Supreme Court New South Wales Medium Neutral Citation: Semaan v Poidevin (No 2) [2013] NSWSC 694 Hearing dates: 13 December 2012, subsequent written submissions of 31 January 2013 and further hearing on 6 March 2013 Decision date: 03 June 2013 Jurisdiction: Common Law Before: Rothman J Decision: Amendment to reasons within power Catchwords: COURTS AND JUDGES - capacity of Court to correct reasons for judgment for slip and/or ambiguity - correction made after judgment entered; APPEAL - reasons for judgment - slip and/or ambiguity - judgment already entered - capacity of Court to alter wording - correction made to reasons for judgment - superior court of record - power in criminal proceedings Legislation Cited: Civil Procedure Act 2005 Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Criminal Appeal Act 1912 Uniform Civil Procedure Rules 2005 Cases Cited: Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 Elliott v The Queen; Blessington v The Queen [2007] HCA 51; (2007) 234 CLR 38 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Fletcher Construction Australia Ltd v Lines MacFarlane Marshall Pty Ltd [2001] VSCA 167; (2001) 4 VR 28 Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 R v Glyn Morgan JONES; R v Anthony Joseph Luis HILI (No 2) [2010] NSWCCA 195 Category: Consequential orders Parties: Richard Semaan (Plaintiff) Sergeant Damien Poidevin (Defendant) Representation: Counsel: M Dennis (Plaintiff) N Adams SC (Defendant) Solicitors: Nyman Gibson Stewart (Plaintiff) Crown Solicitor's Office (Defendant) File Number(s): 2012/149182 Publication restriction: None Decision under appeal Jurisdiction: 9109 Date of Decision: 2012-04-04 00:00:00 Before: Connell LCM File Number(s): 2012/149182 Judgment 1On 22 March 2013, the Court issued the principal judgment (hereinafter, "the principal judgment" or, in the case of the reasons, "the first reasons"). On 3 April 2013, the parties were notified by email that the reasons for judgment, which had been published by the Court, did not take into account the final amendments to the reasons, the inclusion of which amendments better expressed the original intention of the Court. 2Additions were made to paragraphs [76], [77] and [110] of the judgment of 22 March 2013, and amended reasons for judgment (hereinafter, "the amended reasons") were attached to the aforementioned correspondence. No variation was made to the orders of Court that were made on 22 March 2013. 3The parties were invited to provide the Court with written submissions regarding any aspect of the amendment of the reasons for judgment. Neither party raised objection to the amendment on the basis of the correspondence. The amended reasons were published by the Court on 5 April 2013. 4It is necessary to state that the proceedings concerned an appeal against conviction in the Local Court of New South Wales. On 4 April 2012 in the Local Court, Mr Semaan was found guilty of resisting a police officer in the execution of duty, contrary to s 546C of the Crimes Act 1900. On 22 March 2013, this Court, as presently constituted, ordered that: (1) the order made by the Local Court of New South Wales convicting Mr Semaan of the offence of resist a police officer in the execution of his or her duty be set aside; and, (2) the charge against Mr Semaan, being that on 14 September 2011 at Auburn, he did resist Sergeant Poidevin, a member of the Police Force in the execution of his duty, be dismissed. It is unnecessary to recite in detail the facts and circumstances of the conduct giving rise to proceedings. They are described fully in the amended reasons (and in the first reasons). Consideration 5As stated by the Court in its reasons, this was a conviction appeal pursuant to the provisions of s 52 of the Crimes (Appeal and Review) Act 2001. The application of the provisions of the Uniform Civil Procedure Rules 2005 (hereinafter, "UCPR") to such an appeal is an issue to which the Court's attention has been drawn by the Crown Solicitor, notwithstanding that the Crown did not object to the content of the amendments. 6It is not immediately apparent why the Crown has raised the application of the UCPR. 7If the UCPR were applicable to these proceedings, an amendment to the judgment could be effected pursuant to Part 36 Division 4. Under the UCPR, a judgment is taken to have been entered when it has been recorded in the court's computerised court record system: r 36.11. Rule 35.15(2) provides that a judgment or order of the Court in any proceedings may be set aside by order of the court if the parties to the proceedings consent. Rule 16.16(3)(a) provides that the court may set aside or vary any judgment or order except so far as it determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief. Further, the UCPR provides that, within 14 days of a judgment or order having been entered, the court may, of its own motion, set aside or vary the judgment or order as if the judgment or order had not been entered: r 16.16(3B). 