legally possible for the applicant as a de facto director to effect the relevant transactions. The Court misunderstood the issue of causation: the prosecution's case was that the applicant caused all 24 payments of money or share issues, and had to prove that he somehow legally effectuated each transaction, having regard to the relevant corporate constitution and the Corporations Act; but the Court confused the applicant's influence over TZL's directors with the requirement of causation, and the circumstance that he requested payments does not mean that he caused TZL to make payments.
As to (1), the issue in the appeal on the question of "claim of right" was that raised by ground 1A, which was whether the trial judge's directions were inadequate by reason that they did not refer to the defence of claim of right. The Court concluded that they were not inadequate, because there was no requirement for a direction that the applicant could be convicted only if the jury were satisfied that he did not have an honest belief that he was entitled to the funds paid to him or at his direction: a defence in the nature of a 'claim of right' is logically incompatible with an offence containing a dishonesty element, and directions as to such a defence were unnecessary and inappropriate. [19] The ground of appeal did not require the Court to determine whether a claim of right defence was available, in respect of all or any of the offences, upon the evidence at trial.
As to (2), the jury's verdict, by deciding that the applicant acted dishonestly, when the prosecution case was that his dishonesty was his knowledge that he was not entitled to the money or shares, necessarily rejected the proposition that the recipients (the applicant and his companies) were legally entitled to them. Although this was not the subject of a ground of appeal, it was incidentally addressed in the principal judgment in the course of consideration of ground 1A (which was concerned with the adequacy of the directions as to "claim of right"), as follows: [20]
"However, it is not correct that the dishonesty relied on by the Crown was "various deceptions by [the applicant]"; the dishonestly alleged was that the applicant knew that he was not entitled to the relevant shares and moneys. The charge and the case, so articulated, if accepted, was incompatible with a defence of 'claim of right'. The jury were in effect directed that the Crown had to establish that the applicant knew that he was not entitled to cause the transfer of funds (or issue of shares). The jury's verdict implicitly rejected the applicants' justification for the funds transfers and share issue."
No slip, oversight, or misapprehension is involved.
As to (3), (4), and (5), these matters were not the subject of any ground of appeal, and were not argued in the appeal. The applicant's submissions do not identify any passage in this Court's judgment where any of the alleged misapprehensions was expressed. This Court was not required to, and did not, address these issues, because none of them was raised by the Notice of Appeal, and there was no unreasonable verdict ground. Again, this is an impermissible attempt to reargue the appeal, on grounds not previously advanced.
As to (6), this matter was not the subject of any ground of appeal, though again it was addressed incidentally in the course of consideration of ground 1 (the substance of which was a complaint that the directions given to the jury were inadequate, "because they erroneously conflated the physical element (use of position as a director) with the mental element of dishonesty, and that the failure to indicate to the jury that these were independent elements which required separate consideration was exacerbated by the absence of any reference at all in the summing up to the 'use of position' element"). In considering the adequacy of the directions in the circumstances, the Court observed that it was not an issue at trial that the transactions did not involve a use by the applicant of his position as a director, the predominant issue being whether the use was a dishonest one; and the inference that the transactions were a manifestation of a use by the applicant of his position was inescapable, from the circumstance that his only role in and connection with the company was as a director, and from the flow of funds to the benefit of him or his companies. This was a considered view of the Court, for which reasons were given. [21] The applicant's complaint is, in substance, that it was wrong. That is a complaint of error, not of misapprehension. If the reasoned conclusion of this Court is erroneous, the applicant's remedy is not a r 50C application, but an application for special leave to appeal to the High Court.
The fourth "reason" identifies no slip, oversight, or misapprehension that could engage r 50C. Moreover, even if it did, the applicant would still face the hurdle of materiality, in circumstances where, although grounds 1 and 1A were both fully considered on the merits, leave to argue them was refused under Criminal Appeal Rules, r 4, by reason that that the applicant had ample opportunity to object to the directions at trial but did not do so. [22]
[6]
The application in respect of the sentence appeal
The applicant submits, first, that Kentwell requires that this Court must, in resentencing an appellant, "exercise its jurisdiction and consider all the "relevant matters" and circumstances to determine the correct sentence", and that this Court "erred in merely adjusting the sentence so as to reverse the perceived effect of the sentencing error"; and, secondly, with reference to the mandatory considerations in (CTH) Crimes Act 1914 ("Crimes Act"), s 16A, including sub-s (2)(e) - "any injury, loss or damage resulting from the offence" - that "the Court of Criminal Appeal will not be able to sentence the applicant because neither the trial judge nor the Court of Criminal Appeal determined whether the applicant was legally entitled to the identified monies and shares and so cannot determine the injury, loss or damage resulting from the offence."
