Citation: Martin v R (No. 2) [2013] NSWCCA 26
Court: NSW Court of Criminal Appeal
Date: 26 February 2013
Judge(s): Hoeben JA, Davies J, Campbell J
Background
This decision arose from an earlier appeal in which the Court of Criminal Appeal, on 13 December 2012, allowed the appellant's appeal and quashed sentences imposed by Judge Garling. In substituting new sentences, the Court made an order in respect of Count 2 that included a non-parole period of 12 months commencing 30 July 2012, together with an additional term of 9 months.
The problem was that the expiry date recorded for the additional term was wrong. As stated in the December 2012 order, the additional 9-month term was said to expire on 29 March 2014, but a 9-month period running from 29 July 2013 in fact expires on 29 April 2014. The recorded date therefore did not reflect what the Court had actually intended.
The error was not identified within the 14-day period that the Criminal Appeal Rules ordinarily allow for corrections of this kind, which meant the Court needed to consider whether it retained any power to act after that window had closed.
Legal Issues
- Whether the Court of Criminal Appeal retained power to correct an accidental error in a sentencing order after the 14-day window under r 50C of the Criminal Appeal Rules had expired.
- Whether the corrected expiry date for the additional term should be 29 April 2014 rather than 29 March 2014.
Decision
The Court confirmed that r 50C of the Criminal Appeal Rules provides a 14-day period for corrections to orders, but that this rule does not exhaust the Court's powers in cases of accidental error. Drawing on its earlier decision in R v Brett Andrew Green [2011] NSWCCA 71, the Court held that it retains an inherent power to correct accidental slips or omissions in orders, independently of and beyond the statutory rule.
The purpose of that inherent power is to ensure that orders as finally recorded actually reflect the Court's intention at the time they were made. On that basis, the Court exercised the power to amend the December 2012 order so that the additional 9-month term was expressed to expire on 29 April 2014, correcting the arithmetically incorrect date of 29 March 2014.
Orders Made
- Order 4 made on 13 December 2012 was varied so that paragraph (a) reads: a non-parole period of 12 months commencing 30 July 2012 and expiring 29 July 2013, with an additional term of 9 months expiring 29 April 2014.
Key Takeaways
- The Court of Criminal Appeal confirmed that r 50C of the Criminal Appeal Rules, which permits corrections within 14 days, does not limit the court's broader inherent power to rectify accidental slips in orders.
- Inherent jurisdiction to correct accidental errors exists independently of procedural rules and survives the expiry of any prescribed correction window.
- The rationale for the inherent slip rule is narrow: it applies only to ensure that a formally recorded order accurately reflects the court's actual intention, not to revisit substantive decisions.
- Arithmetic errors in sentence calculations, such as an incorrect expiry date for an additional term, fall within the category of accidental slips amenable to correction under this inherent power.
- R v Brett Andrew Green [2011] NSWCCA 71 was reaffirmed as the applicable authority on the scope of this inherent corrective jurisdiction in the New South Wales Court of Criminal Appeal.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Rules, r 50C
Cases
- R v Brett Andrew Green [2011] NSWCCA 71