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Court of Criminal Appeal 28 February 2013

Karim v R; Magaming v R; Bin Lahaiya v R; Bayu v R; Alomalu v R (No 2)

[2013] NSWCCA 43

Public order & justice offences
PRACTICE AND PROCEDURE NO QUESTION OF PRINCIPLE

Citation: Karim v R; Magaming v R; Bin Lahaiya v R; Bayu v R; Alomalu v R (No 2) [2013] NSWCCA 43
Court: NSW Court of Criminal Appeal
Date: 28 February 2013
Judges: Bathurst CJ, Allsop P, McClellan CJ at CL, Hall J, Bellew J

Background

This decision is a short procedural judgment arising from orders made by the NSW Court of Criminal Appeal on 15 February 2013 in a group of criminal appeals. The Australian Human Rights Commission had participated in those proceedings, though the precise nature of that participation became the subject of dispute.

Following the delivery of the principal judgment, the Crown filed a notice of motion seeking two changes: an amendment to one of the orders and alterations to paragraphs 35 and 36 of Allsop P's reasons. The Crown's concern centred on how the Commission's role had been characterised.

The motion brought into focus the distinction between an amicus curiae (a non-party who assists the court by making submissions) and an intervenor (a party permitted to join proceedings). The Crown sought to ensure the record did not suggest the Commission had been granted leave to intervene as a party.

  • Whether order 1 should be amended by replacing the word "intervene" with "appear", to avoid any implication that the Human Rights Commission was given leave to intervene as a party.
  • Whether paragraphs 35 and 36 of Allsop P's reasons should be altered to reflect the Crown's characterisation of the Commission's role and the Crown's earlier submissions.
  • Whether the Crown's initial objection to the Commission being heard had extended to its participation as an amicus curiae.

Decision

The Court refused to amend the orders. While the word "appear" could have been used instead of "intervene", the Court saw no need to alter the record. The Commission had not been made a party to the proceedings, and the existing orders did not suggest otherwise.

The Court also declined to alter Allsop P's reasons. It noted that the Commission had initially sought to participate as an intervenor but ultimately accepted a more limited role as an amicus curiae. That sequence of events was accurately reflected in the reasons as they stood.

On the Crown's conduct during the original proceedings, the Court observed that the Crown's position had been "less than pellucid" (meaning unclear) as to whether it had consented to the Commission acting as amicus. The Crown had initially challenged the Court's jurisdiction to permit any intervention at all, but that submission was withdrawn as the argument shifted to the question of amicus participation.

The Court noted that nothing in the existing reasons prevented the Crown from reserving, for future cases, the question of jurisdiction in relation to interventions.

Orders Made

  • The notice of motion filed 22 February 2013 was dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a court permitting a body such as the Australian Human Rights Commission to address it as amicus curiae does not thereby make that body a party to the proceedings.
  • A distinction exists between an intervenor, who becomes a party, and an amicus curiae, who is permitted to assist the court without acquiring party status. The Commission in this case fell into the latter category.
  • In dismissing the motion, the Court declined to alter existing orders or reasons where no substantive error was identified, even where the Crown considered different wording preferable.
  • An earlier withdrawal of a jurisdictional objection by the Crown did not, without more, constitute consent to the Commission's participation as amicus. The Court found the Crown's position on that question had lacked clarity.
  • The judgment leaves open the question of whether a court has jurisdiction to permit interventions of various kinds, noting that the Crown may raise that issue for determination in a future case.

Legislation and Cases Referenced

Legislation: Not cited in this decision.

Cases: No cases were cited in this decision. The principal judgment in Karim v R; Magaming v R; Bin Lahaiya v R; Bayu v R; Alomalu v R (orders made 15 February 2013) forms the procedural backdrop.