R v Jones; R v Hili (No 2)

[2010] NSWCCA 195

Reported Decision: 242 FLR 64

New South Wales

Court of Criminal Appeal

CITATION:	R v Glyn Morgan JONES; R v Anthony Joseph Luis HILI (No 2) [2010] NSWCCA 195
HEARING DATE(S):	8 July 2010
JUDGMENT DATE:	3 September 2010
JUDGMENT OF:	McClellan CJatCL at 1; Rothman J at 2
DECISION:	Reasons for judgment in this matter issued on 14 May 2010 are amended.
CATCHWORDS:	COURTS AND JUDGES – appeal – capacity to correct reasons for judgment for slip and/or ambiguity – correction made after judgment entered - APPEAL – reasons for judgment – slip and/or ambiguity – judgment already entered – capacity of Court to alter wording – correction made to reasons for judgment
LEGISLATION CITED:	A New Tax System (Goods and Services Tax) Act 1999 (Cth) Commonwealth Conciliation and Arbitration Act 1904-1947 Criminal Appeal Act 1912 Supreme Court Act 1970 The Constitution
CATEGORY:	Procedural and other rulings
CASES CITED:	Alramadan v Director of Public Prosecutions (NSW) (No. 2) [2008] NSWCCA 69 AN (No 2) v R [2006] NSWCCA 218; (2006) 66 NSWLR 523 Autodesk Inc v Dyason (No. 2) [1993] HCA 6; (1993) 176 CLR 300 Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 Cardile v LED Builders Pty Limited [1999] HCA 18; (1999) 198 CLR 380 CDJ v VAJ [1998] HCA 67; [1998] HCA 76; (1998) 197 CLR 172 CH Giles & Co v Morris (1972) 1 All ER 1960 Conway v R [2002] HCA 2; (2002) 209 CLR 203 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 DPP (NSW) v Moradian [2010] NSWCCA 27 Elliott v The Queen; Blessington v The Queen [2007] HCA 51; (2007) 234 CLR 38; (2007) 82 ALJR 82 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Fletcher Construction Australia Ltd v Lines MacFarlane Marshall Pty Ltd [2001] VSCA 167 Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57 Jackson v Sterling Industries Limited [1987] HCA 23; (1987) 162 CLR 612 Pasini v United Mexican States [2002] HCA 3; (2002) 209 CLR 246 Philip Morris Inc v Adam P Brown Male Fashions Proprietary Limited [1981] HCA 7; (1981) 148 CLR 457 Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 R v Burns (1920) 20 S.R. (NSW) 351; 37 W.N. 77 R v Glyn Morgan JONES; R v Anthony Joseph Luis HILI [2010] NSWCCA 108 Re Jarman; Ex Parte Cook [1997] HCA 13; (1997) 188 CLR 595 Re McBain; Ex Parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 Stewart v The King [1921] HCA 17; (1921) 29 CLR 234 The King v Metal Trades Employers’ Association; Ex Parte Amalgamated Engineering Union Australian Section [1951] HCA 3; (1951) 82 CLR 208 The Queen v Forbes; Ex parte Bevan [1972] HCA 34; (1972) 127 CLR 1 Todorovic v Moussa (Court of Appeal, Powell and Heydon, JJA, 9 April 2001, unreported)
PARTIES:	Regina (Applicant) Glyn Morgan JONES (Respondent) Anthony Joseph Luis HILI (Respondent)
FILE NUMBER(S):	CCA 2008/15597; 2008/15601
COUNSEL:	P W Neil SC (Applicant) J T Svehla / R Webb (Respondents)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Applicant) Snelgroves Lawyers (Respondents)

2008/15597
2008/15601

McCLELLAN CJ at CL
ROTHMAN J

3 SEPTEMBER 2010

R v Glyn Morgan JONES; R v Anthony Joseph Luis HILI (No 2)

Judgment

1 McCLELLAN CJ at CL: I have read the supplementary reasons of Rothman J. I confirm my agreement with the orders made by the Court and with the reasons of Rothman J for the making of those orders.

