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Court of Criminal Appeal 27 March 2008

ALRAMADAN v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) (NO. 2)

[2008] NSWCCA 69

Public order & justice offences
CRIMINAL APPEAL ORDER ENTERED CRIMINAL APPEAL RULES R 50C(2) CRIMINAL APPEAL REOPENING WHERE ORDERS NOT ENTERED FURTHER EVIDENCE

Citation: Alramadan v Director of Public Prosecutions (NSW) (No. 2) [2008] NSWCCA 69
Court: NSW Court of Criminal Appeal
Date: 27 March 2008
Judges: Basten JA, Latham J, Rothman J

Background

The appellant had been convicted in the District Court and his appeal against conviction was dismissed by the Court of Criminal Appeal on 23 November 2007. The judgment and orders were entered in the Registry on the same day. On 6 December 2007, within 14 days of entry, the appellant wrote to the Registrar seeking to have the matter relisted.

The court treated that letter as an application to set aside or vary the order under the recently commenced r 50C(2) of the Criminal Appeal Rules. That rule, which had only been in operation since 7 September 2007, had not previously been the subject of judicial consideration.

The underlying appeal had concerned the trial judge's rejection of expert medical evidence from two witnesses. The Court of Criminal Appeal had unanimously found error in that rejection but, by majority, concluded the error did not constitute a substantial miscarriage of justice. The appellant now sought to reopen the appeal to introduce further, more detailed statements from those same experts, material that had not been placed before the Court at the original hearing.

  • Whether r 50C(2) of the Criminal Appeal Rules confers on the Court the same power to reopen an entered appeal as it has in relation to orders not yet entered.
  • What criteria must be satisfied before the Court will reopen a criminal appeal, whether or not orders have been entered.
  • Whether an application to adduce further expert evidence, not previously put before the Court, meets those criteria.

Decision

The Court first considered the scope of r 50C(2). It held that the rule operates according to its terms: an application made within 14 days of entry allows the Court to deal with the matter as if the order had not been entered. The Court noted caution against drawing too close an analogy with civil proceedings, citing the principle from Grierson v The Queen that determination of a criminal appeal is definitive and final considerations from civil procedure do not straightforwardly carry across.

On the criteria for reopening, the Court applied the test stated by Mason CJ in Autodesk Inc v Dyason (No. 2). To enliven the jurisdiction, the Court must have apparently proceeded on some misapprehension of fact or law, and that misapprehension must not be solely attributable to the neglect or default of the party seeking the rehearing. The High Court confirmed in Elliott v The Queen; Blessington v The Queen that these criteria apply in the pre-entry context, and the Court of Criminal Appeal treated them as equally applicable under r 50C(2).

Applying that test, the Court found the application could not succeed. The further expert material had not been presented on the original appeal for reasons attributable solely to the appellant's own conduct of the case. No misapprehension on the part of the Court was identified; competent counsel had run the appeal and the Court had not obstructed its presentation. The appellant was, in substance, seeking to remedy a deficiency in the material he had chosen to place before the Court and to reargue an unsuccessful appeal.

The Court concluded this fell squarely within the impermissible "backdoor" approach condemned in Autodesk (No. 2) and dismissed the application accordingly.

Orders Made

  • The appellant's application to reopen the appeal and set aside the order of 23 November 2007 dismissing the appeal was dismissed.

Key Takeaways

  • Rule 50C(2) of the Criminal Appeal Rules allows the Court of Criminal Appeal, on application made within 14 days of entry of an order, to deal with a matter as if the order had not been entered, effectively restoring the pre-entry powers of the Court.
  • The test for reopening a criminal appeal (whether orders are entered or not) requires that the Court apparently proceeded on a misapprehension of fact or law, and that the misapprehension was not solely caused by the party seeking the rehearing: Autodesk Inc v Dyason (No. 2), as confirmed in Elliott v The Queen; Blessington v The Queen.
  • An application framed as seeking to adduce further evidence will not satisfy that test where the reason the evidence was not before the Court was the applicant's own conduct of the original appeal.
  • In dismissing the application, the Court drew a clear distinction between correcting a misapprehension by the Court and providing an unsuccessful appellant with a further opportunity to present a stronger case than the one initially run.
  • Close analogies with civil procedure are not automatically available in the criminal appeal context, given the established principle that the determination of a criminal appeal is final and definitive.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW), r 50C
- Criminal Appeal Rules (Amendment No. 1) 2007, GG No 116, 7/09/07, p 6888
- Uniform Civil Procedure Rules (NSW), r 36.16

Cases
- Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322
- Autodesk Inc v Dyason (No. 2) [1993] HCA 6; 176 CLR 300
- Elliott v The Queen; Blessington v The Queen [2007] HCA 51; 82 ALJR 82
- Grierson v The Queen (1938) 60 CLR 431
- Postiglione v The Queen (1997) 189 CLR 295