AKKAWI, Mark v R; AKKAWI, Paul v R (No 2)

[2013] NSWCCA 72

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

AKKAWI, Mark v R; AKKAWI, Paul v R (No 2) [2013] NSWCCA 72

Hearing dates:

08/02/2013

Decision date:

08 April 2013

Before:

Simpson J
Blanch J
Rothman J

Decision:

(1) Leave to appeal granted;

(2) Sentences imposed on Mark Akkawi and Paul Akkawi by the District Court on 3 September 2010 be set aside and the applicants be re-sentenced as follows:

Mark Akkawi:

Count 1: imprisonment for 5 years and 6 months, commencing on 29 May 2008 and expiring on 28 November 2013, with a non-parole period of 3 years and 3 months, expiring on 28 August 2011.

Count 2: (taking into account the Form 1 offences) imprisonment for 6 years, commencing on 29 May 2009 and expiring on 28 May 2015, with a non-parole period of 4 years, expiring on 28 May 2013.

The aggregate sentence for Mark Akkawi is imprisonment of 7 years, commencing on 29 May 2008 and expiring on 28 May 2015, with a non-parole period of 5 years, expiring on 28 May 2013.

Paul Akkawi:

Count 1: imprisonment for 5 years and 6 months, commencing on 29 May 2008 and expiring on 28 November 2013, with a non-parole period of 3 years and 3 months, expiring on 28 August 2011.

Count 2: imprisonment for 6 years, commencing on 29 May 2009 and expiring on 28 May 2015, with a non-parole period of 4 years, expiring on 28 May 2013.

Count 3: (taking into account the Form 1 offences) imprisonment for 6 years, commencing on 29 August 2011 and expiring on 28 August 2017, with a non-parole period of 2 years and 9 months, expiring on 28 May 2014.

The aggregate sentence for Paul Akkawi is imprisonment of 9 years and 3 months, commencing on 29 May 2008 and expiring on 28 August 2017, with a non-parole period of 6 years, expiring on 28 May 2014.

Catchwords:

CRIMINAL LAW - appeal - error in judgment purportedly entered - application to amend judgment pursuant to Rule 50C of the Criminal Appeal Rules - power of the Court to amend orders once entered - effect of Rule 50C - original intention implemented

Legislation Cited:

Criminal Appeal Act 1912
Criminal Appeal Rules

Cases Cited:

Alramadan v Director of Public Prosecutions (NSW) (No. 2) [2008] NSWCCA 69
R v Glyn Morgan JONES; R v Anthony Joseph Luis HILI (No 2) [2010] NSWCCA 195

Category:

Consequential orders

Parties:

2009/5903:
Mark Akkawi (Applicant)
Regina (Respondent)

2009/5904:
Paul Akkawi (Applicant)
Regina (Respondent)

Representation:

Counsel:
G Turnbull SC (Applicants)
J A Girdham SC (Respondent)
Solicitors:
Jack Rigg Solicitors (Applicants)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2009/5903; 2009/5904

 Decision under appeal 

Date of Decision:

2010-12-03 00:00:00

Before:

Colefax DCJ

File Number(s):

2009/5903; 2009/5904

Judgment

1. THE COURT: On 17 February 2012, reasons for judgment on appeal (hereinafter, "the reasons for judgment of 17 February") and judgment of the Court issued. The published document, at that stage, contained a discrepancy as between the orders proposed in the reasons for judgment and the orders proposed on the coversheet.

1. By Notice of Motion filed 4 February 2013, the applicants, Mark and Paul Akkawi, sought orders the effect of which was that the orders recorded on the coversheet and initially entered on JusticeLink be confirmed.

1. It is necessary to describe briefly that which occurred in relation to the orders.

Facts

1. It is unnecessary to recite the circumstances of the criminal conduct of either of the applicants on the motion. The reasons for judgment of 17 February describe the conduct fully.

1. The applicants' appeals were listed for hearing and heard on 29 November 2011 before the Court, as presently constituted. The judgment of the Court was handed down by a differently constituted Court.

1. The body of the reasons for judgment of Simpson J, (with which Blanch and Rothman JJ agreed) at [100] recorded that Mark Akkawi in respect of Count 1 be sentenced to imprisonment for 5 years and 6 months commencing 29 May 2008, with a non-parole period of 3 years and 3 months concluding on 28 August 2011. On that Count, the coversheet records that Mark Akkawi be sentenced to 5 years and 6 months commencing 29 May 2008, with a non-parole period of 4 years to expire on 28 May 2012.

