Citation: Dickson v R (No 2) [2018] NSWCCA 183
Court: NSW Court of Criminal Appeal
Date: 27 August 2018
Judges: Macfarlan JA; Schmidt J; Wilson J
Background
The applicant had been convicted of serious federal offences and sentenced in the Supreme Court. In 2016, the Court of Criminal Appeal dismissed his conviction appeal and allowed a Crown appeal against the leniency of his sentence, proceeding to resentence him. Those orders were entered on 10 June 2016.
The applicant then sought special leave to appeal to the High Court, which was refused in December 2016. One of the issues he raised in that application was that the Court of Criminal Appeal had failed to address a seventh ground of appeal (Ground 7), which had been added with leave during the hearing but had not reached the judges before judgment was written.
In November 2017, more than 17 months after the original orders were entered, the applicant filed a Notice of Motion in the Court of Criminal Appeal seeking to advance Ground 7 and approximately 30 additional conviction grounds, as well as 13 grounds directed at the sentence imposed on him at first instance (a sentence that had already been quashed and replaced by the Court of Criminal Appeal).
Legal Issues
- Whether the Court of Criminal Appeal retained jurisdiction to hear further or additional grounds of appeal after its original orders had been entered and the proceedings finalised.
- Whether the failure to address Ground 7 in the 2016 judgment provided a basis for reopening the appeal.
- Whether the applicant could challenge the Supreme Court sentence, given it had been quashed and replaced by the Court of Criminal Appeal.
- Whether the Court could entertain an appeal against its own resentencing orders.
Decision
The Court unanimously held that it had no jurisdiction to entertain the application. Once final orders are entered, a court is functus officio, meaning it has exhausted its authority and cannot revisit the matter. Macfarlan JA identified the key principle from Burrell v The Queen (2008) 238 CLR 218: the formal recording of an order marks the point at which the court's power to reconsider ends, providing a clear and certain criterion for finality.
Three narrow exceptions to that rule were examined and each was found inapplicable. The slip rule, which allows correction of a formal order that does not reflect what the court intended, did not apply because there was no suggestion the entered orders differed from those the Court meant to make. Rule 50C of the Criminal Appeal Rules, which permits variation of orders if an application is made within 14 days of entry, was unavailable because the applicant made no such application in time. Rule 25A, allowing additional grounds while an appeal is on foot, operates only during live proceedings and cannot revive concluded ones.
On the sentence grounds, the Court noted two independent obstacles. The Supreme Court sentence had been quashed entirely, so there was no longer a first-instance sentence against which an appeal could lie. Further, the operative sentence was the one imposed by the Court of Criminal Appeal itself in 2016, and this Court has no jurisdiction to sit as an appellate body reviewing its own decisions.
Wilson J noted that the failure of Ground 7 to reach the judges, while unfortunate in its origin, did not confer jurisdiction to reopen proceedings that had been fully and finally determined. The applicant had also raised this omission in his High Court special leave application but did not press it in oral argument before the High Court, which further undercut the suggestion that it warranted special treatment.
Orders Made
The Court of Criminal Appeal's orders from 2016, which were the subject of the finality analysis, were:
- Leave to appeal refused on grounds 1 and 2 of the conviction appeal.
- Conviction appeal otherwise dismissed.
- Crown sentence appeal upheld; Supreme Court sentences set aside.
- Applicant resentenced: 9 years' imprisonment for count 1 (commencing 22 December 2014, expiring 21 December 2023); 12 years' imprisonment for count 6 (commencing 22 December 2016, expiring 21 December 2028); single non-parole period of 9 years and 3 months expiring 21 March 2024.
In the 2018 decision, the Court dismissed the applicant's Notice of Motion.
Key Takeaways
- The Court of Criminal Appeal confirmed that once its orders are formally entered, the court is functus officio and cannot reopen the appeal, regardless of the nature of the asserted error.
- A ground of appeal that was not addressed in the judgment does not survive the entry of final orders as a free-standing basis for reviving jurisdiction.
- Under Rule 50C of the Criminal Appeal Rules, the only window to seek variation of entered orders is within 14 days of entry; applications made well outside that period cannot be entertained.
- Where a Crown appeal against sentence is upheld and the appellate court resentences, the original first-instance sentence is extinguished, and no appeal against that quashed sentence can proceed.
- A court cannot hear an appeal against its own orders: in dismissing the application, the Court reiterated that the Court of Criminal Appeal has no appellate jurisdiction over decisions it has itself made.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6
- Criminal Appeal Rules 1912 (NSW), rr 25A, 50C
- Crimes Act 1914 (Cth), s 19AB(1)
- Criminal Code (Cth), ss 11.5(1), 135.4(5)
Cases:
- Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
- Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49
- Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10
- Grierson v The King (1938) 60 CLR 431; [1938] HCA 45
- Elliott v The Queen [2007] HCA 51
- R v AN (No 2) (2006) 66 NSWLR 523; [2006] NSWCCA 218
- DAO v R (No 2) [2014] NSWCCA 126
- Dickson v R [2016] NSWCCA 105
- Dickson v The Queen [2016] HCATrans 307
- Haidari v The Queen [2014] VSCA 91
- Burrell v R [2007] NSWCCA 65; R v Burrell [2007] NSWCCA 79