In Kentwell, the High Court held that where the sentencing discretion at first instance is found to have miscarried, it is not for the Court of Criminal Appeal to assess whether, and to what degree, the error in the exercise of the discretion had influenced the outcome, but it must proceed to re-exercise the sentencing discretion independently and afresh: [23]
"Spigelman CJ's analysis in Baxter should be accepted. When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence."
However, there is a distinction between "re-exercising the sentencing discretion" (which is a decision-making process), and "resentencing" (which is the pronouncement of a new sentence as a result of that process). The High Court also made clear that if, in the exercise of its independent discretion, after taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, the Court of Criminal Appeal determines that the same, or a greater, sentence is the appropriate sentence for the offender and the offence, then it is not required to resentence the offender, and may dismiss the appeal: [24]
"After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal."
That is because the result of the Court's independent exercise of discretion is that no lesser sentence is warranted in law. What Kentwell dictates is that an appeal can be dismissed, notwithstanding discretionary error by the sentencing judge, on the basis that "no lesser sentence is warranted in law", if, after re-exercising the sentencing discretion, the Court of Criminal Appeal concludes that it would have imposed the same or a greater sentence.
Moreover, Kentwell does not establish that, where specific error in the exercise of the sentencing discretion is found, the Court of Criminal Appeal must redetermine the sentence by reconsidering afresh each and every factual matter and evaluation that informed the sentence given by the primary judge, including those in respect of which no complaint was made or sustained. Since Kentwell, this Court has, in Turnbull v R ("Turnbull"), explained the ongoing relevance of findings in the first instance sentencing judgment when resentencing (emphasis added): [25]
"In my opinion, where error has been established, the duty of this Court to exercise an independent sentencing discretion is not discharged merely by adopting the sentence imposed at first instance and concluding that "no lesser sentence is warranted in law". This Court must, as was made clear in Kentwell, take into account the purposes of sentencing and any relevant legal sentencing requirements, the agreed or determined facts, its assessment of the criminality involved, together with factors personal to the offender that may bear upon the selection of the appropriate sentence. That includes, as was made clear in Simpson [R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534] and Baxter [Baxter v R [2007] NSWCCA 237], and restated in Kentwell, any post sentencing factors of which evidence has been admitted. It is appropriate to adopt relevant findings of disputed fact made by the sentencing judge. And where assessments or evaluations (for example, of objective gravity or of the offender's prospects of rehabilitation) have been made that have not been the subject of challenge, they also may be adopted and acted upon."
In the principal judgment, it was stated (emphasis added): [26]
"[151] I have referred, above, to the obviously great weight which her Honour gave to considerations of totality, in imposing a total effective sentence of only 10 years in the context where, if accumulated, the sentences would have totalled 78 years. That has given considerable cause to pause before deciding to proceed to resentence the applicant. Nonetheless, it seems to me inescapable in logic that the two errors identified have resulted in the applicant receiving sentences which, albeit only to a slight extent, exceeded those which would otherwise have been imposed. In other words, had the totality of his conduct not been used to aggravate the offending for individual offences, and had he been regarded as having some if modest prospects of rehabilitation, a slightly lesser sentence would, and ought to have been, imposed in each case.
[152] But for those matters, her Honour's statement of the relevant considerations, which has been summarised above, was not impugned, and I would adopt it. I would reduce, by between three and six months, each of the sentences imposed by her Honour which exceeded two years. However, I see no reason to depart from the approach to concurrency adopted by her Honour, and in particular the periods attributable exclusively by reference to each offence, which is reflected in the accumulation."
The Court proceeded to pronounce sentences which differed from those imposed by the sentencing judge, resulting in a reduction of the effective term from ten years to nine years and six months, and of the non-parole period from six years to five years and nine months.
