Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Bruce Edward Gall v R (No 2) [2015] NSWCCA 152 Hearing dates: On the papers Decision date: 19 June 2015 Before: Hoeben CJ at CL at [1] R A Hulme J at [40] Davies J at [41] Decision: The application pursuant to Rule 50C of the Criminal Appeal Rules to vary the orders made by the Court of Criminal Appeal on 20 April 2015 is dismissed. Catchwords: CRIMINAL LAW – criminal appeal – order entered – application to set aside or vary order within 14 days of entry of judgment – Criminal Appeal Rules r 50C(2) – criteria to be satisfied to justify re-opening – misapprehension of fact or law materially affecting judgment in the appeal – further evidence – proposed re-opening of appeal to remedy deficiency in material presented at hearing – application dismissed. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) – s 53A Criminal Appeal Act 1912 (NSW) Cases Cited: Akkawi, Mark v R; Akkawi, Paul v R (No 2) [2013] NSWCCA 72 Alramadan v DPP (NSW) [2007] NSWCCA 322 Alramadan v DPP (NSW) (No 2) [2008] NSWCCA 69 Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300 Baghdadi v R (No 2) [2012] NSWCCA 77 Burrell v The Queen [2008] HCA 34; 238 CLR 218 Elliott v The Queen; Blessington v The Queen [2007] HCA 51; 234 CLR 38 Gall v R; Gall v R [2015] NSWCCA 69 Grierson v R [1938] HCA 45; 60 CLR 431 Kauwenberghs v R [2009] NSWCCA 201 KW v R (No 2) [2013] NSWCCA 84 PFC v R (No 2) [2014] NSWCCA 241 R v AB [2011] NSWCCA 229 R v AB (No 2) [2011] NSWCCA 256 R v Jones; R v Hili (No 2) [2010] NSWCCA 195; 79 NSWLR 143 R v Ly (No 2) [2014] NSWCCA 91 Category: Principal judgment Parties: Bruce Edward Gall – Applicant Regina – Respondent Crown Representation: Counsel: T Game SC/D Barrow – Applicant W Abraham QC/G O'Rourke – Respondent Crown Solicitors: Alamein & Co Lawyers – Applicant Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2010/380935 Decision under appeal Court or tribunal: Court of Criminal Appeal Jurisdiction: Criminal Citation: [2015] NSWCCA 69 Date of Decision: 20 April 2015 Before: Hoeben CJ at CL; R A Hulme J and Davies J File Number(s): 2010/380935 Judgment 1. HOEBEN CJ at CL: Nature of application After a trial which took place between 27 August and 12 September 2012 the applicant (who had been tried jointly with his son, Kevin Anthony Gall), was found guilty of being an accessory after the fact to murder. The applicant and his co-offender were sentenced on 23 November 2012. The applicant appealed to this Court against his conviction and sentence and that appeal was heard on 20 February 2015 with judgment being handed down on 20 April 2015. The applicant's appeal against conviction and sentence was dismissed. (Gall v R; Gall v R [2015] NSWCCA 69.) 1. By letter dated 30 April 2015 the applicant made an application to re-open the appeal in this Court pursuant to Rule 50C of the Criminal Appeal Rules. Rule 50C provides: "50C Power to set aside or vary order (1) The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order. (2) If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter and (if appropriate) set aside or vary the order under sub-rule (1) as if the order had not been entered. (3) Within 14 days after an order is entered the Court may of its own motion set aside or vary the order as if the order had not been entered. (4) The Court may not extend the time limited by sub-rule (2) or (3). (5) Nothing in this rule affects any other power of the Court to set aside or vary an order." Applicant's submissions 1. In order to understand the applicant's submissions, it is necessary to set out [172] – [183] of the principal judgment: "172 The proviso has been applied even though a trial judge did not properly direct the jury on an element of the offence charged (R v Gulliford [2004] NSWCCA 338; 148 A Crim R 558, Festa v R [2001] HCA 72; 208 CLR 593). The issue on the proviso is whether Bruce Gall lost a real chance of being convicted of the lesser offence of being an accessory after the fact to manslaughter because of her Honour's erroneous direction on that issue. 173 The Crown submitted that the evidence was such that the only rational inference open on the evidence was that Bruce Gall knew all of the facts which gave rise to the conviction of Kevin Gall for the offence of murder so that even if the jury had been properly directed, they could not rationally have come to any other conclusion but that Bruce Gall was an accessory after the fact to the murder of the deceased. 174 The Crown submitted that the jury had clearly rejected Kevin Gall's evidence to the effect that he shot the deceased in order to protect his father and himself. The Crown submitted that it followed from that rejection that the jury had also rejected his evidence that Bruce Gall said to him, immediately before he shot the deceased, that the deceased had a gun. The Crown submitted that even without relying upon the evidence of Mr Fox (which the jury may not have wholly accepted) it would have been clear to Bruce Gall, after the shooting but before the hosing down of the car port, that neither the deceased nor Mr Fox had a gun. An inspection of the deceased would have made that clear and the compelling inference from the flight of Mr Fox without attempting to retaliate, was that he was not armed. 