Citation: R v Glyn Morgan JONES; R v Anthony Joseph Luis HILI (No 2) [2010] NSWCCA 195
Court: Court of Criminal Appeal, New South Wales
Date: 3 September 2010
Judge(s): McClellan CJ at CL; Rothman J
Background
The substantive proceedings concerned sentencing appeals brought by the Crown against two respondents convicted of federal offences. The primary judgment, delivered on 14 May 2010, addressed the sentences imposed on those respondents, including the proportion of each sentence to be served as a mandatory minimum period of imprisonment.
After the primary judgment was entered, the Commonwealth Director of Public Prosecutions filed a notice of motion seeking to correct the wording of two paragraphs in Rothman J's reasons. The motion arose because the language used in those paragraphs was said to be ambiguous or infelicitous, and potentially inconsistent with the court's original intention.
The respondents opposed the amendments, partly on the basis that an application for special leave to appeal to the High Court was pending. The Court of Criminal Appeal waited until after the High Court had dealt with that application before proceeding to judgment on the motion.
Legal Issues
- Whether the Court of Criminal Appeal has power to amend the wording of its reasons for judgment after those orders have been entered.
- Whether the Court of Criminal Appeal is a superior court of record with inherent jurisdiction, and how that status bears on its powers.
- Whether any such power to amend reasons is subject to the same limitations as the power to alter a judgment itself.
- Whether the corrections proposed in this case fell within any available power, or instead amounted to altering the rationale or basis of the original decision.
Decision
Rothman J (with McClellan CJ at CL agreeing) examined the status of the Court of Criminal Appeal, noting that although established by statute under section 3 of the Criminal Appeal Act 1912, this did not distinguish it meaningfully from every other New South Wales court except the Supreme Court. The Court determined that it was, at minimum, entitled to exercise all of the powers conferred upon it by statute, including, by section 12 of the Act, the full range of powers of the Supreme Court on appeal in civil matters.
The Court rejected the respondents' submission that no power existed to alter the wording of reasons once judgment was entered. Rothman J observed the obvious practical difficulty with such a position, noting that ex tempore judgments are routinely corrected for grammar and expression, and that even the High Court reserves the right to revise its reasons before authorised publication.
The Court found the power to correct reasons extends to slips and ambiguities, provided any correction does not alter the underlying rationale or basis of the decision. The proposed amendments to paragraphs [3] and [44] of the original reasons were characterised as clarifications of original intent, not changes to the substance of the reasoning. Paragraph [44], for instance, was amended to make clear that the Court was continuing the sentencing judge's approach to fixing a lower than usual proportion for the mandatory imprisonment period, not adopting her Honour's specific percentage of 39%.
The Court confirmed that neither amendment involved any alteration to the basis upon which the appeal was allowed or the sentence fixed, and accordingly the corrections fell within power.
Orders Made
- The reasons for judgment issued on 14 May 2010 are amended in accordance with the corrections identified in this judgment.
Key Takeaways
- The Court of Criminal Appeal confirmed it has power to correct or amend the wording of its reasons for judgment after orders have been entered, at least where the correction remedies a slip or ambiguity without altering the rationale or basis of the decision.
- A court's capacity to amend reasons is distinct from, though related to, its power to alter a judgment: the former extends to clarifying infelicitous expression, provided the substance of the decision is unchanged.
- Although established by statute, the Court of Criminal Appeal is not thereby deprived of powers equivalent to those of a superior court; section 12 of the Criminal Appeal Act 1912 confers the full appellate powers of the Supreme Court.
- Where proposed amendments to reasons do no more than better reflect the court's original intention, they fall within the permissible scope of correction and do not constitute a substantive alteration of the judgment.
- Practical necessity supports the existence of this corrective power: without it, routine post-delivery revisions to grammar, expression, and clarity in judicial reasons would be beyond a court's authority, an outcome the Court described as creating obvious practical problems.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), ss 3, 12
- Supreme Court Act 1970 (NSW)
- A New Tax System (Goods and Services Tax) Act 1999 (Cth)
- Commonwealth Conciliation and Arbitration Act 1904-1947
- The Constitution
Cases
- R v Glyn Morgan JONES; R v Anthony Joseph Luis HILI [2010] NSWCCA 108 (the primary judgment)
- Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529
- Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
- Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
- AN (No 2) v R [2006] NSWCCA 218; (2006) 66 NSWLR 523
- Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69
- DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226
- Philip Morris Inc v Adam P Brown Male Fashions Proprietary Limited [1981] HCA 7; (1981) 148 CLR 457
- Jackson v Sterling Industries Limited [1987] HCA 23; (1987) 162 CLR 612
- CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172
- Cardile v LED Builders Pty Limited [1999] HCA 18; (1999) 198 CLR 380
- Pasini v United Mexican States [2002] HCA 3; (2002) 209 CLR 246
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89