1. In the same paragraph (namely [100]) the sentence in respect to Count 2 (including consideration of the Form 1 matters) is that Mark Akkawi be sentenced to imprisonment for 6 years commencing on 29 May 2009, with a non-parole period of 4 years to expire on 28 May 2013. The coversheet records that Mark Akkawi, with respect to that Count, be sentenced to 6 years and 3 months commencing on 29 May 2009, with a non-period of 3 years and 3 months to expire on 28 August 2012.

1. At [100] of the reasons for judgment of 17 February, Simpson J recorded that Paul Akkawi would be sentenced, in relation to Count 1, to imprisonment for 5 years and 6 months commencing on 29 May 2008, with a non-parole period of 3 years and 3 months to expire on 28 August 2011. The coversheet records that Paul Akkawi was to be sentenced, with respect to Count 1, to a term of 5 years and 9 months, commencing on 29 May 2008, with a non-parole period of 3 years to expire on 28 May 2011.

1. There is no discrepancy between the coversheet and the reasons for judgment in relation to the sentence imposed on Paul Akkawi in relation to Count 2.

1. At [100] of the reasons for judgment of 17 February, Simpson J further recorded that Paul Akkawi be sentenced to 6 years, in respect to Count 3 (taking into account matters on the Form 1), commencing on 29 August 2011, with a non-parole period of 2 years and 9 months, concluding on 28 May 2014. The coversheet records that Paul Akkawi, for that Count, was sentenced to 6 years commencing on 29 May 2010, with a non-parole period of 4 years to expire on 28 May 2014.

1. There is a further discrepancy within the reasons for judgment of 17 February itself. At [100], Mark Akkawi is said to have been sentenced to an aggregate sentence of 7 years and 6 months, commencing 28 May 2008 and expiring 28 November 2015, with a non-parole period of 5 years expiring on 28 May 2013. The aggregate non-parole period, there stated, corresponds with the individual sentences for Counts 1 and 2, but the aggregate head sentence does not.

1. As earlier stated, judgment issued on 17 February 2012. By a letter dated 29 February 2012 (and filed on that date) the Crown applied to vary the orders issued by the Court pursuant to the terms of r 50C of the Criminal Appeal Rules.

Consideration

1. Under the Criminal Appeal Rules, amended in 2007 to take account of computerised entry system, orders of the Court are taken to be entered when recorded in the Court's computerised record system (JusticeLink): Criminal Appeal Rules r 50B(2).

1. Pursuant to the provisions of Criminal Appeal Rules r 50C(2), a party may apply to set aside or vary an order within 14 days of its entry on JusticeLink and the effect of such an application is that the order is treated as if it had not been entered. The operation of Criminal Appeal Rules r 50C was the subject of comment by the Court in Alramadan v Director of Public Prosecutions (NSW) (No. 2) [2008] NSWCCA 69, in which the Court said:

"[1] ... The judgment and orders were entered in the Registry on the same day. On 6 December 2007, that is within 14 days of the judgment being entered, the applicant wrote to the Registrar asking that the matter be relisted. This letter was treated as an application to set aside or vary the order and thus invoked the power of the Court under r 50C(2) of the Criminal Appeal Rules (NSW). It is convenient to set that rule out in full:

'Power to set aside or vary order

50C

(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 subrule (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 subrule (2) or (3).

(5) Nothing in this rule affects any other power of the Court to aside or vary an order.'

[2] This rule commenced on 7 September 2007 and, so far as the Court is aware, its operation has not previously been considered. Neither party suggested that r 50C(2) should not be applied in accordance with its terms.

[3] As the Director noted, similar provisions were introduced into the Uniform Civil Procedure Rules (NSW) contemporaneously: see r 36.16(3A)-(3C). The Court was invited to note both the underlying reason for the rule (based upon entry of judgments in the electronic record of the Court) and the explanatory note which stated that the new rules would enable orders under the Criminal Appeal Act 1912 (NSW) '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': see Criminal Appeal Rules (Amendment No. 1) 2007; GG No 116, 7/09/07, p 6888. This invitation need not be accepted for present purposes. The note is expressed in broad terms which need to be considered in the light of the remarks of Dixon J in Grierson v The Queen [1938] HCA 45; (1938) 60 CLR 431 at 436, in a passage cited with approval in Elliott v The Queen; Blessington v The Queen [2007] HCA 51; 82 ALJR 82 at [7]. In addressing the effect of the Criminal Appeal Act, Dixon J stated 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.'

[4] It is sufficient for present purposes to apply r 50C(2) in its terms, so that 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."

1. In our view the provisions of Criminal Appeal Rules r 50B and r 50C should be read together and the effect of r 50C(2) is to render the entry on JusticeLink not an entry of the order if, within 14 days, application is made to vary or set aside that order. The application to vary or set aside operates nunc pro tunc so that it is as if the order had never been entered.

