AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
10
Court of Criminal Appeal 19 August 2009

KAUWENBERGHS, Tim Leon Mon v R (Cth)

[2009] NSWCCA 201

Drugs
CRIMINAL LAW CRIMINAL APPEAL RULES APPLICATION TO VARY COURT'S ORDERS

Citation: KAUWENBERGHS, Tim Leon Mon v R (Cth) [2009] NSWCCA 201
Court: NSW Court of Criminal Appeal
Date: 19 August 2009
Judge(s): Beazley JA; Hall J; Fullerton J

Background

The applicant had pleaded guilty in the District Court to five counts involving the possession and supply of commercial quantities of ecstasy, contrary to both Commonwealth and State legislation. Following his sentence, the Court of Criminal Appeal granted him leave to appeal against sentence, allowed the appeal, and re-sentenced him. Those orders were entered in the Registry on 29 July 2008.

The applicant, who was self-represented throughout, subsequently wrote to the Court in August and September 2008. The Court treated that correspondence as an application to vary the entered orders under rule 50C(2) of the Criminal Appeal Rules. The applicant contended that the Court had determined his appeal based on grounds and submissions prepared by his former lawyers, which he said he had expressly abandoned when he took over conduct of his appeal.

  • Whether the Court, in hearing the appeal against sentence, had proceeded according to a misapprehension of fact or law that enlivened the power to vary orders under rule 50C(2) of the Criminal Appeal Rules.
  • Whether any such misapprehension, if established, was material to the Court's determination of the appeal.
  • Whether any misapprehension could be attributed to the applicant's own neglect or default.

Decision

The Court confirmed the framework established in Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69, which was the first occasion the Court had considered rule 50C. Drawing on Mason CJ's formulation in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, the Court held that three questions must each be answered affirmatively before variation of entered orders can be considered: first, whether the Court apparently proceeded on a misapprehension of fact or law; second, whether that misapprehension materially affected the determination; and third, whether it was not solely attributable to the applicant's own neglect or default.

The Court emphasised that this jurisdiction is a narrow one. After a full hearing on the merits, the circumstances in which further argument can be entertained are quite limited, and the power is not available as a back-door mechanism for unsuccessful litigants to re-argue their cases.

Applying those principles, the Court found that it had not proceeded according to a misapprehension of fact or law of a material kind when determining the original appeal. Because the first and foundational requirement was not satisfied, there was no basis to proceed further and undertake a general review of the applicant's grounds of appeal or submissions. The application was accordingly dismissed.

Orders Made

  • The application to vary the orders of the Court entered on 29 July 2008 is dismissed.

Key Takeaways

  • Under rule 50C(2) of the Criminal Appeal Rules, a party may apply to vary entered orders within 14 days of entry, but the Court has no power to extend that timeframe.
  • The power to vary or set aside orders under rule 50C is to be understood consistently with the general law, as articulated in Autodesk Inc v Dyason (No 2): the jurisdiction is enlivened only where the Court apparently proceeded on a misapprehension of fact or law not solely caused by the applicant's own neglect or default.
  • A three-part test governs applications under rule 50C: there must be an apparent misapprehension, it must have been material to the outcome, and it must not be attributable solely to the applicant's neglect or default. All three elements must be satisfied.
  • No misapprehension of fact or law was established in this case, meaning the Court had no occasion to review the remaining grounds of appeal or the applicant's broader submissions.
  • Correspondence from a party can, in appropriate circumstances, be treated as a formal application to vary orders, even in the absence of a notice of motion or supporting affidavit.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Rules (NSW), rule 50C
- Customs Act 1901 (Cth), s 233B(1)(ca)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69
- Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300