Citation: Miller v R (No 2) [2016] NSWCCA 158
Court: NSW Court of Criminal Appeal
Date: 10 August 2016
Judges: Beazley P; Fullerton J; Hamill J
Background
The applicant had been convicted of one count of dishonestly obtaining a financial advantage by deception and twenty counts of using a false instrument under the Crimes Act 1900 (NSW). His original appeal against conviction, which challenged the admissibility of voice identification, visual identification, and handwriting identification evidence, was dismissed by the Court of Criminal Appeal on 3 August 2015.
Within the fourteen-day period permitted by r 50C of the Criminal Appeal Rules, the applicant filed a notice of motion seeking to have that judgment and its orders set aside. He argued that the Court had made errors of fact and law in deciding his appeal, and that certain identification evidence should have been found inadmissible. He also contended the Court had failed to address evidence said to raise a credible alternative hypothesis.
In addition to the r 50C application, the applicant sought to rely on r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW). He also applied for an adjournment, sought the disqualification of all NSW Supreme Court justices from his matters, and applied for the recusal of the three judges constituting the Court at the hearing.
Legal Issues
- Whether r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) applies to criminal appeals in the Court of Criminal Appeal
- Whether r 50C of the Criminal Appeal Rules permits the re-agitation of issues that were argued and determined in the original appeal
- Whether the applicant's specific grounds, including challenges to identification evidence and an alleged failure to address a credible alternative hypothesis, fell within the scope of r 50C
- Whether the adjournment application and the recusal applications should be granted
Decision
The Court dismissed all preliminary applications before turning to the substantive motion. The adjournment application was refused because the applicant had two months' notice of the hearing date, had not explained why legal representation was not secured earlier, and had plainly prepared written and oral submissions. The disqualification and recusal applications were also refused: the Court as constituted had no power to disqualify other justices, and no proper basis for recusal of the sitting judges was established.
On the question of r 36.16 of the UCPR, the Court held that rule has no application to criminal appeals. The UCPR is a civil procedural instrument, and its slip-correction provision does not extend to the criminal jurisdiction of the Court of Criminal Appeal.
The Court then considered the scope of r 50C. Grounding its reasoning in the principle of finality of litigation, the Court confirmed that r 50C is a rule of narrow operation. It is primarily directed at correcting slips, mistakes, and infelicitous language, and extends to situations where a court genuinely failed to deal with an issue that was actually argued. It does not permit an unsuccessful appellant to re-run arguments that were heard and determined.
Applying those principles to the applicant's grounds, the Court found that each argument amounted to an attempt to re-agitate issues already addressed in the principal judgment. The Court's principal judgment had independently assessed the identification evidence, including instances where witnesses could not identify or wrongly identified a voice, and had found the overall voice identification evidence strong. There was no demonstrated failure to address any issue actually argued. Accordingly, the notice of motion was dismissed.
Orders Made
• The applicant's notice of motion must be dismissed.
Key Takeaways
- Rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) has no application in criminal appeal proceedings before the Court of Criminal Appeal.
- Under r 50C of the Criminal Appeal Rules, the court's power to reopen a decision is narrow. The rule is primarily confined to correcting slips, mistakes, and infelicitous language, and to addressing issues that were genuinely left unresolved after argument.
- Re-agitating grounds of appeal that were raised and determined in the original proceedings falls outside the purview of r 50C. The principle of finality of litigation is a significant constraint on the rule's operation.
- No error was established in the Court of Criminal Appeal's treatment of the identification evidence. The principal judgment had independently assessed the voice, visual, and handwriting evidence, as required, and the applicant's challenges amounted to disagreement with those conclusions rather than identification of a genuine slip or omission.
- Adjournment applications made on the basis of unretained legal representation or a desire for further advice on recent authority will not succeed where the applicant had substantial notice of the hearing date and demonstrated capacity to argue the matter fully.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 178BA, 300(2)
- Criminal Appeal Rules (NSW), r 50C
- Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Cases
- Miller v R [2015] NSWCCA 206 (principal judgment)
- Miller v R [2015] NSWCCA 205
- D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
- Burrell v The Queen [2008] HCA 34; 238 CLR 218
- Achurch v The Queen [2014] HCA 10; 253 CLR 141
- IMM v The Queen [2016] HCA 14
- Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69
- Baghdadi v R (No 2) [2012] NSWCCA 77
- Gall v R (No 2) [2015] NSWCCA 152
- Clark v R [2015] NSWCCA 265
- Application of Malcolm Potier [2015] NSWCCA 199
- Alkawi v R (No 2) [2013] NSWCCA 72
- Humphries v R; Ponfield v R (No 2) [2016] NSWCCA 91
- Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300
- Johnson v Johnson [2000] HCA 48; 201 CLR 488