Dickson v R (No 2)

[2018] NSWCCA 183

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Dickson v R (No 2) [2018] NSWCCA 183
Hearing dates:	On the papers
Date of orders:	27 August 2018
Decision date:	27 August 2018
Before:	Macfarlan JA at [1]; Schmidt J at [15]; Wilson J at [16]
Decision:	Application dismissed.
Catchwords:	CRIME – appeal against conviction and sentence – appeal heard and determined – no reference in judgment to one ground of appeal against conviction – applicant seeks to submit further grounds of appeal and have “undetermined” ground considered – applicant seeks leave to appeal against sentence – sentence previously quashed by Court – question of power to reconsider appeal – no power to hear further grounds
Legislation Cited:	Criminal Appeal Act 1912 (NSW), ss 5(1), 6 Criminal Appeal Rules 1912 (NSW), rr 25A, 50C
Cases Cited:	Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10 Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69 AN (No 2) (2006) 66 NSWLR 523; [2006] NSWCCA 218 Application of Malcolm Potier (No 3) [2015] NSWCCA 306 Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49 Burrell v R [2007] NSWCCA 65 Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 DAO v R (No 2) [2014] NSWCCA 126 Dickson v R [2016] NSWCCA 105 Dickson v The Queen [2016] HCATrans 307 Elliott v The Queen [2007] HCA 51; (2007) 82 ALJR 82 Grierson v The King (1938) 60 CLR 431; [1938] HCA 45 Haidari v The Queen [2014] VSCA 91 Langelaar v R (No 2) [2017] NSWCCA 228 Miller v R [2015] NSWCCA 205 R v AN (No 2) (2006) 66 NSWLR 523; [2006] NSWCCA 218 R v Burrell [2007] NSWCCA 79
Category:	Procedural and other rulings
Parties:	Anthony James Dickson (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
Representation:	Counsel: Self-represented Applicant Mr MG McHugh SC with Mr B Narula (Respondent)   Solicitors: Self-represented Applicant Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2012/140639
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: R v Anthony James Dickson (No 18) [2015] NSWSC 268 Date of Decision: 20 March 2015 Before: Beech-Jones J File Number(s): 2012/140639

Judgment

1. MACFARLAN JA: The Court delivered its judgment on the appeal and cross-appeal in this matter on 10 June 2016 ([2016] NSWCCA 105). The Court dismissed Mr Dickson’s appeal against conviction and allowed the Crown’s appeal against sentence. The Court accordingly re-sentenced Mr Dickson. Its orders were entered on 10 June 2016.

2. On 30 June 2016 Mr Dickson applied to the High Court for special leave to appeal from the judgment. His proposed fifth ground of appeal alleged that this Court “erred in failing to determine Amended Ground 7, for which leave to amend had been granted at the hearing of the appeal”. The High Court refused the application on 16 December 2016.

3. By Notice of Motion dated 20 November 2017, sent by Mr Dickson to the Registrar of this Court, Mr Dickson seeks to have this Court address Ground 7 of his appeal. He also seeks to advance numerous additional grounds of appeal against his convictions and sentences.

4. For the reasons that follow, I agree with the Crown’s submission that this Court does not now have jurisdiction to address any of these grounds of appeal.

5. Subject to very limited exceptions, once this Court determines an appeal and final orders are entered, the Court is functus officio and may not further consider the appeal (Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 at [24]).

6. One exception is the “slip rule”. This permits the Court to correct an order if it does not reflect the Court’s intended order (R v AN (No 2) (2006) 66 NSWLR 523; [2006] NSWCCA 218 at [42]; Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10 at [18]). That rule is inapplicable in the present case because there is no basis for suggesting that the formal orders entered were not those that this Court intended to make.

7. Rule 50C of the Criminal Appeal Rules 1912 (NSW) provides another exception. That rule permits the Court to set aside or vary its orders if an application for it to do so is made before or within 14 days of their entry. As Mr Dickson did not make such an application within 14 days of the Court’s judgment of 10 June 2016 (on which date the formal orders were entered), the rule is inapplicable in the present case.