Those passages did not involve the Court considering whether the sentence imposed at first instance was inside or outside of any appropriate range of sentences, but rather involved the Court exercising its own independent discretion, turning its own mind to the relevant considerations, albeit paying due regard to and permissibly (consistently with Turnbull) adopting those findings and evaluations of the sentencing judge which were not found to be erroneous, ultimately deciding that a lesser sentence was warranted, and proceeding to resentence accordingly. The reference to the impact of totality was analogous to the reference in Kentwell to the position if the Court were to find, in its independent exercise of discretion, "that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences", in which case it is not required to resentence; in the same way, a view by the appellate court that less concurrency and greater accumulation is appropriate may offset a conclusion that lesser individual sentences were appropriate, to produce a conclusion that the sentence it would impose, having regard to all the considerations, is no lesser sentence than that under appeal. In this case, it ultimately did not have that consequence.
In other words, consistently with Kentwell and Turnbull, this Court took the view that the sentencing judge's approach, but for the respects in which it was found to be erroneous, was correct, and that approach commended itself to this Court in the independent exercise of its own discretion. If, however, that approach on the part of this Court be inconsistent with Kentwell and incorrect, that would not be a slip, oversight, or misapprehension attracting r 50C, but an error for which the only remedy is an application for special leave to appeal to the High Court.
The second aspect of the applicant's submissions in respect of the sentence appeal appears to be that this Court did not - and could not - discharge its function on resentencing, by reason that it and the sentencing judge failed to determine whether the applicant was legally entitled to the moneys and shares he received, and therefore could not determine the injury, loss, or damage resulting from the offence, as required by Crimes Act, s 16A(2)(e).
No ground of appeal complained that the sentencing judge had erred in this way. No such submission was advanced on the hearing of the appeal. This is an attempt to re-argue the appeal on different grounds.
Moreover, the submission is spurious. It is implicit in the jury's verdict that it found that the applicant was not legally entitled to the moneys and shares he appropriated. This issue did not have to be revisited on sentence.
Nothing in respect of which r 50C could be invoked is apparent.
[7]
Conclusion
As has often been stated, r 50C does not provide for a backdoor application to reargue an unsuccessful appeal, by which new grounds of appeal and arguments can be raised. [27] Save for "Reason 1", which is misconceived in fact, this is such an application. No arguable material slip, oversight, or misapprehension such as could engage r 50C appears from the applicant's written submissions. In the absence of any such matter having been identified, leave to make an application should be refused. In those circumstances, there is no point in convening an oral hearing, let alone is there any issue that would merit consideration by an enlarged bench.
The order of the Court is that the applicant be refused leave to make an application under r 50C.
[8]
Endnotes
Sigalla v R [2021] NSWCCA 22 at [155] (Brereton JA; Hoeben CJ at CL and Cavanagh J agreeing) ("Sigalla No 1").
As of 1 May 2021, the Criminal Appeal Rules have been repealed and replaced by (NSW) Supreme Court (Criminal Appeal) Rules 2021. The equivalent provision in the new rules is r 5.4.
(2014) 252 CLR 601 at 617-618 [42]-[43] (French CJ, Hayne, Bell and Keane JJ); [2014] HCA 37.
Burrell v The Queen (2008) 238 CLR 218 at 225 [24] (Gummow A-CJ, Hayne, Heydon, Crennan and Kiefel JJ); [2008] HCA 34.
El Ali v R (No 2) [2019] NSWCCA 289 at [4]-[19] (Basten JA, Simpson AJA and N Adams J) ("El Ali").
[2008] NSWCCA 69 at [6]-[7] (Basten JA, Latham and Rothman JJ) ("Alramadan").
[2009] NSWCCA 201 at [8] (Beazley JA, Hall and Fullerton JJ) ("Kauwenberghs").
Kauwenberghs at [10] (Beazley JA, Hall and Fullerton JJ).
Simmons v R (No 2) [2020] NSWCCA 29 at [6] (Macfarlan JA, Adamson and Beech-Jones JJ) ("Simmons"); see also Corliss v R (No 2) [2020] NSWCCA 180 at [3] (Brereton JA), [14]-[15] (Johnson J; Fullerton J agreeing).