2 ROTHMAN J: By notice of motion filed 6 July 2010, the Commonwealth Director of Public Prosecutions (hereinafter “the appellant”) seeks orders for the correction or amendment of my reasons for judgment in R v Glyn Morgan JONES; R v Anthony Joseph Luis HILI [2010] NSWCCA 108 (hereinafter “the original reasons”), with which reasons these reasons should be read.

3 The issue arises from the wording of paragraphs [3] and [44] of the original reasons.

4 The respondents, Messrs Jones and Hili, oppose the amendment and referred to the existence of an application for special leave to appeal to the High Court of Australia that was to have been heard (and was heard) on 30 July 2010. This Court takes the view that it should do nothing that could be seen to interfere or affect that application, and therefore waited for the proceedings in the High Court to be heard.

5 The High Court has referred the application for special leave to the Full Court of the High Court, and this Court need not wait any longer to issue judgment. Further, it seems that nothing in this judgment will or could affect, or be seen to affect, that which will occur in the High Court of Australia.

6 The judgment arising from the original reasons has been entered. Orders of this Court are entered when the orders are recorded in the Court’s computerised record system, and, leaving aside an application that may be made to set aside or vary such an order pursuant to Rule 50C of the Criminal Appeal Rules made under the Criminal Appeal Act 1912 (“the Act”), orders are generally entered instanter, and, in this case, were entered on the day that judgment issued.

7 The issue on the motion turns predominantly on the power of the Court of Criminal Appeal to amend its published reasons for judgment. The respondents submit that the Court has some powers in relation to the amendment of a judgment, once entered, but no powers to alter the wording of its reasons for judgment. During the course of submissions, without resiling from their primary proposition, the respondents submitted that, if there were a power to amend the reasons, it was confined in the same way as the power to alter a judgment.

8 There are obvious practical problems with accepting the proposition that a court, having delivered judgment and reasons, has no power to alter the wording of its reasons, which was the effect of the respondents’ submission. Daily, judicial officers issue ex tempore reasons for judgment, which are later corrected for grammatical and other reasons. Even the High Court of Australia, in publishing its reasons, makes clear that the version initially published may be revised prior to its authorised publication in the Commonwealth Law Reports. Nevertheless, the issue having been raised, it is necessary to deal with it, and, as a consequence, the starting point must be the status of the Court of Criminal Appeal, because if the Court were not a superior court of record, it may affect its powers. Neither party addressed this issue, and, it seems, that both parties simply assumed that it was.

Status of Court of Criminal Appeal

9 The Court of Criminal Appeal is established by statute, expressed in s 3 of the Act, subsection (1) of which is in the following terms:

“The Supreme Court shall for the purposes of this Act be the Court of Criminal Appeal, and the court shall be constituted by such three or more judges of the Supreme Court as the Chief Justice may direct.”

10 To the extent that the Court of Criminal Appeal is “created” by statute, it is no different from every court in New South Wales, with the exception of the Supreme Court.

11 There has been much discussion in Australia on the issue of inherent jurisdiction and inherent powers in a statutory court, with particular reference to the Federal Court of Australia (or its predecessors) and the Family Court of Australia: see, for example, The Queen v Forbes; Ex parte Bevan [1972] HCA 34; (1972) 127 CLR 1 at 8; Philip Morris Inc v Adam P Brown Male Fashions Proprietary Limited [1981] HCA 7; (1981) 148 CLR 457 at 535-536; Jackson v Sterling Industries Limited [1987] HCA 23; (1987) 162 CLR 612 at 617, 618; CDJ v VAJ [1998] HCA 67; [1998] HCA 76; (1998) 197 CLR 172; Cardile v LED Builders Pty Limited [1999] HCA 18; (1999) 198 CLR 380 at [108]; DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 at [183]; and Pasini v United Mexican States [2002] HCA 3; (2002) 209 CLR 246 at [94].

12 Whether or not there are inherent powers in the Court of Criminal Appeal, the Court at least has those powers prescribed by the statute. The Act, by s 12, enables the Court to exercise, in relation to any and all proceedings before the Court, all of the powers of the Supreme Court on appeal or application in civil matters, and issue any warrant or other process necessary for enforcing its orders or sentences.