175 The Crown also relied upon the following extract from p 20 of Exhibit AC: "BG Yeah they had f'ing bats in the car. They had motor cycle helmets … pull them over your head. PV They didn't have any guns or anything though, hey? BG No. PV No? BG They were looking for mine. PV They were looking for your guns? BG They were searching. You know when they were searching. That c… was looking in the back. That's what he was looking for. He looked through the house. He said "I'm gunna look through your house". …" 176 That part of the transcript of Exhibit AC (if accurate) provided very strong evidence that at no time did Bruce Gall believe that either the deceased or Mr Fox had guns before the deceased was shot. 177 In a supplementary written submission following the conclusion of oral submissions in the appeal, it was asserted on behalf of Kevin Gall (but not on behalf of Bruce Gall) that this part of the transcript was incorrectly transcribed. It was submitted that it was not clear that Bruce Gall said "no" or whether it was only Van Straalen that said "no" and that thereafter Bruce Gall said "yeah he had it on him" which has not been recorded in the transcript. 178 This point was not taken by either applicant at trial and has not been taken by Bruce Gall in the appeal. At trial the transcript of Exhibit AC was accepted as an accurate transcription of what the listening device was able to pick up and was tendered without objection (T.291.40). The submission is contrary to the evidence of Kevin Gall on this very point (T.467.4). A challenge to the accuracy and completeness of the transcript should not be allowed to be taken for the first time in the appeal. In any event, the issue was not raised in Bruce Gall's appeal and I propose to disregard it. 179 The Crown submission should be accepted. The evidence was such that the only rational inference open was that Bruce Gall knew all the relevant facts relating to the shooting of the deceased and that there was no basis for a belief on his part that his son was trying to defend either him or himself. 180 The Crown position is even stronger when the evidence of Mr Fox is taken into account. Although the jury may not have accepted all of his evidence, they must have accepted most of it for them to reach the verdict which they did in relation to Kevin Gall. 181 It needs to be remembered that it is the state of knowledge of Bruce Gall which is relevant. He was in the presence of the deceased and Mr Fox for the whole of the time. Even before the death of the deceased and the flight of Mr Fox he was likely to have been well aware that they were not carrying guns. If they had been armed with guns, the compelling inference is that he would have been threatened with them. In that respect, the evidence of Mr Fox was almost certainly correct when he surmised that when Bruce Gall started to run he was not "fleeing" from the deceased but was going to either lock himself in the office or get a gun. It is also relevant that the layout and photographs of the premises make it clear that when Kevin Gall shot the deceased, Bruce Gall was running directly towards him. 182 The issue can be looked at in another way. The only evidence to the contrary depended upon an acceptance of Kevin Gall's explanation for why he shot the deceased which was clearly rejected by the jury. There is no other evidence which would provide a rational basis for a belief on the part of Bruce Gall that his son was trying to defend him or himself. Not surprisingly, given the state of the evidence, no submission was made at trial that Bruce Gall may have thought that his son was trying to defend him. 183 This is a case in which the proviso to s6(1) of the Criminal Appeal Act 1912 should be applied in that Bruce Gall did not lose a real chance of an acquittal on the more serious accessory charge. This ground of appeal has not been made out." 1. The applicant's submissions were based on those paragraphs. The particular focus was on the conversation between the applicant, Kevin Gall and Peter Van Straalen at [175]. The conversation had been recorded on a listening device on 19 June 2010, some two months after the shooting of the deceased. The recording was tendered at the trial as exhibit AB (T.291) and a transcript of the recording as exhibit AC (T.291.40). 2. The applicant submitted that at [178] of the judgment there had been a "misapprehension of the facts" when it was stated that "exhibit AC was accepted as an accurate transcription of what the listening device was able to pick up and was tendered without objection". The applicant submitted that it was incorrect to say that the tender of exhibit AC was made without objection because there were significant qualifications associated with the tender. The applicant noted that the jury was told: "I tender as an aid memoire a transcript of the conversation but of course with the proviso is that there may be some inaccuracies and your Honour will give the usual direction to the jury about listening for themselves." The applicant submitted that a misapprehension of fact had occurred when in the principal judgment the Court had mistakenly concluded that the transcript, exhibit AC, was an accurate record of what was said and by whom. 1. The applicant submitted that the extract from p 20 of exhibit AC, which was set out at [175] of