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Court of Criminal Appeal 28 March 2014

GREALISH, Peter v R (No 2)

[2014] NSWCCA 38

Public order & justice offences
PRACTICE AND PROCEDURE

Citation: GREALISH, Peter v R (No 2) [2014] NSWCCA 38
Court: Court of Criminal Appeal, New South Wales
Date: 28 March 2014
Judge(s): Leeming JA; Adams J; Hall J

Background

In December 2013, the Court of Criminal Appeal allowed the offender's sentencing appeal, quashed the District Court's sentence, and resentenced him for offences under the Police Integrity Commission Act 1996 (NSW) and the Crimes Act 1900 (NSW). The resentencing involved partial accumulation of sentences, with the result that the non-parole period under the principal offence ran from 26 May 2013 and expired on 25 January 2014.

When the judgment was published, a discrepancy emerged between the orders actually made and the written reasons. Paragraph 75 of the original judgment stated that the sentence under section 107 of the Police Integrity Commission Act should be accumulated upon the section 178BB sentences "by a period of two months." The orders, however, reflected an accumulation of only one month.

This No 2 judgment dealt solely with that discrepancy, and whether the published reasons should be corrected to align with the Court's actual intention.

  • Whether a disconformity between the Court's orders and its published reasons constituted a slip capable of correction
  • Whether the Court of Criminal Appeal had power to amend its published reasons to correct such a slip

Decision

The Court found that the reference to "two months" in paragraph 75 of the original judgment was erroneous. All members of the Court had intended an accumulation of one month, and that intention was correctly reflected in the orders that were formally made.

The Court confirmed its power to alter its published reasons where a slip has occurred and the reasons do not accurately reflect the Court's intention as manifested in its orders. The Court relied on its earlier decision in R v Jones; R v Hili (No 2) [2010] NSWCCA 195 as authority for that power.

No substantive change to the reasoning or outcome was involved. The correction was limited to replacing the erroneous phrase "two months" with "one month" in paragraph 75 of the original judgment.

Orders Made

  • The reasons for judgment in the principal judgment (Grealish v R [2013] NSWCCA 336) are amended by replacing the words "two months" in paragraph [75] with the words "one month."

Key Takeaways

  • The Court of Criminal Appeal has power to amend its published reasons where a slip exists and the reasons do not accurately reflect the Court's intention as embodied in its formal orders.
  • Relying on R v Jones; R v Hili (No 2) [2010] NSWCCA 195, the Court confirmed that this corrective power extends to cases where there is a disconformity between the orders and the written reasons, not merely errors confined within the reasons themselves.
  • A discrepancy of this kind does not require any change to the substance of the court's reasoning or conclusions, only correction of the erroneous expression.
  • Where formal orders and published reasons conflict, the orders represent the authoritative record of the Court's actual decision.
  • No variation to the offender's sentence resulted from this No 2 judgment; the non-parole period and balance of term remained as originally fixed in the December 2013 orders.

Legislation and Cases Referenced

Legislation:
- Police Integrity Commission Act 1996 (NSW), s 107
- Crimes Act 1900 (NSW), s 178BB(1)

Cases:
- Grealish v R [2013] NSWCCA 336 (the principal judgment)
- R v Jones; R v Hili (No 2) [2010] NSWCCA 195; 79 NSWLR 143