13 There is no provision in the Act, “creating” the Court of Criminal Appeal, nor expressly conferring on it the status of a superior court of record. Yet, the Court of Criminal Appeal hears and determines appeals from the Supreme Court, which manifestly is a superior court of record with inherent jurisdiction and inherent powers. Nor does the Act specify a power to punish for contempt.

14 Further, there is no express provision in either the Constitution or the Act enabling an appeal from the Court of Criminal Appeal to the High Court of Australia. The Act assumes a right of appeal to the High Court of Australia: see, inter alia, s 25A of the Act. Nor is there a provision in the Judiciary Act 1901 (Cth) that expressly grants a right of appeal to the High Court of Australia.

15 The High Court of Australia has determined that the Act does not “create” a new Court, but merely directs that the Supreme Court, constituted as prescribed in the Act, acts as the Court of Criminal Appeal, as a consequence of which the Court of Criminal Appeal remains, in that respect, the Supreme Court, and an appeal lies from the Court of Criminal Appeal to the High Court under s 73 of the Constitution: Stewart v The King [1921] HCA 17; (1921) 29 CLR 234 at 240; see also DPP (NSW) v Moradian [2010] NSWCCA 27 at [6]-[7] (per Basten JA, Howie and Johnson JJ); Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at [12]-[14].

16 Notwithstanding the foregoing, it has long been accepted that the Court of Criminal Appeal is not, at least for all purposes, the Supreme Court: R v Burns (1920) 20 S.R. (NSW) 351; 37 W.N. 77 (per Gordon J). But judgments such as R v Burns, supra, concern the question as to whether the Court of Criminal Appeal, constituted as such, can exercise any jurisdiction (statutory or inherent) conferred on the Supreme Court, other than the jurisdiction conferred by the Act.

17 There can be little doubt as to the correctness of the accepted wisdom that the Court of Criminal Appeal is not the Supreme Court, for all purposes. Even if that were in doubt, given that the Act was promulgated in 1912, the judgment in Burns, supra, issued in 1920, and given that the “wisdom” has been accepted since that time, it would now seem to be a matter for the legislature to alter that approach.

18 However, the mere fact that the Court of Criminal Appeal is not the Supreme Court for all purposes does not mean that the Supreme Court is not the Court of Criminal Appeal. The Act specifies that the Supreme Court is the Court of Criminal Appeal. The terms of the Act do not appoint judges of the Supreme Court as members of the Court of Criminal Appeal as persona designata: see, inter alia, Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57. It is the Supreme Court, as such, which is the Court of Criminal Appeal. So much is the effect of the judgment in Stewart, supra.

19 Historically, all common law courts sat en banc. Judgments of a court are judgments of the whole court and the concept of an appeal to judges of the same court (or, on one view, at all) is a statutory invention: see Re Jarman; Ex Parte Cook [1997] HCA 13; (1997) 188 CLR 595 at 610. An appeal from a single judge of a court to a full court of the same court does not alter the fact that the jurisdiction, in each case, is still the jurisdiction of the whole court. There are not two courts, one comprising a single judge and one comprising the remainder of the Court, or, more particularly, the members of a full court. The full court exercises, and, relevantly for the current proceedings, the Court of Criminal Appeal exercises, a different jurisdiction to that of a single judge from which an appeal arises, even though the judges on appeal and at first instance may be from the same court: Jarman, supra, at 610 per Dawson J. Of necessity, all appeals are the exercise of a statutory jurisdiction.

20 The common law method by which a superior court of record controls the exercise of the jurisdiction of an inferior court was not by appeal, but by the issue of prerogative relief (usually certiorari or, in earlier times, writ of error): see Re McBain; Ex Parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 at [262]; Conway v R [2002] HCA 2; (2002) 209 CLR 203 at [7]-[12]. The notion that the Supreme Court could issue prerogative relief against the Court of Criminal Appeal is so improbable as to be bizarre, and would be inconsistent with the comments of Dawson J in Jarman, supra. No court is entitled to issue prerogative relief against itself: Jarman, supra.