the judgment and which was in part relied upon for a conclusion that the proviso applied, was incorrect in a significant way. The applicant submitted that when one listened to the recording (exhibit AB), the error in the transcription became obvious and was even more obvious when an enhanced audio analysis of the recording was carried out. 2. Based on the enhanced audio analysis, the applicant submitted that the relevant part of p 20 of exhibit AC should have read: "BG: They had fucking bats in the car. They had fucking motor cycle helmets. They close his neck (spoken over by another person) an' pull them over your head. PV: They didn't have any guns or anything, eh? BG: Yeah. PV: No. BG: Yeah, he had it on him …. They were looking for mine I'll tell yer. PV: They were looking for your guns? BG: Yeah, yeah. You know where ya search? He chucked them. PV: Ughmmm. BG: That cunt was looking in the back and that was what he was looking for. Then he went to my house and he said "I'm gunna fuck'n look through your house and find it"". 1. The underlined portions are those which differ from p 20 of exhibit AC. 2. The applicant submitted that this evidence, if correct, undermined in a significant way the reasoning supporting the application of the proviso in the applicant's appeal against conviction. The applicant submitted that this was because the evidence from the listening device would not support the conclusion that the applicant had told Van Straalen that the intruders were not armed at the time of the shooting. Instead it would support the conclusion that he had in fact confirmed that the men, or at least one of them, were armed. 3. The applicant conceded that this issue was not raised by those appearing for him at trial and in the appeal. He explained that by saying that until the handing down of the Court's judgment the significance of the new material to the success or failure of his appeal was not appreciated by his legal advisers. The applicant submitted that on a matter of such significance it was essential that the evidence of the recording itself, and any other evidence that might cast doubt on the accuracy of p 20 of exhibit AC, should be the subject of careful examination and evaluation by the Court. The applicant submitted that the transcript was no more than an aid memoire and that even if there had been a general acceptance of its accuracy at trial and during the appeal, the fact that evidence had subsequently emerged which cast a doubt on the accuracy of that transcript could not be ignored. 4. The applicant submitted that the evidence of Kevin Gall at T.467.4 of the trial transcript, as referred to at [178] of the principal judgment, was not decisive on this issue. On that issue, the applicant relied on the evidence of Kevin Gall at T.503-4 which he submitted placed considerable doubt on the reliability of the earlier evidence in that it was obvious from the later trial transcript that Kevin Gall did not have a recollection of the detail of the conversation between the applicant and Van Straalen. The applicant noted that when this evidence was given no attempt was made to play the recording. There was simply a reliance on the content of p 20 of exhibit AC. The applicant submitted that because Kevin Gall was being asked more than two years later to comment on what he (the applicant) had actually said in June 2010, his evidence on this issue was equivocal and had little probative value. The applicant submitted that this was particularly so when the actual recording was available and could be listened to. 5. The applicant submitted that this Court should re-open the appeal proceedings, listen to the actual recording of p 20 of exhibit AC and receive into evidence the affidavit of Ali Abbas, dated 10 April 2015. (Mr Abbas was the solicitor for Kevin Gall who forwarded the unsolicited affidavit to the Court annexing an enhanced audio recording of p 20 of exhibit AC which is referred to at [177] of the principal judgment.) The applicant submitted that this Court should have regard to both the actual recording of the listening device (exhibit AB) and to the enhanced audio analysis of that recording, together with the revised transcript of the conversation at p 20 of exhibit AC. Consideration 1. The Court of Criminal Appeal was established by the Criminal Appeal Act 1912 (NSW) and subsequent amendments. Its jurisdiction is confined within the limits of the Act and when the Court has heard an appeal on its merits and given its decision, the appeal cannot be re-opened. This is subject only to the rules of court which allow an appeal to be revisited if an application is made within the time prescribed by the rules. 2. The principle of finality has a significant role to play in the proper disposal of appeals. Re-arguing or re-agitating issues which have already been decided by a court involves an unacceptable and unavailable departure from the principle of finality. 