Citation: Application of Malcolm Potier (No. 2) [2015] NSWCCA 249
Court: Court of Criminal Appeal, New South Wales
Date: 14 September 2015
Judge(s): Hoeben CJ at CL, Davies and Hamill JJ
Background
The applicant had made a series of applications to the Court of Criminal Appeal, all of which were dismissed in a principal judgment delivered on 3 August 2015 (Application of Malcolm Potier [2015] NSWCCA 199). Two weeks later, on 17 August 2015, the applicant sought to reopen that judgment under r 50C of the Criminal Appeal Rules.
The applicant, who was self-represented, raised four grounds for reopening: alleged mistakes of law concerning the court's inherent jurisdiction; an alleged mistake of fact about the status of his parole consideration; an alleged mistake of law in the handling of his bail application; and an alleged mistake of law arising from the court having commented on a separate, ongoing r 50C application.
The applicant also sought leave to file further comprehensive submissions if the application was accepted. The Court declined to permit additional submissions, given the nature of the r 50C jurisdiction and the material already before it.
Legal Issues
- Whether any of the four grounds raised by the applicant fell within the proper scope of r 50C of the Criminal Appeal Rules, which permits the court to set aside or vary an order within 14 days of its entry
- Whether the court had made an error of law in assessing its own inherent jurisdiction
- Whether a background factual observation about the applicant's parole conduct constituted a material error of fact capable of affecting the outcome
- Whether the court had erred in refusing the bail application in the absence of Crown representation
- Whether the court had improperly pre-judged a separate, pending r 50C application by commenting on the prospects of the earlier judgment being altered
Decision
The Court confirmed that r 50C is a rule of limited application. Drawing on its recent decisions in Bruce Edward Gall v R (No 2) [2015] NSWCCA 152 and Miller v R [2015] NSWCCA 205, the Court reiterated that the rule exists primarily to correct obvious mistakes in language or outcomes that do not reflect the court's intention, such as slips, omissions, miscalculations, or overlooked grounds of appeal. It does not provide a vehicle for an unsuccessful applicant to relitigate matters already decided, or to run what would effectively be a new appeal.
On the alleged jurisdictional mistake, the Court found no error. The question of the Court's jurisdiction had already been addressed in the principal judgment, and the applicant's submission was characterised as misconceived.
The alleged mistake of fact about parole was also rejected. The court's observation on that point had been made in passing and was purely background, not a material finding bearing on the outcome. The alleged bail error was similarly dismissed: the transcript confirmed the applicant had himself accepted at the hearing that the bail application could not proceed that day, given Crown representation had not been arranged.
As to the fourth ground, the Court found no error in having commented on the prospects of the earlier 3 June 2015 judgment being altered. That assessment had been relevant to the court's discretion under s 151 of the Migration Act 1958 (Cth) when considering whether to issue a warrant, and the reasoning adopted was consistent with the principles in Gall. None of the four matters was appropriate for resolution under r 50C, and the application was refused.
Orders Made
No orders were made in this decision.
Key Takeaways
- Rule 50C of the Criminal Appeal Rules is confined to correcting clear slips, omissions, or outcomes that do not reflect the court's intention. It does not permit a form of backdoor appeal or relitigation of decided matters.
- As confirmed in Miller v R [2015] NSWCCA 205, there is no jurisdiction to rehear a determined appeal simply on the basis that an applicant contends the court's conclusion was wrong. The proper avenue for such a challenge is a further appeal, subject to obtaining special leave.
- A background factual observation that is immaterial to the outcome does not constitute the kind of error capable of supporting a r 50C application, even if the applicant disputes its accuracy.
- An application under r 50C that would require more than summary consideration and determination of the impugned judgment or order is likely to fall outside the rule's scope.
- The Court of Criminal Appeal confirmed that it may, when exercising a discretion under s 151 of the Migration Act 1958 (Cth), take into account the likelihood of an earlier judgment of the court being altered, without that assessment constituting an improper pre-determination of a separate pending application.
Legislation and Cases Referenced
Legislation
- Migration Act 1958 (Cth), s 151
- Criminal Appeal Rules, r 50C
Cases
- Application of Malcolm Potier [2015] NSWCCA 199
- Potier v R [2015] NSWCCA 130
- Bruce Edward Gall v R (No 2) [2015] NSWCCA 152
- Miller v R [2015] NSWCCA 205
- Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
- R v Jones; R v Hili (No 2) [2010] NSWCCA 195; 79 NSWLR 143
- Baghdadi v R (No 2) [2012] NSWCCA 77
- Akkawi, Mark v R; Akkawi, Paul v R (No 2) [2013] NSWCCA 72
- KW v R (No 2) [2013] NSWCCA 84
- R v Ly (No 2) [2014] NSWCCA 91