8Whatever be the position at common law, the definitions contained within the Civil Procedure Act 2005 preclude the application of the UCPR to an appeal from conviction in the Local Court. On that basis, it was suggested that the provisions of Part 36 Division 4 of the UCPR do not provide for the variation of the judgment handed down by the Court in this matter. 9Section 3 of the Civil Procedure Act defines "criminal proceedings" to include "proceedings on an appeal against conviction or sentence". "[C]ivil proceedings" are defined by the section as "any proceedings other than criminal proceedings". Pursuant to r 1.5 UCPR, with reference to Schedule 1, the UCPR apply to "[a]ll civil proceedings" in the Supreme Court of New South Wales. Assuming, therefore, that an appeal on conviction to this Court from the Local Court of New South Wales is a criminal proceeding as defined by the Civil Procedure Act, such proceedings are not subject to the UCPR and the variation of orders of the Court in those proceedings are not governed by UCPR Part 36. These rules may be necessary because the rules apply to civil proceedings in courts other than this Court, which has inherent power and jurisdiction. 10However, the amendment effected is not an amendment to a judgment. It is an amendment to the wording of the reasons for judgment. Nevertheless I will deal with the issue, because it informs the process. 11The power of the Court to vary an order already entered (and reasons for judgment) was considered at length by the Court of Criminal Appeal in R v Glyn Morgan JONES; R v Anthony Joseph Luis HILI (No 2) [2010] NSWCCA 195 ("Jones & Hili (No 2)"). In that case, the amendment was required of a statement or wording in the reasons for judgment. The Court there discussed the status of the Court of Criminal Appeal as the Supreme Court when exercising the jurisdiction confirmed by the Criminal Appeal Act 1912. After analysis of the powers of the Court of Criminal Appeal deriving from its status, it was held that the Court of Criminal Appeal is the Supreme Court for the purposes of exercising the jurisdiction under the Criminal Appeal Act and, therefore, a superior court of record. 12As stated earlier, in Jones & Hili (No 2), as in the proceedings presently before the Court, the Court dealt with the power to correct reasons for judgment. The Court said: "[27] Reasons for judgment are not the judgment of the Court. The foregoing is trite. [28] The judgment of a court is entered and forms part of the record of the proceedings and, at common law and absent statutory expansion, forms the basis for certain prerogative writs: see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163. [29] Reasons for judgment do not ordinarily form part of the record of the court: Craig, supra; but, for the purpose of the issue of orders in the nature of certiorari, s 69 of the Supreme Court Act now renders reasons for judgment part of the record. [30] At least in part, for that reason, or derived in part from the principles that give rise to that reason, significant restrictions are imposed upon the jurisdiction of a superior court to alter judgments, once entered. [31] As stated in Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 at 436, Dixon J commented: 'The determination of an appeal is evidently definitive, and a conviction unappealed is equally final. No considerations controlling or affecting the conclusion to be deduced from these provisions are supplied by analogous civil proceedings.' His Honour was there referring to the effect of the Act. [32] Likewise in the joint judgment of Dawson and Gaudron JJ in Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 300, their Honours said: 'If a final order was made perfecting the decision of the Court of Criminal Appeal on Postiglione's first application, the assumption of jurisdiction to entertain his second application and the ensuing appeal was contrary to the decision of this Court in Grierson v The King [1938] HCA 45; (1938) 60 CLR 431. It was held in that case that the Criminal Appeal Act 1912 (NSW) does not confer jurisdiction to reopen an appeal which has been heard on the merits and finally determined. A fortiori, in a case where what is involved is the hearing of a second appeal. Pantorno does not suggest otherwise. The view