3. In Burrell v The Queen [2008] HCA 34; 238 CLR 218 the plurality (Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ) said: "15 Secondly, it is important to recognise that underpinning consideration of the issues presented in this matter are fundamental principles about finality of litigation. As was said in D'Orta-Ekenaike v Victoria Legal Aid: "A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances." That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud and in doctrines of res judicata and issue estoppel. The principal qualification to the general principle of finality is provided by the appellate system. But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded. 16 The third consideration of principle which it is necessary to state at the outset is related to the second. It is that the principle of finality serves not only to protect parties to litigation from attempts to re-agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible, it is often difficult and time-consuming, and it is almost always costly." 1. Rule 50C was introduced by the Criminal Appeal Rules (Amendment No 1) No 455 of 2007 and came into operation in September 2007. The explanatory note in the Government Gazette when the amending rules were published reads as follows: "The object of these Rules is to amend the Criminal Appeal Rules so as to require orders under the Criminal Appeal Act 1912 to be entered and to enable them to be set aside and varied in ways similar to those for judgments and orders under the Civil Procedure Act 2005." 1. The genesis of the rule was the problem which arose in Burrell. The Court of Criminal Appeal in Burrell had occasion to consider its power to re-visit a decision made on an erroneous view of the facts. The court held that in the circumstances of that case it did have such power, but the circumstances and authorities referred to made obvious the advantage of putting the matter beyond doubt by the creation of a Rule. In fact the Court of Criminal Appeal's decision as to the existence of such a power was overruled by the High Court in Burrell. 2. The first consideration of the rule occurred in Alramadan v DPP (NSW) (No 2) [2008] NSWCCA 69. The Court of Criminal Appeal had previously dismissed the applicant's appeal against conviction (Alramadan v DPP (NSW) [2007] NSWCCA 322). The basis of the application under Rule 50C was the availability of two further statements made by medical witnesses for the accused. There was a statement from Dr Nicholls, an orthopaedic surgeon, to the effect that the applicant would have had great difficulty in climbing onto the examination table in his surgery and having sexual intercourse with the complainant in the manner alleged. The other statement was from Dr White to the effect that although semen from the applicant was found on a "high vaginal swab" obtained from the complainant, such could occur otherwise than through "normal intercourse". 3. The evidence of those doctors had been ruled inadmissible at trial and the applicant had not put that material before the Court of Criminal Appeal. Following the dismissal of his appeal, the applicant sought to rely upon Rule 50C as a basis for re-opening the appeal and adducing that further evidence. 4. When considering the application the Court of Criminal Appeal (Basten JA with whom Latham and Rothman JJ agreed) concluded that the broad terms of the explanatory note needed to be seen in the light of the remarks of Dixon J in Grierson v R [1938] HCA 45; 60 CLR 431 at 436 in the passage cited with approval in Elliott v The Queen; Blessington v The Queen [2007] HCA 51; 234 CLR 38 at [7]. There Dixon J addressed the effect of the Criminal Appeal Act 1912 at p 436: "…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." 1. Basten JA said: "6 Where judgment has been given but the order has not been entered the power to reconsider an appeal is not precluded. Nevertheless, the circumstances in which the Court will be persuaded to entertain further argument (and possibly further evidence) are quite limited. In Elliott and Blessington at [31] – [32], the High Court held that the criteria by which this Court should determine an application to re-open a proceeding prior to judgment being entered were those stated by Mason CJ in Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300 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 reargue their cases." 7 Applying those principles in the present case, it is necessary to identify some misapprehension of fact or law, not solely attributable to the applicant, which materially affected this Court's judgment in the appeal. 8 The basis of the present application was the availability of two further statements by witnesses for the accused, whose evidence was rejected at trial. The difficulty which the applicant faces is that the sole reason this material was not considered by the Court at the hearing of the appeal was that he did not put it before the Court. The difficulty he faces in satisfying the test adopted in Elliott and Blessington is immediately apparent. However, it is desirable to explain in a little more detail the relevance of the material on the case presented for the applicant. … 14 As indicated above, this is a clear case of a reopening being proposed in order to enable the applicant to reargue the appeal. If the Court acted under some misapprehension as to the relevant facts at the hearing of the appeal, that was solely due to the manner in which the appellant ran his case. …" 1. The approach of the Court of Criminal Appeal in Alramadan (No 2) was affirmed in Kauwenberghs v R [2009] NSWCCA 201. In that matter the applicant pleaded guilty in the District