Application of Ainsley Whitney [2020] NSWCCA 146 at [36] (Meagher JA, Harrison and Button JJ) ("Whitney"), citing Application of Malcolm Potier (No 3) [2015] NSWCCA 306 at [7] (Ward JA, Simpson JA and Wilson J) ("Potier No 3").
Miller v R (No 2) (2016) 260 A Crim R 554 at 565-566 [48]-[53] (Beazley P, Fullerton and Hamill JJ); [2016] NSWCCA 158; Dickson v R (No 2) [2018] NSWCCA 183 at [11] (Macfarlan JA), [47] (Wilson J; Schmidt J agreeing) ("Dickson"); Simmons at [6] (Macfarlan JA, Adamson and Beech-Jones JJ).
Whitney at [36] (Meagher JA, Harrison and Button JJ), citing Potier No 3 at [7] (Ward JA, Simpson JA and Wilson J).
Elliot v R (2007) 234 CLR 38 at 48 [31]-[32] (Gummow, Hayne, Heydon, Crennan and Kiefel JJ); [2007] HCA 51, referring to Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303 (Mason CJ); [1993] HCA 6; Alramadan at [6]-[7] (Basten JA, Latham and Rothman JJ); El Ali at [22] (Basten JA, Simpson AJA and N Adams J); Whitney at [34] (Meagher JA, Harrison and Button JJ).
Baghdadi v R (No 2) [2012] NSWCCA 77; Simmons at [6] (Macfarlan JA, Adamson and Beech-Jones JJ).
At [229] (Basten JA, Simpson AJA and N Adams J).
Tcpt, 1 July 2020, p 1(31)-(38).
Tcpt, 1 July 2020, p 12(1)-(6).
Simmons at [14] (Macfarlan JA, Adamson and Beech-Jones JJ).
Sigalla No 1 at [79]-[96] (Brereton JA; Hoeben CJ at CL and Cavanagh J agreeing).
Sigalla No 1 at [90] (Brereton JA; Hoeben CJ at CL and Cavanagh J agreeing).
Sigalla No 1 at [70]-[78] (Brereton JA; Hoeben CJ at CL and Cavanagh J agreeing).
Sigalla No 1 at [77]-[78] (Brereton JA; Hoeben CJ at CL and Cavanagh J agreeing).
Kentwell at 617-618 [42] (French CJ, Hayne, Bell and Keane JJ).
Kentwell at 618 [43] (French CJ, Hayne, Bell and Keane JJ).
[2019] NSWCCA 97 at [44] (Simpson AJA; Ierace J agreeing); approved in RO v R [2019] NSWCCA 183 at [81]-[82] (Beech-Jones J; Bathurst CJ and N Adams J agreeing).
Sigalla No 1 at [151]-[152] (Brereton JA; Hoeben CJ at CL and Cavanagh J agreeing).
See, for example, Dickson at [11] (Macfarlan JA), [47] (Wilson J; Schmidt J agreeing).
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: 07 July 2021
Solicitors:
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2013/151155; 2013/355116
Decision under appeal Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Criminal
Citation: [2017] NSWSC 52
Date of Decision: 10 February 2017
Before: Adamson J
File Number(s): 2013/151155; 2013/355116
HEADNOTE
[This headnote is not to be read as part of the judgment]
Following a jury trial in the Supreme Court, the applicant, Mr Sigalla, was convicted of 24 counts of dishonestly using his position as a director with intent to gain a benefit for himself or a third party, contrary to Corporations Act 2001 (Cth), s 184(2)(a). He was sentenced to ten years' imprisonment, with a non-parole period of six years. He appealed against his convictions and sentence to the Court of Criminal Appeal, and while his conviction appeal was dismissed, his sentence appeal was allowed and the Court resentenced the applicant to nine years and six months' imprisonment, with a non-parole period of five years and nine months. The applicant then applied to the Court, pursuant to Criminal Appeal Rules 1952 (NSW) ("Criminal Appeal Rules"), r 50C(1), for the Court to re-open his appeal and set aside or vary the orders made, and, pursuant to r 50C(1A), for leave to make that application. The applicant also sought that his application be heard by way of oral hearing before a five-judge bench.
In respect of his conviction appeal, the applicant submitted that the Court:
1. failed to consider ground 4 of his grounds of appeal;
2. failed to comprehend the basis of the trial decision in two fundamental ways;
3. misapprehended four material facts; and
4. misapprehended six questions of law.