8. In support of his application Mr Dickson relies on r 25A of the Criminal Appeal Rules which permits an appellant to rely upon grounds of appeal additional to those set out in his or her notice of appeal or application for leave to appeal. This rule is concerned however with steps that may be taken whilst an appeal or application for leave to appeal is on foot. It does not permit any further steps to be taken once the appeal proceedings have been finally disposed of.

9. For these reasons, the Court does not have jurisdiction to entertain Mr Dickson’s application.

10. I note in conclusion, first, that, as mentioned above, the matter of which Mr Dickson complains, namely this Court’s omission to deal in its judgment with Ground 7 of his appeal, was advanced in his written special leave application to the High Court as a proposed ground of appeal to that Court. It seems however that Mr Dickson and his advisors did not consider that omission to be significant as it was not relied upon in the oral submissions made to the High Court by Mr Dickson’s senior counsel in support of his special leave application ([2016] HCATrans 307).

11. Secondly, I note that, whilst Mr Dickson lodged an application for leave to appeal against his sentences prior to the hearing of the appeal proceedings in this Court, he did not pursue it at the hearing. Instead, he confined himself to resisting (unsuccessfully, as it transpired) the Crown’s appeal against the inadequacy of the sentences. As that appeal was successful and this Court resentenced Mr Dickson, the operative sentences are ones imposed by this Court. This Court does not have jurisdiction to hear an appeal against its own orders (DAO v R (No 2) [2014] NSWCCA 126 at [56]).

12. Thirdly, I note that, in support of his application to this Court, Mr Dickson lodged submissions additional to those which the Court’s directions permitted him to lodge. It has been unnecessary to ascertain the Crown’s attitude to that lodgement as the submissions did not in fact assist Mr Dickson.

13. Fourthly, I note that an application by Mr Dickson, again lodged without the Court’s permission, that a five judge bench deal with his Notice of Motion was not entertained as the constitution of the bench is a matter for the internal arrangements of the Court and not one in relation to which a party is entitled to be heard.

14. For these reasons, I propose that Mr Dickson’s application be dismissed.

15. SCHMIDT J: I agree with Wilson J.

16. WILSON J: On 10 June 2016 this Court delivered judgment and made orders in Dickson v R [2016] NSWCCA 105 (“the 2016 judgment”). The orders made were:

“1.    Leave to appeal in relation to grounds 1 and 2 of the conviction appeal is refused.

2.   The conviction appeal is otherwise dismissed.

3.   The sentence appeal is upheld and the sentences imposed by Beech-Jones J are set aside.

4.   The appellant is re-sentenced as follows:

a. For count 1, being an offence contrary to s 135.4(5) of the Criminal Code, the appellant is sentenced to a term of imprisonment of 9 years, commencing on 22 December 2014 and expiring on 21 December 2023.

b. For count 6, being an offence contrary to s 11.5(1) of the Criminal Code, the appellant is sentenced to a term of imprisonment of 12 years, to date from 22 December 2016 and expiring on 21 December 2028.

c. Pursuant to s 19AB(1) of the Crimes Act 1914 the Court fixes a single non-parole period of 9 years and 3 months, expiring on 21 March 2024.”

17. Although Mr Dickson had initially filed a Notice of Intention to Appeal Against Conviction and Sentence, he did not pursue his notified application for leave to appeal against sentence, proceeding with an appeal against conviction only. The Court heard and determined his appeal against conviction and dismissed it. A Crown appeal against the asserted leniency of sentence imposed upon Mr Dickson, heard contemporaneously with the conviction appeal, was upheld. The sentence imposed upon Mr Dickson in the Supreme Court was quashed, and he was re-sentenced.

18. The Court's orders were entered onto its electronic record on 10 June 2016.

19. On 30 June 2016 Mr Dickson applied for special leave to appeal to the High Court against the orders of this Court. The application for special leave was heard and dismissed by Bell and Keane JJ in Sydney on 16 December 2016: Dickson v The Queen [2016] HCATrans 307.