Court to an indictment containing five drug related counts and was sentenced on 5 May 2006. The applicant successfully appealed against the severity of his sentence and was re-sentenced. The applicant then sought to vary those orders as provided for in Rule 50C. The basis for the application was that the court did not have before it the applicant's grounds of appeal and the written submissions he prepared but instead had the grounds of appeal and written submissions prepared by his former lawyers, both of which he had specifically abandoned when he assumed the conduct of the appeal himself. The Court had determined the appeal based upon his former lawyers' submissions and the grounds of appeal filed by them. 2. The Court (Beazley JA, Hall and Fullerton JJ) concluded that none of the issues or grounds pursued by the applicant on the appeal were overlooked or were the subject of a misapprehension of the kind that enlivened the exercise of the Court's power under Rule 50C. The Court said: "8 … In Alramadan the Court held that the power to vary or set aside orders made consequent upon an appeal against conviction (or an application for leave to appeal against sentence) is to be understood and applied commensurate with the power the Court has always had under the general law to vary or set aside orders in an appropriate case. The Court also emphasised that after a full hearing on the merits of an appeal against conviction or sentence the circumstances in which further argument should be entertained on an application to vary or set aside its orders are quite limited. In that regard it cited the judgment of Mason CJ in Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300 at 303 where his Honour identified the criteria by which an application to re-open a proceeding should be decided. His Honour said: "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." It was this approach which the Court in Alramadan accepted as the proper approach when an application is brought under r 50C of the Criminal Appeal Rules. 9 In applying those principles to this application, the Crown submitted, in our view correctly, that there are three questions that require an affirmative answer before the Court would be entitled to consider varying the orders entered on 29 July 2008. 10 The first question is whether, in considering the application for leave to appeal against sentence, the Court proceeded (or apparently proceeded) according to some misapprehension of fact or law. Unless that has occurred the application to vary the sentencing order must be dismissed. If it is established that the Court proceeded according to some misapprehension of fact or law, the Court must then be satisfied that the matter complained of affected its consideration of the merits of the appeal in some material way. That is, the misapprehension must be a material one. Again, unless that matter is established, the application to vary the sentencing order must fail. Assuming the materiality of the misapprehension of fact or law, the final question is whether it was due to the applicant's neglect or default. 11 Although the applicant did not cast his submissions in accordance with the principles to which we have referred, it is essential on this application that the question whether the Court should vary or set aside its orders be resolved strictly in accordance with those principles since to do otherwise is to run the risk that the application takes on the character of an appeal or a re-hearing of the original appeal." 1. In R v AB (No 2) [2011] NSWCCA 256 the Court (Bathurst CJ, Hoeben and Johnson JJ) considered the application of Rule 50C. The facts were that the Court had given judgment in a Crown appeal allowing the appeal and making orders which effectively increased the period of imprisonment (R v AB [2011] NSWCCA 229). Two errors in the judgment were subsequently brought to the attention of the Court. 2. The errors were that a slip had been made in the calculation of the period of aggregation of the notional sentences creating a three month gap between the expiry of the sentence on count 3 and the commencement of the sentence on count 4, during which period the offender would not be serving a sentence. Secondly, it was not open to the Court to impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 because s 53A did not apply to sentences for offences in respect of which a plea of guilty had been entered before the commencement of that section. 3. Both the Crown and the offender requested the Court to make orders under Rule 50C to overcome the agreed errors. The Court held that both of those issues constituted a misapprehension of fact or law not solely attributable to the parties which materially affected the Court's judgment in the appeal and that it was appropriate for orders to be made under Rule 50C to remedy the position. 4. The Court most recently considered Rule 50C in PFC v R (No 2) [2014] NSWCCA 241. There the Court (Fullerton, R A Hulme and Garling JJ) reviewed previous authorities and said: "26 The Court noted in Alramadan that in applying Rule 50C in its terms, the Court: "... will have the same powers under the Criminal Appeal Act, taking into account relevant principles under the general law, as it has always had in relation to orders which have not been entered." 