21 Further, an analysis of s 48 of the Supreme Court Act 1970 reveals that, if such an application for prerogative relief were made it would, at least initially, be assigned to a single judge, and be within the jurisdiction of a single judge. It is clear that the Supreme Court Act does not contemplate prerogative relief issuing against the Court of Criminal Appeal.

22 Since no other court in NSW has jurisdiction to issue prerogative relief against officers of the State or State courts, and since judges of the Supreme Court are not officers of the Commonwealth (even when exercising federal jurisdiction) no prerogative writ can issue against the Court.

23 While there have been many judicial pronouncements on the attributes of a superior court of record, the major attributes were summarised by Latham CJ in The King v Metal Trades Employers’ Association; Ex Parte Amalgamated Engineering Union Australian Section [1951] HCA 3; (1951) 82 CLR 208 in an analysis of the then Commonwealth Court of Conciliation and Arbitration which was, purportedly, created as a superior court of record (see s 17(3) of the Commonwealth Conciliation and Arbitration Act 1904-1947) and purportedly given the power of a superior court of record to punish, by attachment and committal, any person whom it may have found to have been guilty of contempt (see s 83(2) of the aforesaid statute).

24 In the course of that analysis, Latham CJ described the ordinary characteristics of a superior court of record as: first, the orders of a superior court are assumed to be valid until the contrary is shown; second, the officers of a superior court are protected in relation to executions effected by them, even though the orders under which they act are void; third, certiorari does not go to a superior court; fourth, in general, prohibition and mandamus do not go to a superior court; fifth, and described as most importantly by Latham CJ, it has power to punish for contempt. His Honour proceeded to determine that the then Commonwealth Court of Conciliation and Arbitration was not, despite the legislation, a superior court of record, because each of those attributes did not apply to that Tribunal, except by express statutory enactment.

25 On the other hand, plainly, these attributes apply to the Court of Criminal Appeal. I have already dealt with the inability to issue prerogative relief against the Court of Criminal Appeal. Clearly, it has power to punish for contempt, if for no other reason than it is comprised of judges of the Supreme Court, acting in a judicial capacity and exercising a jurisdiction conferred on them as judges of the Court by the legislature. As a consequence, it is manifestly the case that the Court of Criminal Appeal is a superior court of record with the powers and attributes of a superior court of record, constituted to exercise the jurisdiction conferred by the Act. So much was accepted by the High Court in Burrell, supra, and in Elliott v The Queen; Blessington v The Queen [2007] HCA 51; (2007) 234 CLR 38; (2007) 82 ALJR 82 (Elliott & Blessington) and by this Court in AN (No 2) v R [2006] NSWCCA 218; (2006) 66 NSWLR 523 and Alramadan v Director of Public Prosecutions (NSW) (No. 2) [2008] NSWCCA 69.

26 As a consequence of its described status, this Court has the powers of a superior court of record. Further, as earlier stated, the Act, in s 12, provides that the Court may exercise the powers otherwise available to the Supreme Court. That provision confirms the capacity of the Court to exercise the powers of a superior court of record relevant to the jurisdiction being exercised on appeal. I reiterate that the foregoing is a discussion on the powers of the Court, not its jurisdiction. Those powers are exercisable only in support of the confined jurisdiction exercised under the Act.

Power to correct judgment

27 Reasons for judgment are not the judgment of the Court. The foregoing is trite.

28 The judgment of a court is entered and forms part of the record of the proceedings and, at common law and absent statutory expansion, forms the basis for certain prerogative writs: see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163.

29 Reasons for judgment do not ordinarily form part of the record of the court: Craig, supra; but, for the purpose of the issue of orders in the nature of certiorari, s 69 of the Supreme Court Act now renders reasons for judgment part of the record.

30 At least in part, for that reason, or derived in part from the principles that give rise to that reason, significant restrictions are imposed upon the jurisdiction of a superior court to alter judgments, once entered.