20. By Notice of Motion dated 20 November 2017 Mr Dickson ("the applicant") moves the Court to permit him to "send" a further 30 grounds of appeal against conviction, and 13 grounds of appeal against the sentence imposed upon him in the Supreme Court. Extensive submissions and an affidavit from Mr Dickson (which went principally to the issue of delay in seeking to bring further grounds of appeal) accompanied the Motion.

21. The Registrar directed the applicant and the Crown to file written submissions as to the jurisdiction of the Court to entertain further grounds of appeal. The Crown filed submissions on 30 May 2018, with the applicant filing his further submissions on 2 July 2018.

22. The Crown contends that this Court has no jurisdiction to hear further grounds of appeal.

23. In his original submissions and in the 35 pages of submissions and appendices filed in response to the Crown’s submissions, the applicant contends that the Court has jurisdiction pursuant to ss 5(1) and 6 of the Criminal Appeal Act 1912 (NSW) and r 25A(1) of the Criminal Appeal Rules. He refers to a supposed power to hear new grounds, the requirements of procedural fairness, the requirement to avoid or correct a denial of natural justice, and the Court’s inherent power to prevent an abuse of process in support of his contention. He specifically disavows any reliance upon r 50C of the Criminal Appeal Rules.

Ground 7 of the Applicant's Conviction Appeal

24. Part of the applicant's complaint, and one of the bases upon which he submits further grounds can be heard, deals with the asserted failure of the Court to deal in its 2016 judgment with a ground added with leave during the hearing of the original proceedings, in February 2016. It is necessary to give some background relevant to ground 7.

25. Originally, the applicant advanced six grounds of appeal against conviction; he sought leave on the second day of the hearing, 12 February 2016, to add a seventh ground. Leave was granted, with the applicant required to file a notice setting out the proposed seventh ground, within a specified time. A draft notice was handed up in Court and marked for identification.

26. Within the time allowed following completion of the hearing, the applicant filed the notice of the seventh ground in the Registry. The statement of his additional ground did not reach the judges of the Court, and the judgment was written without specific reference to it.

27. The absence of specific reference, argues the applicant (in summary), means that his appeal was not finalised and the Court can hear ground 7, together with the numerous fresh grounds sought to be advanced.

Discussion

28. Having considered the matters raised by the applicant in his written submissions I accept the submissions of the Crown that this Court has no jurisdiction to hear and determine ground 7, or any further grounds of appeal. I would dismiss the applicant’s Notice of Motion.

29. The New South Wales Court of Criminal Appeal is a superior court of record. Its jurisdiction is wholly statutory: Grierson v The King (1938) 60 CLR 431 at 435; [1938] HCA 45; Elliott v The Queen [2007] HCA 51; (2007) 82 ALJR 82 at [7].

30. The orders made by the Court in 2016 in Dickson v R were formally recorded, and thus can be regarded as “perfected”. Orders once perfected can rarely be reconsidered, not least because of the principal of finality. That principle was considered by the High Court in Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34.

31. In Burrell v R [2007] NSWCCA 65 the New South Wales Court of Criminal Appeal had set out the “facts” of the case, drawn from an erroneous account of them prepared by those acting for Mr Burrell. That error was drawn to the attention of the Court on the day after judgment was delivered.

32. In the subsequent decision of R v Burrell [2007] NSWCCA 79 the Court (McClellan CJ at CL, Sully and James JJ) concluded that it had not finally determined the appeal because its previous orders were made on the basis of erroneous information. The Court purported to reconsider the case having regard to the correct facts as established by the evidence, confirming its previous orders.

33. The High Court struck that process down, saying, at [19] - [21] amongst other things:

The end of a court’s powers to consider and determine a controversy cannot depend upon whether one party asserts that the court has made some error in the conclusion it has reached. If allegation of error in the court’s orders were the criterion, there would never be an end to some disputes. And because one party’s assertion of error cannot provide a sufficient criterion, a court’s belief that it has recognised its own mistake can provide no useful criterion. Such a belief could provide no useful criterion because, in the end, the accuracy of the belief would have to be tested against the arguments of the parties. It follows therefore that no matter whether it is a party that alleges error, or it is the court itself which believes that it recognises its own error, a decision that an error had been made could be reached only after giving all parties an opportunity to be heard. And it is this reargument of issues that would constitute the departure from the principle of finality.