27 The Court then proceeded to consider the proper application of Rule 50C. It said this: "6 Where judgment has been given but the order has not been entered, the power to reconsider an appeal is not precluded. Nevertheless, the circumstances in which the Court will be persuaded to entertain further argument (and possibly further evidence) are quite limited. In Elliott and Blessington at [31]-[32], the High Court held that the criteria by which this Court should determine an application to re-open a proceeding, prior to judgment being entered, were those stated by Mason CJ in Autodesk Inc v Dyason (No. 2) [1993] HCA 6; 176 CLR 300 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 reargue their cases.'" 28 The Court went on to say this: "7 Applying those principles in the present case, it is necessary to identify some misapprehension of fact or law, not solely attributable to the applicant, which materially affected this Court's judgment in the appeal." 29 The Court again considered the application of Rule 50C in Kauwenberghs v R [2009] NSWCCA 201. The Court, in applying Alramadan, held that there were three questions which required an affirmative answer before the Court would be entitled to consider varying the original set of orders. It expressed those questions in this way: "10 The first question is whether, in considering the application for leave to appeal against sentence, the Court proceeded (or apparently proceeded) according to some misapprehension of fact or law. Unless that has occurred the application to vary the ... order must be dismissed. If it is established that the Court proceeded according to some misapprehension of fact or law, the Court must then be satisfied that the matter complained of affected its consideration of the merits of the appeal in some material way. That is, the misapprehension must be a material one. Again, unless that matter is established, the application to vary the ... order must fail. Assuming the materiality of the misapprehension of fact or law, the final question is whether it was due to the applicant's neglect or default." 30 The Court went on to say that it was essential that on an application under Rule 50C that the Court resolve the application in accordance with the principles enunciated: "... since to do otherwise is to run the risk that the application takes on the character of an appeal or a re-hearing of the original appeal". 31 In a number of judgments since, the Court has applied this approach to applications made pursuant to Rule 50C: see R v AB (No 2) [2011] NSWCCA 256; Baghdadi v R (No. 2) [2012] NSWCCA 77; Akkawi v R (No 2) [2013] NSWCCA 72. 32 Accordingly, in considering the submissions, both written and oral, of PFC, together with the additional documentation identified, this Court will need to consider first, whether the first Court in its first judgment proceeded, or apparently proceeded, on a misapprehension of fact, or of law, and if it do so, whether any such misapprehension was material? 33 If either of these questions are not answered affirmatively, then the application must be dismissed. If ultimately satisfied of each of those matters, the Court will need to consider the question of neglect or default, on the part of the applicant, before considering whether the orders should be varied. … 126 In our view, the substance of the oral submissions (including those referred to in writing) of PFC was an attempt to re-argue his appeal. They do not demonstrate any misapprehension of fact or law in the first judgment." 1. By reference to those decided cases, Rule 50C is of limited application with an emphasis on correcting obvious mistakes in language used or results that did not reflect the intention of the Court. Rule 50C has been used: To correct a slip, being the omission of words to clarify an infelicitous or ambiguous expression. When doing so it was not altering the basis or rationale of the judgment as it was originally intended (R v Jones; R v Hili (No 2) [2010] NSW CCA 195; 79 NSWLR 143 at [49]. To overcome agreed difficulties where there was a gap of three months from the conclusion of the notional sentence on a count and the commencement of the notional sentence on the next count and it was appropriate to remedy that slip (R v AB (No 2). When the Court had not considered a ground of appeal (Baghdadi v R (No 2) – [2012] NSWCCA 77). To effect the orders proposed in the reasons for judgment with the correct calculation of the aggregate head sentence (Akkawi, Mark v R; Akkawi, Paul v R (No 2) [2013] NSWCCA 72). To restructure sentences to achieve an aggregate non-parole period which reflected the Court's intention (KW v R (No 2) [2013] NSWCCA 84). To correct some minor accidental slips which included the numbering of the orders and some minor changes of wording, neither of which altered the substance of the reasons or the orders made (R v Ly (No 2) [2014] NSWCCA 91). 1. Three of the cases discussed above involved the applicant seeking orders which amounted to an appeal against the Court of Criminal Appeal's decision. In Alramadan (No 2) the Court took the view that the applicant was seeking to re-open the appeal so as to remedy deficiencies in the material presented at the hearing and held that such an approach "would appear to fall squarely within the impermissible purpose of seeking "by a back door method" to re-argue an unsuccessful appeal". It could not be justified on the criteria explained by Mason CJ in Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300; Alramadan (No 2) at [12]. 