was expressed in Pantorno that an intermediate court of appeal can entertain an application to remedy a denial of procedural fairness whether or not its order has been perfected (Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466 at 474 per Mason CJ and Brennan J, 484 per Deane, Toohey and Gaudron JJ.)' The foregoing approach was also adopted or accepted by McHugh J (at 315) and by Gummow J (at 327) in Postiglione, supra. [33] Thus, there are two quite distinct periods, each of which determines the ability to alter judgments or orders. Prior to the judgment being entered, the circumstances in which a court will be persuaded to entertain further argument (and possibly further evidence) are extremely limited. In relation to such earlier period, the High Court, in Elliott & Blessington applied the civil criteria expressed by the Court in Autodesk Inc v Dyason (No. 2) [1993] HCA 6; (1993) 176 CLR 300 which said, at 303: 'What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.' [34] On the other hand, after judgment has been entered there are only three bases upon which a judgment or order may be reopened and amended and they are: (a) the 'slip' rule; (b) the power to amend the rule (sic - order) where the intention of the Court has not manifested in the judgment; and (c) the capacity to allow the opening of orders made in chambers: see Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529; DJL, supra, CH Giles & Co v Morris (1972) 1 All ER 1960." 13In the circumstances of this case, it is open to the Court to alter the reasons for judgment (at [76], [77] and [110]), at least if those alterations were effected on one of the three bases described in [34] of Jones & Hili (No 2). The exact circumstances in which the final amendments were not included in the judgment published on 22 March 2013 matter not. The intention of the Court was more clearly expressed by the inclusion of the final amendments, which were published on 5 April 2013. As a consequence of their omission, "the intention of the Court has not manifested in the judgment": see Jones & Hili (No 2), at [34(b)]. 14As was pointed out in Jones & Hili (No 2), the proposition that a superior court of record has no power to alter a judgment or reasons for judgment cannot withstand scrutiny. Further, the power to alter reasons for judgment must at least be as wide as the power to alter the judgment itself. 15Moreover, an alteration to correct an infelicitous or ambiguous expression may alter the wording of the reasons, but not the reasons: see Jones & Hili (No 2) at [39]-[40]. 16The Court of Appeal of the Supreme Court of Victoria (Charles, Chernov and Vincent JJA) in Fletcher Construction Australia Ltd v Lines MacFarlane Marshall Pty Ltd [2001] VSCA 167; (2001) 4 VR 28 dealt with the capacity of judicial officers to alter reasons for judgment. The Court said: "[49] The extent to which judges of a superior court may properly alter reasons for judgment subsequent to their being given may depend not only on whether the changes are sought to be made before or after judgment has been entered, but also on the nature and extent of the alterations. A litigant is entitled to a decision that is based on reasons that have led the judge to that conclusion. It would obviously impede the proper administration of justice and work unfairness to the parties if the judge could, at a later time, give different reasons for the decision which were crafted after judgment had been pronounced. Thus, the courts limit the rights of a judge to change the reasons, but they do so consistently with the practical requirements of justice. In the case of a superior court of record, judgment is not relevantly finalised until it is entered in the records of the court. Hence, until that occurs, the judge can recall the order and the reasons and make a different order and give different reasons - Smith v. Australia and New Zealand Banking Group Ltd; Sherpa v. Anderson; Mulvena; Re Harrison's Shares Under a Settlement. But once judgment is perfected the judge cannot, in substance, re-write the given reasons so as to give different reasons for the decision or, in the words of Willmer, L.J. in Bromley v. Bromley (No.2), 'put a different complexion on the issue in dispute'. In Nakhla v. McCarthy Woodhouse, J. said that in general a judge cannot alter the reasons so as to modify or change the effect of the judgment once it has been perfected. Similarly, in Bank of Nova Scotia v. Province of Nova Scotia, the Nova Scotia Court of Appeal held that once judgment is entered, the substance of the reasons cannot be changed; if correction is needed it can only be made by