In respect of his sentence appeal, the applicant submitted that the Court:
1. erred in not following Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 ("Kentwell"), as the Court merely adjusted the applicant's sentence so as to reverse the perceived sentencing error, instead of considering all relevant matters and re-exercising the sentencing discretion afresh; and
2. could not have sentenced the applicant because neither the primary judge nor the Court on appeal determined whether the applicant was legally entitled to the moneys and shares he received, and thus could not assess the "injury, loss or damage resulting from the offence", as is a mandatory consideration under Crimes Act 1914 (Cth) ("Crimes Act"), s 16A(2)(e).
Held (per Hoeben CJ at CL, Brereton JA and Cavanagh J), refusing leave to make an application under Criminal Appeal Rules, r 50C: [50].
As to an application under r 50C:
Rule 50C provides a very limited exception to the general principle that once the Court determines an appeal and final orders are entered, it may not further consider the appeal. The rule does not permit an applicant to re-agitate an unsuccessful appeal, whether on the same grounds or grounds not previously advanced. The rule only permits the Court to rectify obvious mistakes in the nature of slips, oversights, and misapprehensions of fact or law. This includes failing to address a ground of appeal: [8]-[13].
Simmons v R (No 2) [2020] NSWCCA 29; Kauwenberghs v R (Cth) [2009] NSWCCA 201; Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69, applied.
As to re-opening of the conviction appeal:
There was no error in the Court's consideration of ground 4, because as ultimately pressed on appeal by the applicant's counsel, it depended on ground 1A, which failed: [17]-[24].
Simmons v R (No 2) [2020] NSWCCA 29, considered.
The three remaining submissions advanced identify no slips, oversights, or misapprehensions, and largely involve an impermissible attempt to reargue the appeal on grounds not previously advanced: [25]-[35].
As to re-opening of the sentence appeal:
Kentwell stipulates that where the sentencing discretion at first instance has miscarried, the Court of Criminal Appeal is not to assess whether, and to what degree, the error influenced the outcome, but is instead to "re-exercise the sentencing discretion" afresh. However, re-exercising that discretion is distinct from "resentencing", which involves the pronouncement of a new sentence, thus the Court may dismiss an appeal if, having re-exercised the sentencing discretion, it determines that the same, or a greater sentence, is appropriate. Moreover, Kentwell does not establish that the Court must reconsider afresh every factual matter and evaluation that informed the original sentence. It is permissible to adopt relevant, unchallenged factual findings and evaluations of the primary judge. The approach taken by this Court to the applicant's appeal was consistent with Kentwell, but even if it was not, that is not a slip, oversight, or misapprehension, but instead an error for which the only remedy is an application for special leave to appeal to the High Court: [37]-[44].
Turnbull v R [2019] NSWCCA 97; Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied.
The submission in respect of Crimes Act, s 16A(2)(e), is again an impermissible attempt to re-argue the appeal on grounds not previously advanced, and is in any event incorrect. It was implicit in the jury's guilty verdict that the applicant was not legally entitled to the moneys and shares he appropriated, and this issue did not require revisitation on sentencing: [45]-[47].
As to a grant of leave, an oral hearing, and a five-judge bench:
The leave requirement under r 50C(1A) acts as a filter enabling unmeritorious applications to be disposed of without a full hearing on the merits. The approach to a r 50C application informs the question of leave, which thus involves considering whether there is an arguable slip, oversight, or misapprehension; if so, whether it is apparently material; and, possibly, general discretionary considerations: [14].
El Ali v R (No 2) [2019] NSWCCA 289, applied.
Criminal Appeal Rules, r 50C
Rule 50C provides as follows:
50C Power to set aside or vary order (cf UCPR rule 36.16)
(1) The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order.
(1A) An application to set aside or vary an order may only be made with the leave of the Court.
(1B) The Court may determine both whether to grant leave and the application on the papers.
(2) If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the order under subrule (1), as if the order had not been entered.
(3) Within 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered.
(4) The Court may not extend the time limited by subrule (2) or (3).
(5) Nothing in this rule affects any other power of the Court to set aside or vary an order (including any power to correct clerical mistakes or errors arising from accidental slips or omissions).
