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8
Court of Criminal Appeal 15 April 2011

R v GREEN AND QUINN

[2011] NSWCCA 71

Fraud & dishonesty
JUDGMENT ORDERS ERROR CORRECTION SLIP RULE

Citation: R v Green and Quinn [2011] NSWCCA 71
Court: NSW Court of Criminal Appeal
Date: 15 April 2011
Judges: Allsop P, McClellan CJ at CL, RS Hulme J, Latham J, McCallum J

Background

These proceedings arose from Crown appeals against sentences originally imposed by a District Court judge on two offenders. The Court of Criminal Appeal allowed those Crown appeals on 17 December 2010 and re-sentenced both offenders. The re-sentencing orders were entered into the court's computerised record system on the same day.

A discrepancy then came to light. The body of the majority's reasons, at paragraph [143], expressed sentences that were more severe than the orders actually recorded in paragraph [144] and on the judgment's coversheet. Paragraph [144], from which the formal orders were copied, had been drafted from an earlier version of the reasons that predated the majority's final agreement on the appropriate sentences. No member of the majority had intended the orders as entered.

The Crown promptly notified the Court of the error. The question became whether the Court had power to correct the orders to reflect the majority's true intention, and if so, whether it should exercise that power in the circumstances.

  • Whether the Crown's letter to the Registrar within 14 days of entry constituted an "application" under Rule 50C of the Criminal Appeal Rules, which permits variation of entered orders within that time limit
  • Whether the Court possessed any power, outside Rule 50C, to correct an accidental slip in entered orders so that they reflect the Court's true intention
  • Whether, if such power existed, the Court should exercise its discretion to correct the orders and re-sentence the offenders for a third time

Decision

On the question of Rule 50C, McCallum J (with whom Allsop P agreed) found that the Director of Public Prosecutions' letter to the Registrar did not constitute a proper application under Rule 50C(2). The letter merely brought the discrepancy to the Court's attention; it did not seek any identified relief or file any process. Because Rule 50C(4) prohibits any extension of the 14-day time limit, the window for variation under the Rules had closed without a valid application being made.

The Court also declined to decide, as a final matter, whether any broader implied or inherent power existed outside Rule 50C to correct slips in entered orders of a statutory appellate court. All members of the Court concluded that, even assuming such a power existed, the discretion should not be exercised in the circumstances of this case.

The reasons for declining to exercise the discretion were consistent across the bench. Sentencing the offenders again would constitute a third sentencing, compounding the burden already created by a successful Crown appeal. Both offenders had made genuine rehabilitative progress since the December 2010 orders. The sentences actually entered, though arising from an inadvertent error, fell within the proper range and adequately vindicated the majority's reasons. No public interest required correction of the orders. In the words of Allsop P, a third sentencing would impose a "somewhat harsher sentence in all the circumstances," and that consideration powerfully weighed against any exercise of discretion.

McCallum J also noted the principle from Storey and Keers v Johnstone that a court may decline to correct a slip where intervening events render it inexpedient or inequitable to do so. That principle applied with particular force here, given the cumulative effect on offenders who had already faced a Crown appeal.

Orders Made

  • To the extent that the Crown made an application under Rule 50C, that application was dismissed.
  • The Court otherwise declined to vary or correct the orders of the Court or the sentences imposed on 17 December 2010.

Key Takeaways

  • A letter from the Director of Public Prosecutions to the Registrar notifying the Court of an error in entered orders does not constitute an "application" for the purposes of Rule 50C(2) of the Criminal Appeal Rules; some articulation of the relief sought, and proper filing of process, is required.
  • Rule 50C(4) prohibits any extension of the 14-day time limit for applications to set aside or vary entered orders, making strict compliance with that window critical.
  • Whether this Court possesses an implied power to correct slips in entered orders outside Rule 50C was expressly left undecided; all members of the bench resolved the matter on discretionary grounds alone.
  • Even where a discrepancy between a court's reasons and its formal orders is acknowledged and arises from a purely administrative error, the discretion to correct that error will not automatically be exercised, particularly where the affected parties would face a third sentencing.
  • The public interest in sentencing consistency can be satisfied by the identification of the intended sentence within the published reasons, without requiring formal correction of the entered orders, where those orders themselves reflect a sentence within the proper range.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Rules, Rules 50B and 50C
- Criminal Appeal Act 1912 (NSW), ss 5D, 22A

Cases:
- In re Swire (1885) 30 Ch D 239
- Milson v Carter [1893] AC 638
- R v Michael [1976] QB 414
- L Shaddock and Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; 151 CLR 590
- De Zylva (1988) 38 A Crim R 207
- R v Carrion [2002] NSWCCA 21; 128 A Crim R 29
- R v A.N. (No 2) [2006] NSWCCA 218; 66 NSWLR 523
- Burrell v The Queen [2008] HCA 34; 238 CLR 218
- R v Jones and Hili (No 2) [2010] NSWCCA 195
- Ho v DPP (1995) 37 NSWLR 393
- Kauwenberghs v R [2009] NSWCCA 201
- Storey and Keers v Johnstone (1987) 9 NSWLR 446
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1