Bruce Edward Gall v R (No 2)

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Court of Criminal Appeal
Supreme Court

New South Wales

Case Name: 

Bruce Edward Gall v R (No 2)

Medium Neutral Citation: 

[2015] NSWCCA 152

Hearing Date(s): 

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…

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Details
Case
[2015] NSWCCA 152
Decision Date

CaseChat Overview and Summary

The appeal by Bruce Edward Gall against his conviction and sentence was dismissed by the Court of Criminal Appeal on 26 August 2014. The applicant sought to re-open the appeal proceedings, arguing that there had been a misapprehension of fact or law materially affecting the judgment in the appeal, and that the Court should have regard to the actual recording of p 20 of exhibit AC and the affidavit of Ali Abbas. The Crown opposed the application, arguing that the Court should not entertain the application because it did not satisfy the criteria set out in rule 50C of the Criminal Appeal Rules. The court was required to decide whether the application to re-open the appeal proceedings should be granted.

The court held that the principle of finality is a fundamental tenet of the judicial system and serves to protect parties from attempts to re-agitate what has been decided. The Court of Criminal Appeal is established by statute and 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. However, the rules of court allow an appeal to be revisited if an application is made within the time prescribed by the rules. The court noted that the application to re-open the appeal proceedings was made outside the time limit prescribed by rule 50C and that the applicant had not demonstrated any exceptional circumstances which would justify the application being made outside the prescribed time limit. The court also noted that the applicant had not satisfied the criteria set out in rule 50C to justify the re-opening of the appeal proceedings.

In light of the above, the court held that the application to re-open the appeal proceedings should be dismissed. The court held that the principle of finality served not only to protect parties to litigation from attempts to re-agitate what has been decided, but also had wider purposes. In particular, the principle of finality served 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 was not always possible and if it was possible, it was often difficult and time-consuming, and it was almost always costly.

The court dismissed the application to re-open the appeal proceedings. The applicant was ordered to pay the costs of the application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HOEBEN CJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

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 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. 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. 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.” 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.”