31 As stated in Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 at 436, Dixon J commented:

“The determination of an appeal is evidently definitive, and a conviction unappealed is equally final. No considerations controlling or affecting the conclusion to be deduced from these provisions are supplied by analogous civil proceedings.”

His Honour was there referring to the effect of the Act.

32 Likewise in the joint judgment of Dawson and Gaudron JJ in Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 300, their Honours said:

“If a final order was made perfecting the decision of the Court of Criminal Appeal on Postiglione's first application, the assumption of jurisdiction to entertain his second application and the ensuing appeal was contrary to the decision of this Court in Grierson v The King [1938] HCA 45; (1938) 60 CLR 431. It was held in that case that the Criminal Appeal Act 1912 (NSW) does not confer jurisdiction to reopen an appeal which has been heard on the merits and finally determined. A fortiori , in a case where what is involved is the hearing of a second appeal. Pantorno does not suggest otherwise. The view was expressed in Pantorno that an intermediate court of appeal can entertain an application to remedy a denial of procedural fairness whether or not its order has been perfected ( Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466 at 474 per Mason CJ and Brennan J, 484 per Deane, Toohey and Gaudron JJ.)”

The foregoing approach was also adopted or accepted by McHugh J (at 315) and by Gummow J (at 327) in Postiglione, supra.

33 Thus, there are two quite distinct periods, each of which determines the ability to alter judgments or orders. Prior to the judgment being entered, the circumstances in which a court will be persuaded to entertain further argument (and possibly further evidence) are extremely limited. In relation to such earlier period, the High Court, in Elliott & Blessington applied the civil criteria expressed by the Court in Autodesk Inc v Dyason (No. 2) [1993] HCA 6; (1993) 176 CLR 300 which said, at 303:

“What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.”

34 On the other hand, after judgment has been entered there are only three bases upon which a judgment or order may be reopened and amended and they are:

(a) the “slip” rule;

(b) the power to amend the rule where the intention of the Court has not manifested in the judgment; and

(c) the capacity to allow the opening of orders made in chambers: see Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529; DJL , supra, CH Giles & Co v Morris (1972) 1 All ER 1960.

35 In Baileyv Marinoff, supra, Barwick CJ said:

“Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.” (Per Barwick CJ at 530.)

In the same judgment, Menzies J said:

“This appeal is not concerned with the power of a court to alter orders in pending litigation. It is concerned with the power of a court to make an order in litigation which, without any error or lack of jurisdiction, has been regularly concluded and is no longer before the court. To recognize the problem is, I think, to solve it. However wide the inherent jurisdiction of a court may be to vary orders which have been made, it cannot, in my opinion, extend the making of orders in litigation that has been brought regularly to an end.” (Per Menzies J, Baileyv Marinoff , supra, at 531-532.)

36 Bailey v Marinoff, supra, was a judgment of the High Court on appeal from the Court of Appeal which had made self-executing orders the effect of which was that proceedings were dismissed. The Court of Appeal then purported to reinstate the matter into the list.

37 In DJL, supra, the High Court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said:

“[34] The common law courts, as superior courts of record, had ‘full power to rehear or review a case until judgment [was] drawn up, passed, and entered’. That statement, with citation of supporting authority, was made by Starke J in Texas Co (Australasia) Ltd v Federal Commissioner of Taxation . Even after entry of judgment, an error arising from an accidental slip or omission might be corrected at any time by further order in the action and even without an enabling rule of court. An order also might be made in the action for the correction of the records of the court to make certain that they truly represented what the court had pronounced or had intended to pronounce. It also appears that a judgment might be set aside after entry if the parties to the judgment consented, although in deciding whether to make such an order the court would have regard to the interests of third parties. Finally, where the business of the court was so organised that some orders were made in chambers, those orders may have been open to review by motion in the action, even if they were final orders.

[35] The Court of Chancery had power to reopen and rehear cases which had been tried before it, even after the decree had been entered. The right of rehearing in the Court of Chancery had involved the exercise of appellate rather than original jurisdiction. Sir George Jessel MR so concluded in In re St Nazaire Co . However, that peculiar state of affairs in Chancery did not continue with respect to the exercise of equitable jurisdiction by the Supreme Court of Judicature established by the Judicature Act 1873 (UK). The structure it provided included the Court of Appeal.” ( DJL , supra, at 244, [34]-[35].)