a higher court. [50] An example of a case where it was held that the judicial officer had impermissibly changed the reasons for the decision is Lam v. Beesley. In that case, the magistrate announced the verdict and convicted the defendant for reasons which he gave orally. He then sentenced him and subsequently published 'Reasons for Decision' in which he made a finding of fact that was inconsistent with his earlier finding as expressed in his ex tempore reasons. On appeal, Owen, J. held that the two findings could not stand together and that, in the circumstances, the magistrate was not entitled later to formulate reasons which were, in substance, different from those which had been pronounced. His Honour held that, in the circumstances, the conviction could not stand. More recently, in Todorovic v. Moussa leave to appeal from the decision of the District Court was granted by the New South Wales Court of Appeal seemingly for the reason that after delivery of an oral judgment the District Court judge inserted in his corrected judgment an additional sentence, namely, 'I do not accept [X] as an accurate witness'. It would appear that there was no other reference in the reasons to the acceptability or otherwise of X's evidence which in fact was corroborated by other evidence. Furthermore, it was at least arguable that the addition of a broad statement that was unconnected with the rest of the reasons, namely, that the judge did not accept the witness, went beyond what could be done when revising an oral judgment. [51] It seems, however, that ordinarily, even after judgment has been entered, it is permissible to change the given reasons provided that in substance they do not become different reasons as a result of the changes and provided the alterations are made within a period that is not unduly long in all the circumstances. Thus, it is clear enough, for example, that a judge can alter the transcript of the reasons at any time to remove an error brought about by an administrative act which related to the compiling of the reasons - Nakhla; Bromley. In Bar-Mordecai v. Rotman it was held that ex tempore reasons can be altered by a judge provided the substance of them is not changed, nor are the orders which they sustain. There is no reason in principle why a like position should not apply to written judgments that have been published. It is common practice for judges to make changes not only to reasons that have been given ex tempore, but also to written reasons and in the latter case to make changes to them between the time they are published and when they become the subject of an authorised report. For example, in Duke of Buccleuch v. Inland Revenue Commissioners Lord Reid and Lord Guest did not question the correctness of the action of Sankey, J. in deleting in the version that was later published in the Law Reports a paragraph of his reasons in Ellesmere (Earl of) v. Inland Revenue Commissioners, which had been published in the Law Times. In fact, Lord Reid considered that Sankey, J. was wise to have deleted that paragraph, given that his Honour must have had a reservation about its correctness." (Citations omitted.) 17Even if I were of a different view to the Victorian Court of Appeal, I do not consider that the foregoing is plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89. However, I consider the foregoing is the correct analysis, and plainly so. Comments in Grierson v The King [1938] HCA 45; (1938) 60 CLR 431, Elliott v The Queen; Blessington v The Queen [2007] HCA 51; (2007) 234 CLR 38 and Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 do not qualify the foregoing. Rather, each deals, in one form or another, with an attempt to add reasons (e.g. to deal with an argument, or different facts, not previously dealt with), to alter the reasons for similar reasons, or to reopen the appeal to deal with issues of that kind: see the analysis in Jones & Hili (No 2) at [44]-[48]. 18The alteration effected on 5 April 2013 to the published reasons in this matter was not an attempt to re-open the appeal. Nor was it an alteration to the rationale of the judgment, or otherwise inconsistent with the first reasons. Rather it was the clarification of an infelicitous expression that should have effected prior to the initial publication. 19It is for the foregoing reasons that the Court effected the alteration to the wording and was not troubled by the issue raised by the defendant herein. I add only that it was most appropriate, and appreciated, that the issue was raised and I commend the Crown Solicitor for so doing. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 June 2013