Rule 50C provides one of the very limited exceptions to the general rule that once the Court of Criminal Appeal determines an appeal and its final orders are entered, it is functus officio and may not further consider the appeal. [4] It is historically, conceptually, and contextually analogous to other powers of courts to re-open a hearing after final orders are made before those orders are entered, and now, in limited circumstances provided by applicable rules of court, even after they are entered. Rule 50C(2) now ensures that the Court has the power, on application made within fourteen days after entry, to re-open an appeal in those circumstances in which it had always had such power before its orders were entered. [5]
However, the circumstances in which a court may do so are confined. In Alramadan v Director of Public Prosecutions (NSW) (No 2), which was decided at a time when there was no such leave requirement as is now contained in r 50C(1A), the Court said of the approach to be applied in addressing such an application: [6]
"[6] Where judgment has been given but the order has not been entered, the power to reconsider an appeal is not precluded. Nevertheless, the circumstances in which the Court will be persuaded to entertain further argument (and possibly further evidence) are quite limited. In Elliott and Blessington at [31]-[32], the High Court held that the criteria by which this Court should determine an application to re-open a proceeding, prior to judgment being entered, were those stated by Mason CJ in Autodesk Inc v Dyason (No. 2) [1993] HCA 6; 176 CLR 300 at 303:
"What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases."
[7] Applying those principles in the present case, it is necessary to identify some misapprehension of fact or law, not solely attributable to the applicant, which materially affected this Court's judgment in the appeal."
Presently, nothing arguably engaging r 50C has been demonstrated in the applicant's written submissions, thus leave should be refused. There is therefore no utility in convening an oral hearing, let alone is there any issue meriting consideration by a five-judge bench: [49].
That statement was approved in Kauwenberghs v R (Cth), [7] in which the Court added: [8]
"The first question is whether, in considering the application for leave to appeal against sentence, the Court proceeded (or apparently proceeded) according to some misapprehension of fact or law. Unless that has occurred the application to vary the sentencing order must be dismissed. If it is established that the Court proceeded according to some misapprehension of fact or law, the Court must then be satisfied that the matter complained of affected its consideration of the merits of the appeal in some material way. That is, the misapprehension must be a material one. Again, unless that matter is established, the application to vary the sentencing order must fail. Assuming the materiality of the misapprehension of fact or law, the final question is whether it was due to the applicant's neglect or default."
The principles have recently been summarised as follows: [9]
"The failure of this court to address a ground of appeal may constitute a basis for leave to be granted under r 50C: Baghdadi v R (No 2) [2012] NSWCCA 77. However r 50C does not permit a party to re-agitate an unsuccessful appeal or seek to argue it differently in the hope of obtaining a different result: Miller v R (No 2) [2016] NSWCCA 158; (2016) 260 A Crim R 554 at [48]-[53] (Beazley P, Fullerton and Hamill JJ)."
Thus the rule does not confer jurisdiction to rehear an appeal on the merits, [10] or permit an applicant to re-agitate an unsuccessful appeal or seek to argue it differently in the hope of obtaining a different result. [11] The rule permits the Court to reconsider and correct its orders to rectify obvious mistakes in the nature of slips, oversights, and misapprehensions, so as to reflect correctly its intention at the time of making the decision in question. [12] It permits the Court to reconsider its judgment where it has apparently proceeded according to some misapprehension of the facts or the relevant law, which cannot be solely attributed to the neglect or default of the party seeking a re-opening. [13] Failure to address a ground of appeal may constitute a basis for a grant of leave under r 50C. [14] However, in this context, a "misapprehension" refers to a mistake in the nature of an oversight or erroneous assumption, and not to a deliberate decision which is contended to be incorrect, for which the remedy, if any, is an appeal.
The requirement for leave under r 50C(1A) is intended to act as a filter, to enable unmeritorious applications to be disposed of without a full hearing on the merits. In El Ali, [15] this Court said that the approach described in Alramadan should inform both the question of leave under r 50C(1A) and the disposal of the application under r 50C(1) or (2). On an application for leave, it will be relevant to consider whether there is an arguable case of a slip, oversight, or misapprehension within the scope of the rule; if so, whether it is apparently material; and, possibly, general discretionary considerations.