Identifying the formal recording of the order of a superior court of record as the point at which that court’s power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.

The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded. [footnotes omitted]

34. The High Court continued (at [24]),

In Grierson v The King, this Court held that the jurisdiction of the Court of Criminal Appeal of New South Wales “is statutory, and the court has no further authority to set aside a conviction upon indictment than the statute confers”. More particularly, this Court held that the Court of Criminal Appeal had no jurisdiction to reopen an appeal which it had heard upon the merits and finally determined. Grierson has been followed in this Court on a number of occasions, most recently in Elliott v The Queen. [footnotes omitted]

35. Rule 50C of the Criminal Appeal Rules was introduced after the decisions of this Court in Burrell, but before the High Court determined Burrell v The Queen. It provides:

50C Power to set aside or vary order (cf UCPR rule 36.16)

(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.

(1A) An application to set aside or vary an order may only be made with the leave of the Court.

(1B) The Court may determine both whether to grant leave and the application on the papers.

(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 set aside or vary an order (including any power to correct clerical mistakes or errors arising from accidental slips or omissions).

36. Mr Dickson purports to rely upon r 25A(1) of the Rules, but that rule applies to adding grounds where an appeal has not yet been determined. It provides,

Where the appellant intends to rely on grounds of appeal not stated in his notice of appeal or application for leave to appeal, he shall, within 28 days after giving his notice of appeal, or of application for leave to appeal send his notice of additional grounds of appeal to the Registrar.

37. Rule 25A(1) can have no application here, as it relates to a current notice of appeal or notice of intention to seek leave to appeal, relevant to an appeal or application yet to be heard by the Court. There is no current notice in the present matter, it having expired with the finalisation of the 2016 proceedings. This rule is not further considered.

38. Insofar as any rule may have application, it would be r 50C.

39. The operation of r 50C is confined, presumably so as not to unduly diminish the principle of finality. It can only be utilised to set aside or vary an order if,

1. the application to set aside or vary is made prior to the entry of the orders into the Court’s computer system; or

2. within 14 days of the entry of the orders into the Court’s computer system.

40. Extensions of time with respect to those requirements are specifically prohibited by sub-rule (4).

41. The confined operation of r 50C has been considered in Application of Malcolm Potier (No 3) [2015] NSWCCA 306, where the Court (Ward and Simpson JJA, Wilson J) said at [7]:

Put simply, r 50C does not confer jurisdiction on this Court to re-hear the merits of an appeal once it has been determined. Rather, it enables the Court to reconsider and correct its orders to rectify obvious mistakes and correctly to reflect its intention at the time of making the decision in question. In Miller v R, Adams J (with whom Hoeben CJ at CL and Hidden J agreed) noted that there is no jurisdiction under r 50C to re-visit 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 (at [39]).

42. That approach is consistent with the approach taken by the High Court in Burrell, as confirmed in Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10.

43. Rule 50C was considered at some length relatively recently, in Langelaar v R (No 2) [2017] NSWCCA 228. At [18] the Court said,

A number of decisions of this Court have sought to make clear that the rule does not confer an unbounded jurisdiction to rehear an appeal on its merits: Application of Malcolm Potier (No 3) [2015] NSWCCA 306 at [5] – [7]; Bruce Edward Gall v R (No 2) [2015] NSWCCA 152 at [13] – [28] (by Hoeben CJ at CL); Miller v R (No 2) [2016] NSWCCA 158 at [39] – [53]. These citations do not comprehensively deal with the jurisprudence in this Court but adequately emphasise the narrowness of the gateway provided by rule 50C.

44. After referring at [19] to what was said at [7] in Application of Malcolm Poitier (No 3), which is extracted above at [41], the Court continued at [20],

As the Court pointed out in Miller (No 2) at [43], the Explanatory Note to rule 50C states that the power the rule confers is “similar” to the power conferred on the Supreme Court in civil cases by UCPR r 36.16(3A). This empowers the Court to exercise the power identified in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6, even after the orders have been entered, provided the jurisdiction is invoked with the degree of promptitude specified in the rule, i.e. 14 days.

