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Court of Criminal Appeal 5 December 2019

El Ali v R (No 2)

[2019] NSWCCA 289

Firearms & weapons
CRIMINAL LAW PROCEDURE JUDGMENT ON APPEAL APPLICATION TO SET ASIDE OR VARY ORDERS JURISDICTION TO RECONSIDER APPEAL PRINCIPLE OF FINALITY

Citation: El Ali v R (No 2) [2019] NSWCCA 289
Court: Court of Criminal Appeal, NSW
Date: 5 December 2019
Judges: Basten JA; Simpson AJA; N Adams J

Background

The applicant had been convicted after a jury trial on charges relating to conspiracy to import firearm parts, conspiracy to possess firearm parts, and knowingly taking part in the sale of a pistol on three or more occasions within a 12-month period. On 30 August 2019, the Court of Criminal Appeal granted leave to appeal (to the extent necessary) but dismissed the appeal, with orders formally entered on the same day.

On 10 September 2019, the applicant filed an application seeking to set aside or vary the judgment under r 50C of the Criminal Appeal Rules. His basis was that the Court had failed to address two of the grounds in his notice of appeal, identified as grounds 2 and 5, or had failed to engage adequately with his submissions on those grounds.

The Commonwealth Director of Public Prosecutions, who had conducted the trial in relation to the two State offences, advised that she did not wish to respond to the application. The Court nonetheless considered it necessary to determine, as a threshold matter, whether it had jurisdiction to entertain the application at all.

  • Whether r 50C of the Criminal Appeal Rules confers valid jurisdiction on the Court of Criminal Appeal to reconsider an appeal after orders have been formally entered
  • Whether s 12 of the Criminal Appeal Act 1912 (NSW), which incorporates civil appellate powers, operates in an "ambulatory" way so as to pick up powers introduced into the civil jurisdiction after the Act's enactment
  • Whether the Court had in fact failed to address grounds 2 and 5 of the applicant's notice of appeal
  • If those grounds were not addressed, whether the orders should be set aside or varied on their merits

Decision

Jurisdiction under r 50C

The Court traced the long-standing principle, established in Grierson v The King (1938) and confirmed by the High Court in Burrell v The Queen (2008), that once a criminal appeal is determined and orders formally entered, the Court has no power to reopen it. Rule 50C was introduced in 2007 to create a narrow window for reconsideration: it permits an application to set aside or vary an entered order if made within 14 days, and allows the Court to treat the order as if it had not been entered for the purposes of any such application.

The Court considered whether a rule of court could validly confer a power that the governing statute had previously been held not to provide. It concluded, on the preferable view, that provisions governing the formal entry of judgments and their timing are administrative matters within the rule-making power in s 28(2) of the Criminal Appeal Act. Rule 50C was therefore held to fall within that power, at least given that its validity was not challenged.

Ambulatory operation of s 12

As an alternative basis for jurisdiction, the Court reasoned that s 12(1) of the Criminal Appeal Act, which extends to criminal appeals the powers available in civil appeals, operates in an ambulatory way. Drawing on the High Court's reasoning in The Queen v Gee (2003) regarding the Judiciary Act 1903 (Cth), the Court held that s 12 picks up civil appellate powers as they exist from time to time, including powers introduced by subsequent amendments to the Uniform Civil Procedure Rules. This provided a separate route to the same jurisdictional conclusion.

Grounds 2 and 5 on reconsideration

Having established jurisdiction, the Court granted leave under r 50C(1A) and reconsidered the material in support of grounds 2 and 5. After that reconsideration, the Court was not persuaded that the orders should be disturbed. The application to set aside or vary the original orders was dismissed.

Orders Made

  • Leave granted to the applicant to apply, pursuant to r 50C(1A) of the Criminal Appeal Rules, to set aside or vary the judgment of 30 August 2019.
  • Having reconsidered the material in support of grounds 2 and 5, the application to set aside or vary the orders was dismissed.

Key Takeaways

  • Rule 50C of the Criminal Appeal Rules provides a limited, time-bound mechanism for reconsidering entered orders in criminal appeals. The Court of Criminal Appeal confirmed that the rule falls within the rule-making power under s 28(2) of the Criminal Appeal Act, though the court noted its validity was not formally challenged and reserved the question conclusively.
  • The principle of finality in criminal appeals, established in Grierson and reinforced in Burrell, remains the baseline. Rule 50C operates as a narrow, defined exception to that principle, not a general licence to reopen appeals.
  • Section 12 of the Criminal Appeal Act, which incorporates civil appellate powers into the criminal appellate jurisdiction, was held to operate ambulatorily. It picks up powers conferred on the Supreme Court in civil appeals as those powers develop over time, not merely as they stood when the Act was enacted in 1912.
  • An application under r 50C must be made within 14 days of the order being entered. The Court has no power to extend that time limit, and the rule expressly states as much.
  • In dismissing the substantive application, the Court found no basis to disturb the original orders after reconsidering the submissions on grounds 2 and 5, meaning the applicant's convictions remained on foot.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 12, 28
- Criminal Appeal Rules (NSW), rr 50C, 51
- Uniform Civil Procedure Rules 2005 (NSW), rr 36.11, 36.16
- Firearms Act 1996 (NSW), ss 4, 51, 51B, 51D
- Crimes Act 1900 (NSW), ss 33, 110
- Judiciary Act 1903 (Cth), s 68

Cases
- Grierson v The King (1938) 60 CLR 431; [1938] HCA 45
- Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
- DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17
- The Queen v Gee (2003) 212 CLR 230; [2003] HCA 12
- Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Elliott v The Queen; Blessington v The Queen (2007) 234 CLR 38; [2007] HCA 51
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- The Queen v A2 [2019] HCA 35
- Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58
- O'Neil-Shaw v The Queen [2010] NSWCCA 42
- Kauwenberghs v R (Cth) [2009] NSWCCA 201
- R v Dodd (1991) 56 A Crim R 451