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Court of Criminal Appeal 19 June 2015

Bruce Edward Gall v R (No 2)

[2015] NSWCCA 152

Other
CRIMINAL LAW CRIMINAL APPEAL ORDER ENTERED CRIMINAL APPEAL RULES R 50C(2) CRITERIA TO BE SATISFIED TO JUSTIFY RE OPENING

Citation: Bruce Edward Gall v R (No 2) [2015] NSWCCA 152
Court: Court of Criminal Appeal, New South Wales
Date: 19 June 2015
Judge(s): Hoeben CJ at CL; R A Hulme J; Davies J

Background

The applicant had been convicted of being an accessory after the fact to murder following a trial in 2012. His appeal against both conviction and sentence was dismissed by the Court of Criminal Appeal on 20 April 2015 (Gall v R; Gall v R [2015] NSWCCA 69).

Ten days after that judgment, the applicant applied under Rule 50C(2) of the Criminal Appeal Rules to re-open the appeal. His application focused on a conversation recorded by a listening device, a transcript of which had been tendered at trial. The transcript was a central piece of evidence in the Court's reasoning on whether the "proviso" applied to a misdirection ground of appeal.

The applicant argued that the Court had misapprehended the facts by treating the transcript as an accurate record of what was said, when the underlying audio recording allegedly showed a material transcription error that would have supported his case.

  • Whether the applicant's application was made within the 14-day window permitted by Rule 50C(2) of the Criminal Appeal Rules.
  • Whether the Court had proceeded under a "misapprehension of fact or law" sufficient to justify re-opening the appeal under Rule 50C.
  • Whether the proposed re-opening was, in substance, an attempt to raise arguments that could and should have been raised at trial or on appeal but were not.
  • Whether any misapprehension of fact could be attributed to the applicant's own conduct rather than an error by the Court.

Decision

Hoeben CJ at CL (with Hulme J and Davies J agreeing) dismissed the application. The Court accepted that the application was filed within the 14-day window, but found that the requirements for re-opening had not been satisfied.

The Court found that no misapprehension of fact had occurred. The transcript had been tendered at trial without challenge to its accuracy as to the specific passage in question. Although the jury had been given the standard direction to listen to the recording for themselves, the applicant had not, at trial or on appeal, disputed the accuracy of the contested portion of the transcript. The Court noted that the only challenge to the transcript had come from Kevin Gall's counsel in a supplementary written submission, and even that challenge had not been pursued by the applicant himself.

The Court characterised the real nature of the application as an attempt to re-argue the appeal on a different basis to that adopted at both trial and on the appeal. That is not the purpose of the Rule 50C power.

Critically, even if some form of factual misapprehension could be identified, the Court held that it was attributable solely to the manner in which the applicant had conducted his own case. Nothing had prevented the applicant or his legal advisers from listening to the relevant audio exhibit and making submissions about it at any earlier stage. A party cannot invoke Rule 50C to remedy deficiencies that resulted from their own forensic choices.

Orders Made

  • The application under Rule 50C of the Criminal Appeal Rules to vary the orders made by the Court of Criminal Appeal on 20 April 2015 was dismissed.

Key Takeaways

  • Rule 50C(2) of the Criminal Appeal Rules permits an application to set aside or vary an entered order, but only within 14 days of entry, and that time cannot be extended.
  • The power to re-open under Rule 50C is not engaged simply because a party wishes to advance a new or different argument. The applicant must establish a genuine misapprehension of fact or law that materially affected the judgment.
  • Where any misapprehension of fact is attributable solely to the applicant's own failure to raise an issue at trial or on appeal, that misapprehension will not satisfy the Rule 50C threshold.
  • In dismissing the application, the Court of Criminal Appeal confirmed that Rule 50C cannot be used as a mechanism to remedy deficiencies in the way a party conducted its own case.
  • A transcript tendered at trial without challenge to its accuracy in a specific respect will generally be treated as an accepted record of that material; a post-appeal attempt to contest accuracy will face significant obstacles.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Rules, r 50C
- Criminal Appeal Act 1912 (NSW), s 6(1) (the proviso)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases:
- Gall v R; Gall v R [2015] NSWCCA 69 (the principal judgment)
- Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300
- Burrell v The Queen [2008] HCA 34; 238 CLR 218
- Elliott v The Queen; Blessington v The Queen [2007] HCA 51; 234 CLR 38
- Akkawi, Mark v R; Akkawi, Paul v R (No 2) [2013] NSWCCA 72
- Baghdadi v R (No 2) [2012] NSWCCA 77
- R v Jones; R v Hili (No 2) [2010] NSWCCA 195; 79 NSWLR 143
- KW v R (No 2) [2013] NSWCCA 84
- PFC v R (No 2) [2014] NSWCCA 241
- R v Ly (No 2) [2014] NSWCCA 91
- Alramadan v DPP (NSW) [2007] NSWCCA 322
- Alramadan v DPP (NSW) (No 2) [2008] NSWCCA 69
- Kauwenberghs v R [2009] NSWCCA 201
- R v AB [2011] NSWCCA 229; R v AB (No 2) [2011] NSWCCA 256
- Grierson v R [1938] HCA 45; 60 CLR 431