Citation: AKKAWI, Mark v R; AKKAWI, Paul v R (No 2) [2013] NSWCCA 72
Court: NSW Court of Criminal Appeal
Date: 8 April 2013
Judge(s): Simpson J, Blanch J, Rothman J
Background
On 17 February 2012, the Court of Criminal Appeal handed down judgment on sentencing appeals brought by two co-appellants. When the judgment was published, a significant discrepancy emerged between the sentences set out in the body of the reasons for judgment and those recorded on the coversheet, which had been entered into the court's electronic record system, JusticeLink.
The discrepancies affected multiple counts for both appellants. For one appellant, the body of the reasons proposed one head sentence and non-parole period for Count 1, while the coversheet recorded materially different figures. Similar mismatches applied to other counts, including differences in the commencement dates of sentences. There was also an internal inconsistency within the reasons themselves regarding the aggregate sentence for one appellant.
The Crown applied, by letter filed on 29 February 2012 (within 14 days of judgment), to vary the orders under rule 50C of the Criminal Appeal Rules. The appellants subsequently filed a Notice of Motion seeking to confirm the coversheet figures rather than those in the body of the reasons.
Legal Issues
- Whether the application to vary the orders, filed within 14 days of entry on JusticeLink, had the effect of treating the orders as not yet entered under rule 50C of the Criminal Appeal Rules.
- Whether, if the orders had been entered, the Court of Criminal Appeal retained power to correct or vary them to reflect the original intention expressed in the reasons for judgment.
- Which version of the orders (the reasons or the coversheet) reflected the Court's true intention when judgment was delivered.
Decision
The Court held that rules 50B and 50C of the Criminal Appeal Rules must be read together. Where an application to set aside or vary an order is made within 14 days of entry on JusticeLink, the effect is that the entry is treated as never having occurred. The application operates on a nunc pro tunc basis, meaning the Court retains full power to reconsider the matter as though no order had been entered.
The Court also confirmed, drawing on its earlier decision in Jones & Hili (No 2), that even if the orders had been validly entered, the Court of Criminal Appeal, as the Supreme Court exercising jurisdiction under the Criminal Appeal Act 1912 and as a superior court of record, retains power in certain circumstances to vary entered orders to correct clear error.
On the substantive question, the Court was satisfied that the orders proposed in the body of the reasons for judgment, written by Simpson J and agreed to by Blanch and Rothman JJ, reflected the Court's true intention. The coversheet figures were the product of error. Accordingly, the Court gave effect to the sentences in the reasons, with a corrected calculation of the aggregate head sentence for one of the appellants.
The Court noted that the corrected sentences were still substantially more favourable to both appellants than the sentences originally imposed in the District Court.
Orders Made
- Leave to appeal granted.
- Sentences imposed by the District Court on 3 September 2010 set aside and the appellants re-sentenced as follows:
Mark Akkawi:
- Count 1: 5 years and 6 months imprisonment from 29 May 2008, non-parole period of 3 years and 3 months expiring 28 August 2011.
- Count 2 (including Form 1 offences): 6 years imprisonment from 29 May 2009, non-parole period of 4 years expiring 28 May 2013.
- Aggregate: 7 years from 29 May 2008 to 28 May 2015, non-parole period of 5 years expiring 28 May 2013.
Paul Akkawi:
- Count 1: 5 years and 6 months imprisonment from 29 May 2008, non-parole period of 3 years and 3 months expiring 28 August 2011.
- Count 2: 6 years imprisonment from 29 May 2009, non-parole period of 4 years expiring 28 May 2013.
- Count 3 (including Form 1 offences): 6 years imprisonment from 29 August 2011, non-parole period of 2 years and 9 months expiring 28 May 2014.
- Aggregate: 9 years and 3 months from 29 May 2008 to 28 August 2017, non-parole period of 6 years expiring 28 May 2014.
Key Takeaways
- Under rules 50B and 50C of the Criminal Appeal Rules, an application to vary or set aside an order made within 14 days of entry on JusticeLink operates nunc pro tunc: the entry is treated as if it never occurred, and the Court retains full power to reconsider the orders.
- The Court of Criminal Appeal cannot extend the 14-day window under rule 50C(2) or (3), making timely application critical to invoking this mechanism.
- As a superior court of record exercising jurisdiction under the Criminal Appeal Act 1912, the Court of Criminal Appeal retains an independent power to correct entered orders in certain circumstances, even outside the rule 50C window, as confirmed in Jones & Hili (No 2).
- Where a discrepancy exists between the body of the reasons for judgment and the coversheet, the body of the reasons, as the document recording the Court's actual reasoning and stated intention, will ordinarily prevail.
- Discrepancies between electronically entered orders and the reasons for judgment may be corrected to give effect to the court's original intention, even where doing so alters the sentences as they were initially recorded on JusticeLink.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW), rules 50B and 50C
- Civil Procedure Act 2005 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A)-(3C)
Cases:
- Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69
- R v Glyn Morgan Jones; R v Anthony Joseph Luis Hili (No 2) [2010] NSWCCA 195
- Grierson v The Queen [1938] HCA 45; (1938) 60 CLR 431
- Elliott v The Queen; Blessington v The Queen [2007] HCA 51; 82 ALJR 82