2. In Kauwenberghs the Court did not consider that any of the issues in the grounds pursued by the applicant had been overlooked or were the subject of a misapprehension of a kind that enlivened the exercise of the Court's power under Rule 50C. Similarly, in PFC it was held that the substance of the oral submissions was an attempt to re-argue the appeal and the entirety of the submissions did not demonstrate any misapprehension of fact or law in the first judgment. 3. The misapprehension of fact relied upon by the applicant is that the Court mistakenly concluded that p 20 of exhibit AC was an accurate record of what was said and by whom. There are a number of difficulties with that submission. 4. The Crown does not accept that the transcript at p 20 of exhibit AC is incorrect and asserts that the recording exhibit AB was correctly transcribed and in particular, that the recording does not contain a response by the applicant to the effect of "yeah he had it on him". The Crown submitted that not only were those words not used by the applicant in the recorded conversation but that such words were quite inconsistent with the tenor of the conversation. Accordingly, the asserted misapprehension of fact is a matter in dispute. 5. The accuracy of p 20 of exhibit AC was never an issue at trial. Not only was it not an issue, it was accepted by all parties as accurate. Kevin Gall's counsel asked him questions with specific reference to p 20 of exhibit AC. Implicit in the questions was the accuracy of that transcript (T.467). Similarly, the Crown cross-examined Kevin Gall with specific reference to p 20 of exhibit AC. Again, implicit in those questions was the accuracy of the transcript on which he was cross-examined (T.503.-4). Most significantly counsel for the applicant (who did not give evidence in the trial) said at the beginning of his closing address "He does not dispute that Kevin Gall shot dead Neil Green. He does not dispute that Neil Green was at the time not armed" (T.621). 6. The recording (exhibit AB) was played to the jury during the trial. No part of its transcription, which became exhibit AC, was disputed. 7. During the appeal, no point was taken as to the accuracy of p 20 of exhibit AC. Its accuracy was accepted. In oral submissions, senior counsel for the applicant made a submission which assumed its accuracy (appeal transcript T.15). The first indication that any part of p 20 of exhibit AC might be inaccurate was in the affidavit of Mr Abbas of 10 April 2015. Mr Abbas, of course, was retained by Kevin Gall not the applicant. The purpose of that issue being raised on behalf of Kevin Gall was never made clear since it was irrelevant to any of the issues raised by him on the appeal. Significantly, even at that late stage no challenge to the accuracy of p 20 of exhibit AC was made by the applicant. 8. Another problem with the asserted misapprehension of fact is that if p 20 of exhibit AC should be read as the applicant asserts, it would be the only evidence to that effect in the trial. It would be inconsistent with the interpretation of the conversation accepted by him at trial, inconsistent with the evidence at trial, particularly that of Kevin Gall and inconsistent with the position adopted by him through his counsel at trial. There was no evidence that the deceased or Fox had firearms. On the contrary, the evidence of Kevin Gall was that they did not have firearms (T.466, 467, 510). 9. In those circumstances, I am not satisfied that there has been a misapprehension of fact as required by Rule 50C. The correct characterisation of what the applicant is seeking to do is to re-open the appeal so that he can raise matters which could and should have been raised at trial and on appeal but were not. The effect of the applicant being allowed to do so would be to re-argue the appeal on a different basis to that adopted by the applicant, both at trial and on the appeal. 10. There is another problem with this application. If it be the case that there has been a misapprehension of fact of the kind that would engage Rule 50C, that misapprehension can be attributed solely to the neglect or default of the applicant. If in the trial, or even in the appeal, the applicant wished to raise as an issue that he had a genuine belief that either or both the deceased and Fox had a firearm, he could and should have done so. There was nothing to stop the applicant, or his legal advisers, both at trial and in the appeal from listening carefully to any relevant parts of exhibit AB and making submissions thereon. That was not done. It follows that any misapprehension of fact by the Court at the hearing of the appeal was solely due to the manner in which the applicant ran his case. 11. The order I propose is that the application pursuant to Rule 50C of the Criminal Appeal Rules to vary the orders made by the Court of Criminal Appeal on 20 April 2015 be dismissed. 12. R A HULME J: I agree with Hoeben CJ at CL. 13. DAVIES J: I agree with Hoeben CJ at CL. ********** 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: 19 June 2015