R v Elphick (No 3)

Case [2017] ACTSC 302


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Elphick (No 3)

Citation:

[2017] ACTSC 302

Submissions Date:

10 October 2017

DecisionDate:

18 October 2017

Before:

Refshauge J

Decision:

That paragraph 2 of the order of the Court in The Queen v Todd Elphick (No 2) [2015] ACTSC 23 be amended by:

(1)   omitting “cumulative as to” and substituting “concurrent as to approximately”; and

(2)   omitting “1 October” and substituting “21 October”

and the same amendments be made to paragraph [97] of the reasons for sentence.

Catchwords:

PRACTICE AND PROCEDURE – JUDGMENTS AND ORDERS – Amendment – accidental slip or omission – power to amend – slip rule – inherent jurisdiction of the Court – reconsideration of an order – r 6906 of the Court Procedures Rules 2006 (ACT)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – transferral of sentence to another jurisdiction – amendment of a transferred sentence – Ch 12 of the Crimes (Sentence Administration) Act 2005 (ACT)

Legislation Cited:

Compensation Court Act 1984 (NSW), s 36(1)

Crimes (Interstate Transfer of Community Based Sentences) Act 2004 (NSW), ss 20(1)(a), 24, 24(3), 24(5)
Crimes (Sentence Administration) Act 2005 (ACT), ss 269, 273(2)(b), 282, 284, 284(2), Ch 12
Crimes (Sentencing) Act 2005 (ACT), s 61
Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT)

Court Procedures Rules 2006 (ACT), r 6906

Cases Cited:

Bakewell v The Queen [2009] HCA 24; 238 CLR 287

Brennand v Hartung (No 3) [2015] ACTSC 149
Cockatoo Dockyard Pty Ltd v Atamian (1995) 12 NSWCCR 114
Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52
Commonwealth of Australia v Davis Samuel Pty Limited and Ors (No 10) [2016] ACTSC 364
Commonwealth of Australia v Davis Samuel Pty Limited and Ors (No 9) [2015] ACTSC 127; 296 FLR 62
Elson v Ayton [2010] ACTSC 70; 241 FLR 178
E v E [1903] P 88
Ex parte Kane (1882) 21 NBR 370
Heery v Criminal Justice Commission [2000] QCA 511;  [2001] 2 Qd R 610
In re Suffield and Watts, Ex parte Brown (1888) 20 QBD 693
Kassab v The Queen [2016] VSCA 327
Millard v The Queen (No 2) [2016] ACTCA 41
R v Calvert [2010] ACTSC 80
R v Carmody (No 2) [2017] ACTSC 25
R v Cripps; Ex parte Muldoon [1984] 1 QB 686
R v Forrest (No 4) [2017] ACTSC 200
R v Gorman [2009] ACTSC 7
R v Kelly (No 2) [2017] ACTSC 64
Texas Co (Australasia) Ltd v Federal Commissioner of Taxation (1940) 63 CLR 382
The Queen v Todd Elphick (No 2) [2015] ACTSC 23
Wickey v The Queen (No 2) [2012] ACTCA 51; 269 FLR 289

Texts Cited:

Associate Professor Tarrant, Amending Final Judgments and Orders (The Federation Press, 2010)

Parties:

The Queen (Crown)

Todd William Elphick (Defendant)

Representation:

Counsel

Mr T Hickey (Crown)

Mr R Davies (Defendant)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Defendant)

File Number:

SCC 183 of 2013

REFSHAUGE J:

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AGLC
R v Elphick (No 3) [2017] ACTSC 302
Case
[2017] ACTSC 302
Decision Date

CaseChat Overview and Summary

The case of R v Elphick (No 3) involved an application by the respondent to amend a previous order regarding the sentence of Todd Elphick. The application was heard in the Supreme Court of the Australian Capital Territory. The primary issue was whether the Court had the authority to amend the sentencing order due to an accidental slip or omission.

The legal issues centered on the Court's power to amend its orders in the event of an accidental slip or omission, and the applicability of the "slip rule" as well as the inherent jurisdiction of the Court under rule 6906 of the Court Procedures Rules 2006 (ACT). Additionally, the Court had to consider whether the amendment of a transferred sentence under Chapter 12 of the Crimes (Sentence Administration) Act 2005 (ACT) was permissible.

The Court found that it had the inherent jurisdiction to amend its orders to correct any accidental slips or omissions. The Court noted that the original order was clearly the result of an accidental slip and that the amendment sought would correct this error without altering the substance of the sentence. The Court further held that the slip rule and its inherent jurisdiction allowed for such amendments, provided the error was clear and the amendment did not prejudice any party. The Court exercised its discretion to amend the order as requested, correcting the sentence to reflect the intended terms.

The Court ordered that the sentence in The Queen v Todd Elphick (No 2) be amended to reflect the intended terms. Specifically, the order required that the words "cumulative as to" be omitted and replaced with "concurrent as to approximately," and the date "1 October" be omitted and replaced with "21 October." These amendments were also to be reflected in paragraph [97] of the reasons for sentence.

Orders

Orders of the court

That paragraph 2 of the order of the Court in The Queen v Todd Elphick (No 2) [2015] ACTSC 23 be amended by:

(1) omitting “cumulative as to” and substituting “concurrent as to approximately”; and

(2) omitting “1 October” and substituting “21 October”

and the same amendments be made to paragraph [97] of the reasons for sentence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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