38 Plainly, the primary submission of the respondents that the Court has no power to alter its reasons for judgment does not withstand scrutiny. The power to alter reasons must be at least as wide as the power to alter the judgment. In other words, there must, at the very least, be a power, in a superior court of record, to alter reasons for judgment to overcome a slip or where the intention of the Court has not manifested in the reasons.

39 Further, the respondents’ submission mistakes the wording of the reasons with the content of the reasons. Whereas the judgment of a court is the expression from which that which may be enforced must be taken, the reasons are the rationale upon which that judgment is based.

40 Thus, an infelicitous expression may be corrected without effecting an alteration to the reasons. It would simply be an alteration to the wording of the reasons.

41 As already stated, superior courts alter reasons delivered ex tempore by correcting an infelicitous or injudicious use of language or correcting some grammatical expression. Such an alteration does not alter the reasons for judgment. But the Court is not entitled to alter the wording in a manner inconsistent with the reasons originally issued. Even then, there are exceptions. For example, if a court expressed reasons that mistakenly inserted the word “not”, or omitted it; or mistakenly referred to the “plaintiff” instead of the “applicant”, who or which may be the defendant. Further, a judgment may issue (and be entered) before reasons are published, when urgency requires it and the judge has reserved his reasons: see Fletcher Construction Australia Ltd v Lines MacFarlane Marshall Pty Ltd [2001] VSCA 167 at [38]-[40], and cases cited therein.

Alteration of reasons for judgment

42 As stated above, relevantly for present purposes, the term “reasons for judgment” does not coincide with the wording of the reasons for judgment. Neither counsel for the appellant nor counsel for the respondents referred to any authority relating to the principles that apply to the alteration of reasons for judgment, as distinct from the judgment itself, with the possible exception of Burrell, supra. There is other authority. The Court of Appeal in Victoria (Charles, Chernov and Vincent, JJA) in Fletcher Construction, supra, dealt with this very issue. The Victorian Court of Appeal said:

“[49] 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. In the case of a superior court of record, judgment is not relevantly finalised until it is entered in the records of the court. Hence, until that occurs, the judge can recall the order and the reasons and make a different order and give different reasons - Smith v. Australia and New Zealand Banking Group Ltd.; Sherpa v. Anderson; Mulvena; Re Harrison's Shares Under a Settlement. 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, L.J. in Bromley v. Bromley (No.2) , ‘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 Bank of 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.

[50] An example of a case where it was held that the judicial officer had impermissibly changed the reasons for the decision is Lam v. Beesley . In that case, the magistrate announced the verdict and convicted the defendant for reasons which he gave orally. He then sentenced him and subsequently published ‘Reasons for Decision’ in which he made a finding of fact that was inconsistent with his earlier finding as expressed in his ex tempore reasons. On appeal, Owen, J. held that the two findings could not stand together and that, in the circumstances, the magistrate was not entitled later to formulate reasons which were, in substance, different from those which had been pronounced. His Honour held that, in the circumstances, the conviction could not stand. More recently, in Todorovic v. Moussa leave to appeal from the decision of the District Court was granted by the New South Wales Court of Appeal seemingly for the reason that after delivery of an oral judgment the District Court judge inserted in his corrected judgment an additional sentence, namely, ‘I do not accept [X] as an accurate witness’. It would appear that there was no other reference in the reasons to the acceptability or otherwise of X's evidence which in fact was corroborated by other evidence. Furthermore, it was at least arguable that the addition of a broad statement that was unconnected with the rest of the reasons, namely, that the judge did not accept the witness, went beyond what could be done when revising an oral judgment.