45. It is clear that r 50C does not operate to give the Court an open-ended power to reconsider or revisit appeals previously determined by it. As was said in Miller v R [2015] NSWCCA 205, at [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.

46. Setting aside for the moment the complaint concerning ground 7, none of the extensive grounds listed by the applicant in his Notice of Motion are based upon some “slip” or misstatement of evidence or law that can be corrected without controversy. Although there is a great deal of repetition of matters addressed by the Court in determining the grounds advanced in support of the 2016 appeal, the grounds of appeal against conviction that the applicant seeks permission to "send" to the Court all raise complaints impugning the conduct of the applicant's trial before the Supreme Court. The applicant complains of bias and errors on the part of the trial judge, wrongful conduct on the part of the Crown, the unsatisfactory nature of his conviction and, overarching all, of a miscarriage of justice.

47. This is simply a “backdoor” means of seeking to re-agitate the conviction appeal already heard and dismissed by this Court: Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69 at [12].

48. As to the ground 7 issue, although the ground was not addressed in specific terms in the 2016 judgment, it was fully addressed when ground 2 was considered. As senior counsel for the applicant said at the 2016 hearing of the appeal, ground 2 encompassed the arguments raised orally by the applicant that were ultimately relied upon as directed to the proposed ground 7. In considering, determining and ultimately dismissing ground 2, the arguments advanced in support of ground 7 were also considered and determined.

49. In these circumstances the failure of this Court to specifically refer to ground 7 in terms does not equate to a failure to deal with the substance of the complaint which was thereby advanced. Nor can that operate as a mechanism by which the applicant can argue for a further appeal to be heard. The orders which were made dismissing the conviction appeal have given effect to the Court’s conclusion that the arguments addressed to ground 7 (as it was ultimately formulated) could not result in the appeal being upheld.

50. The thirteen grounds outlined in the applicant’s Notice of Motion which seek to call into question the sentence imposed at first instance (in R v Anthony James Dickson (No 18) [2015] NSWSC 268) are all matters that could have been pressed by Mr Dickson had he pursued his application for leave to appeal against sentence. All argue for errors on the part of the trial judge which wrongly infected the sentence imposed upon him. Events have overtaken the judgment of the Supreme Court, in that this Court quashed the original sentence, and moved to resentence.

51. A similar application was considered by the Victorian Court of Appeal in Haidari v The Queen [2014] VSCA 91 where, following the determination of a Crown appeal against inadequacy of sentence, Mr Haidari sought to challenge his sentence. At [53] the Court held,

However, the applicant’s position may be even worse than that. It could be said that this case falls within the principles laid down by the High Court in Port of Melbourne Authority v Anshun Pty Ltd. The applicant had a perfect opportunity to argue that his sentence was manifestly excessive when he appeared as respondent to the Director’s appeal. He did not avail himself of that opportunity. There is a strong public interest in ensuring that all matters that are relevant to a particular dispute are dealt with in the one proceeding, rather than being fragmented. The applicant’s sentence was before this Court on the Director’s appeal. That was the time for him to put whatever submission he wished to advance in relation to his sentence before the Court for its consideration.

52. Mr Dickson's situation is even more difficult than that of the applicant in Haidari as the sentencing decision of the Supreme Court against which he seeks to appeal has been quashed. Mr Dickson is now serving the sentence imposed upon him by this Court in the 2016 judgment. For the Court to entertain an appeal against sentence from the applicant would be to require it to sit as an appeal court considering its own decision: DAO (No 2) [2014] NSWCCA 126 at [56].

Conclusion

53. This Court has heard and determined Mr Dickson’s conviction appeal, and heard and determined the Crown’s inadequacy appeal, proceeding to resentence. The proceedings have been finalised, and are at an end. The orders then made are “beyond recall” by this Court: Bailey v Marinoff (1971) 125 CLR 529 at 530; [1971] HCA 49; Achurch v The Queen at [17].

54. There is no basis, statutory or otherwise, to grant the applicant’s Motion. It should be dismissed.

**********

Decision last updated: 27 August 2018