Jeremy Schwalm v The Queen (No 2) - [2012] ACTCA 56

JEREMY SCHWALM v THE QUEEN (No 2)
[2012] ACTCA 56 (6 December 2012)

APPEAL – jurisdiction, practice and procedure – judgments and orders – amending, varying and setting aside – where order of the Court not correctly recorded – where sentence end date incorrectly calculated – power to amend order not representing intention of the Court.

Crimes (Sentencing) Act 2005 (ACT), s 61
Magistrates Court Act 1930 (ACT), s 216

Burrell v The Queen (2008) 238 CLR 218
Schwalm v The Queen [2012] ACTCA 43

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA – 30 of 2012
No. SCA 9 of 2012

Judges: Refshauge, Penfold and Burns JJ
Court of Appeal of the Australian Capital Territory
Date: 6 December 2012

IN THE SUPREME COURT OF THE       )          No. ACTCA 30 – 2012
)          No. SCA 9 of 2012
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JEREMY SCHWALM
Appellant

AND:THE QUEEN
Respondent

ORDER

Judges:  Refshauge, Penfold and Burns JJ
Date:  6 December 2012
Place:  Canberra

THE COURT DIRECTS THAT:

The order of the Court of 30 October 2012 be amended by:

(a) omitting “14” and substituting “13”; and

(b) adding a second order as follows:

“2. The appeal otherwise be dismissed”.

IN THE SUPREME COURT OF THE       )          No. ACTCA 30 – 2012
  )          No. SCA 9 of 2012
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JEREMY SCHWALM
Appellant

AND:THE QUEEN
Respondent

Judges:  Refshauge, Penfold and Burns JJ
Date:  6 December 2012
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

On 30 October 2012, the Court heard the appeal of Jeremy Schwalm against the Supreme Court’s dismissal of his appeal from a sentence of imprisonment imposed by the Magistrates Court.
The Court upheld the appeal to the extent necessary to make an order that the period of custody he served between lodgement of his Notice of Appeal from the Magistrates Court until he was granted bail, but which was stayed by s 216 of the Magistrates Court Act 1930 (ACT), should be directed to count in the period of imprisonment he is to serve under the sentence. Otherwise the appeal was dismissed.
Regrettably, there were two errors in the sealed order of the Court. In the first place, the dismissal of the appeal was not recorded. It appears that the Court did orally announce that the appeal was dismissed but this did not find its way into the sealed order which, therefore, must be amended.
More significantly for Mr Schwalm, the order set the last day of the sentence of imprisonment to be served by Mr Schwalm as 14 December 2012. This was the date advised to the Court by the prosecutor in the Supreme Court. This date has turned out to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] ACTCA 56
Decision Date: 6 December 2012

CaseChat Overview and Summary

Jeremy Schwalm (the applicant) sought to amend an order of the Court of Appeal of the Supreme Court of Queensland. The dispute concerned the recording of an order made by the Court, specifically the end date of a sentence imposed on the applicant.

The primary legal issue before the Court was whether it possessed the power to amend its previous order to correct an error in the calculation of the sentence end date, where the recorded order did not accurately reflect the Court's original intention.

The Court reasoned that it had the inherent power to amend its orders to ensure they accurately reflected the Court's true intention and to correct clerical errors or misprisions. Applying this principle, the Court found that the incorrect calculation of the sentence end date constituted a misprision that could be rectified. The Court determined that the order should be amended to reflect the sentence end date as it was intended by the Court at the time of the original judgment.

Orders