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Court of Criminal Appeal 26 October 2018

Dickson v R (No 3)

[2018] NSWCCA 242

Other
APPEAL APPLICATION REFUSED NO ISSUE OF PRINCIPLE

Citation: Dickson v R (No 3) [2018] NSWCCA 242
Court: Court of Criminal Appeal, New South Wales
Date: 26 October 2018
Judge(s): Macfarlan JA; Schmidt J; Wilson J

Background

The appellant had his criminal appeal disposed of by the Court of Criminal Appeal on 10 June 2016. He subsequently applied to re-open that appeal, but the Court dismissed that application on 27 August 2018, finding it had no jurisdiction to disturb a judgment that had been finally concluded long before the application was filed.

On 10 September 2018, the appellant made a further application, this time seeking to set aside the 27 August 2018 judgment and, as a consequence, re-open the original 2016 appeal. Because this third application was filed within 14 days of the August 2018 judgment, a specific procedural rule came into play.

  • Whether the Court had power to set aside its judgment of 27 August 2018 given the timing of the application
  • Whether the appellant had identified any arguable basis to disturb the 27 August 2018 judgment
  • Whether the Court's conclusion on 27 August 2018 (that it lacked jurisdiction to re-open the original 2016 appeal) was open to doubt

Decision

Under rule 50C(3) of the Criminal Appeal Rules 1912 (NSW), the Court confirmed it does have power to set aside a judgment if an application is made within 14 days of that judgment being delivered. The appellant's application of 10 September 2018 fell within that 14-day window from the 27 August 2018 judgment, so the Court accepted it had the power to consider the application in relation to that judgment. The same power did not, however, extend to the original June 2016 judgment.

Despite having the power to consider the application, the Court found no arguable basis to exercise it. The appellant's written submissions provided no reason to doubt the correctness of the 27 August 2018 conclusion that the Court lacked jurisdiction to revisit the earlier appeal. The application was accordingly dealt with on the papers and dismissed.

Orders Made

  • The appellant's application of 10 September 2018 was dismissed.

Key Takeaways

  • Under rule 50C(3) of the Criminal Appeal Rules 1912 (NSW), the Court of Criminal Appeal has power to set aside one of its own judgments if an application is made within 14 days of delivery, but that power does not extend to earlier, separately concluded judgments.
  • A finding of no jurisdiction to re-open a final appeal is not disturbed simply because the applicant makes a further application targeting the judgment in which that finding was made.
  • No arguable basis was identified to challenge the Court's earlier conclusion that it lacked jurisdiction to revisit an appeal finally disposed of before the re-opening application was filed.
  • The Court of Criminal Appeal dealt with the application on the papers, reflecting that written submissions which raise no arguable ground do not require an oral hearing.
  • Repeated procedural applications that do not identify any error in the preceding judgment will not succeed merely because they are filed within an applicable time limit.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Rules 1912 (NSW), r 50C(3)

Prior proceedings in the same matter:
- Dickson v R [2016] NSWCCA 105 (original appeal, disposed of 10 June 2016)
- Dickson v R (No 2) [2018] NSWCCA 183 (application to re-open, dismissed 27 August 2018)