Application of Malcolm Potier (No. 2) [2015] NSWCCA 249

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Application of Malcolm Potier (No. 2) [2015] NSWCCA 249 Hearing dates: On the papers Date of orders: 14 September 2015 Decision date: 14 September 2015 Before: Hoeben CJ at CL, Davies and Hamill JJ Decision: Application refused Catchwords: CRIMINAL LAW – appeal – application under r 50C of the Criminal Appeal Rules – nature of the application – matters inappropriately raised under the rule – no error in principal judgment Legislation Cited: Migration Act 1958 (Cth) Cases Cited: Application of Malcolm Potier [2015] NSWCCA 199 Bruce Edward Gall v R (No 2) [2015] NSWCCA 152 Miller v R [2015] NSWCCA 205 Potier v R [2015] NSWCCA 130 Category: Consequential orders (other than Costs) Parties: Malcolm Huntley Potier (Applicant) Crown Representation: Counsel: On the papers

Solicitors: Unrepresented (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2005/14700 Decision under appeal Court or tribunal: Court of Criminal Appeal Jurisdiction: Criminal Date of Decision: 3 August 2015 Before: Hoeben CJ at CL, Davies & Hamill JJ File Number(s): 2005/14700

Judgment OF THE COURT 1. This Court gave judgment on 3 August 2015 in relation to a number of applications made by the Applicant: Application of Malcolm Potier [2015] NSWCCA 199. All the applications were dismissed. 2. On 17 August 2015 the Applicant applied under r 50C of the Criminal Appeal Rules to re-open the judgment of the Court. The basis of the application was said to be: (a) Mistake of law over the Court's inherent jurisdiction to hear and consider other related matters before the Supreme Court of New South Wales. (b) Mistake of fact over the status of the Applicant's parole consideration; (c) Mistake of law over the rejection of the Applicant's bail application; (d) Mistake of law in making findings and/or conclusions on ongoing matters currently before the Court giving rise to potential unreasonable prejudice. 1. The Applicant provided what were described as short submissions together with copies of correspondence with the Registrar of the Court. The Applicant concluded those submissions by saying that should the application be accepted the Applicant be permitted a reasonable opportunity to file a comprehensive argument. Because of the nature of the jurisdiction under r 50C and the material already provided by the Applicant the Court declined to permit any further submissions. 2. 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. 1. The jurisdiction under r 50C has recently been considered in two judgments of the Court. In Bruce Edward Gall v R (No 2) [2015] NSWCCA 152 Hoeben CJ at CL (with whom R A Hulme and Davies JJ agreed) considered a number of cases relevant to the rule and concluded: [28] 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. In Miller v R [2015] NSWCCA 205 Adams J (with whom Hoeben CJ at CL and Hidden J agreed) said: [39] Rule 50C does not deal with the scope of the Court's jurisdiction to reconsider and correct either its orders or its reasoning. It merely deals with the time frame in which such a jurisdiction may be exercised. It does not, in terms, deal with the possibility of reconsideration or variation after the time limits have expired, but reserves the general jurisdiction of the Court in this respect by sub rule (4). In the nature of things, the character and extent of the jurisdiction cannot be the subject of bright line distinctions: it is a matter of fact and degree. The fundamental rule is that there is no jurisdiction to rehear an appeal once determined, even before actual or constructive entry of judgment, though in certain circumstances particular issues might justify reconsideration, as where there is a misapprehension of fact or law, or a ground of appeal, necessary to final disposal of the appeal, has been overlooked or mistakenly not determined or there has been a denial of procedural fairness in the hearing of the appeal. It is not possible to give an exhaustive list of examples but it is clear that there is no jurisdiction to revisit the orders or reasons where the contended misapprehension is merely an assertion that a conclusion made following consideration of the matter by the Court is wrong, let alone where the applicant seeks, in effect, to argue a new ground of appeal. In short, the unsuccessful appellant cannot, in the language of Mason CJ in Autodesk Inc v Dyason (No. 2) [1993] HCA 6; (1993) 176 CLR 300 (quoted above) have a backdoor appeal. [40] After judgment has been entered, nothing of substance can be changed, though this still permits changes to orders or reasons where the language of either mistakenly does not reflect the order contemplated by the reasons or the sense of the reasons themselves. It must follow that no second appeal can be had on the merits, still less can a subsequent Court of Criminal Appeal hear such an appeal from an earlier decision of the Court. The mere contention that some error of law or misapprehension of fact has affected the decision is immaterial. If what is sought is, in effect, a rehearing on the merits of a decided appeal by this Court, the only recourse is by way of further appeal, if special leave is granted. [41] As a useful guide, any application before the orders are perfected which requires more than a summary consideration and determination of the impugned judgment or order is likely to be outside the scope of the rule. 1. In the light of those principles we now deal with the four matters raised by the Applicant.