1. Even if the effect of r 50C of the Criminal Appeal Rules were not as described immediately above and, in accordance with ordinary principle, the order reflecting the coversheet were entered, the Court still has power to reconsider an appeal to allow a variation of the orders entered in certain circumstances.

1. The power of the Court to vary an order already entered (and reasons for judgment) was considered at length by the Court 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 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 a superior court of record.

1. As stated, the Court, in Jones & Hili (No 2), there dealt with the power to correct a judgment in circumstances where, in those proceedings, the correction was to be effected to the 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."

1. In Jones & Hili (No 2), the Court went on to hold that it had the power, in the circumstances outlined above, to alter the judgment that had been entered and had the power, in similar circumstances, with some slightly greater flexibility, to alter the reasons for judgment.

1. In the circumstances of this case, it is open to the Court to alter the reasons for judgment (at [100]) or the order that was entered reflecting the coversheet, if that alteration were effected on one of the three bases described in [34] of Jones & Hili (No 2).

1. It is necessary first to state that the process by which, in this case, the judgment issued is not an unusual one. Other procedures sometimes occur.

1. Nevertheless, in this case, the draft reasons for judgment of Simpson J were circulated to the other members of the Court for comment or agreement. Agreement was reached, as is obvious from the reasons for judgment. The agreement of the other two members of the Court is an agreement to the orders proposed in the draft reasons for judgment, in this case, of Simpson J.

1. The process by which the draft reasons for judgment and the orders proposed therein are reflected in the coversheet and subsequently entered on JusticeLink is a clerical process which, in the days of computers, ordinarily takes the form of "a cut and paste". For reasons which are unknown and unfathomable, in this case error occurred in this process, resulting in the discrepancies noted above.

1. Whatever be the reason for that, whether it be that the orders were retyped and mistakes made, or whether a template for orders was used and not wholly corrected, is unclear. It matters not. The intention of the Court, being the orders proposed by Simpson J to which Blanch and Rothman JJ agreed, were the orders proposed at [100] of the reasons for judgment of Simpson J, subject to the correct calculation of the aggregate head sentence for Mark Akkawi.

1. As a consequence, "the intention of the Court has not manifested in the judgment": see Jones & Hili (No 2) at [34(b)], recited above. Further, the aggregate head sentence for Mark Akkawi was a miscalculation of the sentences imposed.

1. The order first entered was corrected, which correction was communicated to the appellants' advisers. That error was corrected on 24 August 2012 by an Amended Notification of the Court's determination. The reasons for that correction are contained herein.

Conclusion

1. The Court well appreciates the effect that the alteration to the orders made would have had on one or both of the appellants. Nevertheless, there was an obvious inconsistency between the orders proposed in the reasons of Simpson J, to which the other members of the Court agreed, and the orders that were initially entered. Further, the orders, proposed by Simpson J and ultimately effected in the correction, substantially reduced the sentence imposed at first instance on each of the appellants.

1. The Court makes it clear that its intention was to effect the orders proposed in [100] of the reasons for judgment, with a correct calculation of the aggregate head sentence for Mark Akkawi, and the order now entered on JusticeLink reflects that intention.

1. The Court makes the following orders:

(1) Leave to appeal granted;

(2) Sentences imposed on Mark Akkawi and Paul Akkawi by the District Court on 3 September 2010 be set aside and the applicants be re-sentenced as follows:

Mark Akkawi:

Count 1: imprisonment for 5 years and 6 months, commencing on 29 May 2008 and expiring on 28 November 2013, with a non-parole period of 3 years and 3 months, expiring on 28 August 2011.

Count 2: (taking into account the Form 1 offences) imprisonment for 6 years, commencing on 29 May 2009 and expiring on 28 May 2015, with a non-parole period of 4 years, expiring on 28 May 2013.

The aggregate sentence for Mark Akkawi is imprisonment of 7 years, commencing on 29 May 2008 and expiring on 28 May 2015, with a non-parole period of 5 years, expiring on 28 May 2013.

Paul Akkawi:

Count 1: imprisonment for 5 years and 6 months, commencing on 29 May 2008 and expiring on 28 November 2013, with a non-parole period of 3 years and 3 months, expiring on 28 August 2011.

Count 2: imprisonment for 6 years, commencing on 29 May 2009 and expiring on 28 May 2015, with a non-parole period of 4 years, expiring on 28 May 2013.

Count 3: (taking into account the Form 1 offences) imprisonment for 6 years, commencing on 29 August 2011 and expiring on 28 August 2017, with a non-parole period of 2 years and 9 months, expiring on 28 May 2014.

The aggregate sentence for Paul Akkawi is imprisonment of 9 years and 3 months, commencing on 29 May 2008 and expiring on 28 August 2017, with a non-parole period of 6 years, expiring on 28 May 2014.

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Decision last updated: 08 April 2013