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Court of Criminal Appeal 3 August 2015

Miller v R

[2015] NSWCCA 205

Fraud & dishonesty
CRIMINAL LAW NATURE OF THE APPLICATION NOT REHEARING OF APPEAL MATTERS CAPABLE OF CORRECTION

Citation: Miller v R [2015] NSWCCA 205
Court: Court of Criminal Appeal, New South Wales
Date: 3 August 2015
Judge(s): Hoeben CJ at CL, Hidden J, Adams J (all agreeing)

Background

The applicant had been convicted by a jury in the District Court in June 2007 on charges of obtaining financial advantage by deception and using a false instrument, arising from alleged frauds connected with the purchase of a thoroughbred racehorse. He received an overall sentence of four years imprisonment. In August 2009, he was further convicted in the District Court on a series of deception and false instrument charges arising from alleged frauds on a different victim, receiving sentences totalling several years imprisonment. Additional convictions in 2012 resulted in a further ten-year term.

In March 2014, the Court of Criminal Appeal dismissed the applicant's appeal against his 2007 and 2009 convictions and sentences. The applicant then filed an application under r 50C of the Criminal Appeal Rules (NSW), seeking to set aside that judgment and have the appeals reopened and redetermined. He also sought a review of two refusals to grant him bail, and initially sought the disqualification of all Justices of the Court (though that application was not pressed at the hearing).

The applicant's primary complaint was that the 2014 appellate judgment contained manifest errors of law and fact, omitted proper consideration of his grounds, and failed adequately to assess the credibility of Crown witnesses and the significance of allegedly withheld documentary evidence seized by police in 2005.

  • Whether r 50C of the Criminal Appeal Rules permits the Court of Criminal Appeal to reopen a dismissed appeal and redetermine it on the merits.
  • Whether the application, as framed, fell within the proper scope of r 50C, or whether it amounted to an impermissible attempt to relitigate a concluded appeal.
  • Whether additional evidence, including police records and witness attendance, could be compelled in support of a r 50C application.
  • Whether the Court had jurisdiction to review the refusals to grant bail that arose in related proceedings.

Decision

Adams J (with whom Hoeben CJ at CL and Hidden J agreed) dismissed the application in its entirety. His Honour confirmed that r 50C is a narrow procedural mechanism that allows correction of specific errors in a concluded appellate decision. It does not permit a rehearing of the appeal or a re-examination of the merits of the underlying grounds.

The applicant's submissions, while framed as identifying errors in the 2014 judgment, were in substance an attempt to reargue the same grounds that had already been considered and dismissed. His Honour noted that the applicant himself acknowledged, at paragraph 104 of his submissions, that his r 50C grounds were "indistinguishable in substance" from those in the original appeal. That concession was fatal to the application.

The applicant's specific grounds were addressed in turn. The fresh evidence grounds and disclosure complaints were matters that could only be ventilated on a substantive appeal, not through r 50C. The unreasonable verdict ground was equally unavailable. The misdirection ground should have been raised within the original appeal and could not be revived through this mechanism.

The applications for production of police documents and for the attendance of Detective Hetherington to give evidence were refused. Adams J acknowledged that additional evidence is not always inadmissible under r 50C, offering the example of gaol records relevant to a sentencing date error. However, where material is sought to advance a substantive appellate ground, it falls outside the Court's jurisdiction under the rule. The bail review application was also rejected, both because it was not properly before the Court as constituted and because, following dismissal of the pending appeal, it was in any event irrelevant.

Orders Made

• The application should be dismissed.

Key Takeaways

  • Rule 50C of the Criminal Appeal Rules (NSW) is a limited corrective mechanism, not a vehicle for reopening and rehearing a concluded appeal on its merits.
  • Where an applicant's r 50C grounds are, on their face, indistinguishable in substance from the grounds already dismissed on appeal, the application cannot succeed.
  • A court's jurisdiction under r 50C to receive additional evidence is confined: evidence going to specific correctible errors (such as administrative or arithmetic errors in sentences) may be permissible, but evidence directed at substantive appellate grounds is not.
  • In dismissing the fresh evidence and non-disclosure grounds, the Court of Criminal Appeal confirmed that matters requiring substantive appellate consideration must be pursued through an ordinary appeal, not through r 50C.
  • Grounds that were available but not raised within the original appeal, such as the misdirection complaints in this case, cannot be introduced for the first time through a r 50C application.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Rules (NSW), r 50C
- Crimes Act 1900 (NSW), ss 178BA, 178BB, 300(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43
- Criminal Appeal Act 1912 (NSW)

Cases:
- Miller v R [2014] NSWCCA 34 (the earlier dismissed appeal)
- Achurch v The Queen [2014] HCA 10; (2014) 236 A Crim R 427
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
- DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226
- Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
- Jones v The Queen [1989] HCA 16; (1989) 166 CLR 409
- Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466
- Grierson v The King (1938) 60 CLR 431
- Akkawi v R (No 2) [2013] NSWCCA 72
- KW v R (No 2) [2013] NSWCCA 84
- Martin v R (No 2) [2013] NSWCCA 26
- Morgan v Regina (No 2) [2013] NSWCCA 80
- PFC v R (No 2) [2014] NSWCCA 241
- Buadromo v R (No 2) [2011] NSWCCA 55
- Kauwenberghs v R [2009] NSWCCA 201
- Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69
- Cooley v The State of Western Australia [2005] WASCA 160; (2005) 155 A Crim R 528