[51] It seems, however, that 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. Thus, it is clear enough, for example, that a judge can alter the transcript of the reasons at any time to remove an error brought about by an administrative act which related to the compiling of the reasons - Nakhla; Bromley . 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. It is common practice for judges to make changes not only to reasons that have been given ex tempore, but also to written reasons and in the latter case to make changes to them between the time they are published and when they become the subject of an authorised report. For example, in Duke of Buccleuch v. Inland Revenue Commissioners Lord Reid and Lord Guest did not question the correctness of the action of Sankey, J. in deleting in the version that was later published in the Law Reports a paragraph of his reasons in Ellesmere (Earl of) v. Inland Revenue Commissioners, which had been published in the Law Times. In fact, Lord Reid considered that Sankey, J. was wise to have deleted that paragraph, given that his Honour must have had a reservation about its correctness.” (Citations omitted.)

43 Following the judgment of the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, this statement should be treated as at least highly persuasive and should be departed from only if the judgment is plainly wrong. In my view, the judgment is plainly correct. And, with great respect to the Victorian Court of Appeal, I adopt that statement of principle and apply it in the motion that is now before the Court.

44 The respondents rely particularly on statements in Grierson, supra, Elliott & Blessington, supra, and Burrell, supra. Each does not stand for a principle inconsistent with the foregoing statement by the Victorian Court of Appeal.

45 Grierson, supra, concerned an attempt to reopen an appeal that had been determined against the interests of the appellant or, alternatively, to file a fresh appeal. The Court of Criminal Appeal refused the application. It was not an attempt to “correct” an error in wording, but an attempt to achieve a different (and opposite) result to the appeal. The proceedings concerned an alteration to the judgment of the Court, not a clarification of the reasons for a judgment already determined.

46 Likewise, Elliott & Blessington, supra, dealt with an attempt by the prisoners to appeal, a second time, against the life sentence imposed upon them. Further, the second appeal sought to agitate a “non-release” recommendation in the sentencing judge’s Remarks on Sentence. The latter was not a sentence and was not open to appeal. The former could not be agitated if, as was the case, the first appeal had been determined. Again, this judgment concerned the approach to an application to alter the judgment of the Court, not to clarify its reasons.

47 Lastly, the respondents rely on Burrell, supra. The High Court in Burrell, supra, determined that the Court of Criminal Appeal had no power to reopen an appeal, once judgment had been formally entered for the purpose of reconsidering an issue or considering a different issue. In those proceedings, the Court of Criminal Appeal had based its reasons, as first published, on an incorrect understanding of the facts of the case. The Court had relied upon a Crown case statement filed before any evidentiary rulings were made, which was an inaccurate summary of the case as presented at trial.

48 The Court of Criminal Appeal in Burrell, supra, sought to correct its reasons by delivering judgment confirming its first judgment, but by reference to different facts (the correct facts) than those relied on in the first judgment. This, according to the High Court, was impermissible because it sought to reopen the case and to reconsider or review its judgment. In that sense, the procedure in Burrell, supra, was akin to that discussed in Todorovic v Moussa (Court of Appeal, Powell and Heydon, JJA, 9 April 2001, unreported) referred to in Fletcher Construction, supra, at [50].

49 The circumstances of this motion is not an attempt to reopen the appeal. Nor is it a review or reconsideration of the judgment issued. Further, the Court is not requested to alter the basis or rationale of its judgment. Rather, the Court is, in the one instance, correcting a slip, being the omission of words, and, in the second, clarifying an infelicitous or ambiguous expression. It is necessary then to deal with the original intent of the Court as sought to be expressed in the original reasons.

The first alteration: paragraph [3] of the original reasons

50 As initially published, paragraph [3] of the original reasons was in the following terms:

“Anthony Joseph Luis Hili and Glyn Morgan Jones (the Respondents) cheated on company tax. They paid out on false invoices, thereby avoiding GST and income tax, and returned the money to their own personal accounts. They were charged, pleaded guilty and were sentenced by the District Court to a term of imprisonment of 18 months, commencing 13 November 2009, with a recognizance release order at the expiration of 7 months, which order would commence on 12 June 2010. The Crown appeals those sentences and alleges that they are manifestly inadequate.”

