Attorney-General v Hadashah Sa'adat Khan (No 4)
[2024] VSC 62
•26 February 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST
S ECI 2022 03216
| ATTORNEY-GENERAL OF THE COMMONWEALTH | Plaintiff |
| v | |
| HADASHAH SA’ADAT KHAN | Defendant |
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JUDGE: | Moore J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 26 February 2024 |
CASE MAY BE CITED AS: | Attorney-General v Hadashah Sa’adat Khan (No 4) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 62 |
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JUDGMENTS AND ORDERS – Correction to a judgment under the slip rule – Accidental slip or omission – Inadvertence of legal representatives – Trial judge has since retired – Judgment corrected – Criminal Code Act 1995 (Cth) ss 102.7(1), 105A.9A – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 36.07 – Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall PtyLtd (2001) 4 VR 28 – R v Cripps; Ex parte Muldoon [1984] 2 All ER 705 – Shaddock & Associates Pty Ltd v Parramatta City Council(No 2) (1982) 151 CLR 590.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | No appearance | Australian Government Solicitor |
| For the Defendant | No appearance | Massi Ahmadzay & Associates |
HIS HONOUR:
On 10 June 2022, the defendant, Hadashah Sa’adat Khan, was sentenced for offences under the Criminal Code (Cth)[1] (the Code), including providing support to an organisation knowing it is a terrorist organisation, contrary to s 102.7(1) of the Code (the Index Offence). The offence arose from Ms Sa’adat Khan’s online communications with, and in relation to, a man from the United States who wanted to travel to Syria and engage in military combat in support of Islamic State which was then fighting a civil war against the Syrian government.
[1]Schedule 1 to the Criminal Code 1995 (Cth).
Ms Sa’adat Khan received a custodial sentence of 2 years and 6 months in relation to the Index Offence (and another offence to which she pleaded guilty). She was released from custody on 26 August 2022.
On 25 August 2022, pursuant to s 105A.9A of the Code, the Court made an ‘interim supervision order’ in relation to Ms Sa’adat Khan. The order was made by the Court constituted by John Dixon J who published his reasons for judgment on 31 August 2022 (the reasons for judgment).[2]
[2]Attorney-General v Hadashah Sa’adat Khan [2022] VSC 507.
At a recent hearing in a related proceeding between the same parties, [3] I was informed by senior counsel for Ms Sa’adat Khan that the summary of facts provided to John Dixon J relevant to the defendant’s offending included the name of the man referred to above in relation to whom the defendant committed the Index Offence. Regrettably, the Court was not then informed that the identity of the man (and any other information by which he might be identified) was then, as it is now, the subject of a suppression order. Unfortunately, as a consequence of the inadvertence of the defendant’s legal representatives, the reasons for judgment subsequently published by John Dixon J includes the name of the man and the names of two other persons by reference to whom the man might be identified.
[3]On 15 February 2024 in proceeding S ECI 2023 05158.
Ordinarily, a difficulty of this type would be able to be swiftly remedied by a party raising the matter with the presiding judge who would have power to rectify the error pursuant to the slip rule. Justice John Dixon’s retirement from the Court precludes the difficulty being addressed in this straightforward way.
The slip rule is expressed in r 36.07 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules) as follows:
Amendment of judgment or order
The Court may at any time correct a clerical mistake in a judgment or an order or an error arising in a judgment or an order from any accidental slip or omission.
Notably, the power in r 36.07 is vested in the Court. As stated by the Master of the Rolls, Sir John Donaldson, in R v Cripps; Ex parte Muldoon, ‘the slip rule power is not a power granted to the trial judge as such’, but ‘one of the powers of the court, exercisable by a judge of the court who may or may not be the judge who was in fact the trial judge’.[4] Rule 36.07 reflects the inherent jurisdiction of a court ‘at any time to correct an error in a decree or order arising from a slip or accidental omission’,[5] including those resulting from the inadvertence of a party's legal representative, ‘regardless of whether the order has been drawn up, passed and entered’. [6]
[4][1984] 2 All ER 705 (‘Cripps’) at 710.
[5]Shaddock & Associates Pty Ltd v Parramatta City Council(No 2) (1982) 151 CLR 590 (‘Shaddock’) at 594, quoting Milson v Carter [1893] AC 638 at 640.
[6]Shaddock ibid; and Cripps (n 4).
The power to correct an error extends to include an error in reasons for judgment. The relevant principles were explained by Chernov JA in Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd as follows:[7]
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. … 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 LJ in Bromley v Bromley, "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 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.
[7](2001) 4 VR 28 [49], citations omitted.
His Honour summarised the position as follows:[8]
…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. … 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.
[8]Ibid [51], citations omitted.
Consistent with the above principles, the Court will make orders providing for the name of the man in relation to whom Ms Sa’adat Khan committed the Index Offence to be redacted from the reasons for judgment, together with the names of two other persons referred to in the reasons for judgment by reference to whom the man may be able to be identified. The making of an order to this effect is not controversial between the parties; neither does it affect in any way the substance of John Dixon J’s decision and the orders he made in the proceeding. Given the rationale and need for the redactions, it is inconceivable that, if the matter had been brought to his Honour’s attention before orders were made and judgment was delivered in the proceeding, there would have been any difference of opinion in relation to the matter.
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