51 The appellant submits that the reference to GST was a slip and the Court either intended or should be taken to have intended to have stated “company”, rather than “GST”.

52 The reference to GST was not the slip involved in the wording of paragraph [3] of the original reasons, but the paragraph reflects a slip. The detailed summary of the facts, which formed the basis of the judgment, are set out in the original reasons at paragraph [6]. Paragraph [3] was intended as a general introduction and is missing a word from the originally intended expression. The term “avoiding GST and income tax” was originally intended to read “avoiding GST and evading income tax”. That is the reason that, as already published, paragraph [3], when referring to the respondents having “cheated”, referred only to company tax, which, for relevant purposes, is the income tax to which the reasons otherwise refer.

53 If the false invoices were not organised in a way which “avoided GST”, GST would have been payable and paid. As a consequence, the amount by which the respondents defrauded the Commonwealth would have been lessened and the Court would have been required to give the respondents credit for those amounts.

54 Because the false invoices were for or in relation to overseas transactions supplied by an overseas entity, GST was not payable: see A New Tax System (Goods and Services Tax) Act 1999 (Cth). The intended wording drew the distinction between a scheme which, if genuine, would not have occasioned the payment of GST (“avoidance”) and the fraudulent evasion of income tax.

55 The reasons for judgment involve, in that respect, a slip and will be amended by inserting the word “evading” before the words “income tax” in paragraph [3] of the original reasons.

The second alteration: paragraph [44] of the original reasons

56 As initially published, paragraph [44] of the original reasons was in the following terms:

“I would not interfere with her Honour’s proportion in terms of mandatory imprisonment period as I accept that there are grounds upon which her Honour could find that there are special circumstances that warrant fixing such a period as low as 50% (but no lower) and I continue her Honour’s approach. Those special circumstances include: that this is the first time these offenders will be in prison; the good prospects of rehabilitation; and the necessity to ensure assistance in assimilating back into the community and dealing with their past alcohol issues.”

57 The appellant submits that paragraph [44] should be amended to delete the word “not” before the word “interfere”, delete the word “as” and replace it with the word “because although” and otherwise altering the paragraph to reflect the sentiment that the Court was of the view that a mandatory term of imprisonment which was less than 50% of the total sentence would be inappropriate.

58 Plainly, the intention of the Court was to fix a mandatory detention period that was 50% of the total sentence imposed and no lower. As I understand the submission of the respondents, it was that the Court was of the view that a period of mandatory imprisonment of 7 months out of a total of 18 months was 50% of the period and sought to apply that ratio.

59 While I am prepared to accept that I am not an expert in arithmetic (a term used here to distinguish it from mathematics), it is plainly absurd that the Court would take the view that 7 months out of 18 months was 50%. It is, in fact, 38.9% (rounded).

60 However, the slip made is, again, not the one suggested by the appellant. The wording that would properly reflect the Court’s, or my, original intention is the insertion of the words “approach to fixing a lower than usual” after the words “not interfere with her Honour’s”, so that paragraph [44] of the original reasons would then read:

“I would not interfere with her Honour’s approach to fixing a lower than usual proportion in terms of mandatory imprisonment period as I accept that there are grounds upon which her Honour could find that there are special circumstances that warrant fixing such a period as low as 50% (but no lower) and I continue her Honour’s approach. Those special circumstances include: that this is the first time these offenders will be in prison; the good prospects of rehabilitation; and the necessity to ensure assistance in assimilating back into the community and dealing with their past alcohol issues.”

61 Where paragraph [44] (as unamended) refers to “her Honour’s approach” being continued, it was her Honour’s approach to fixing a lower than usual proportion and not her Honour’s ratio of 39%. As, in my view, the original reasons for judgment seek to make clear, in this case a mandatory imprisonment term that represents 39% of such a short period does not reflect the criminality of the respondents’ conduct, nor would anything less than 50% of the head sentence imposed as a result of the judgment of this Court.

62 Further, it would be inappropriate to lengthen the overall sentence for the purpose of fixing a lower percentage for the minimum mandatory period of imprisonment that then reflected the criminality of the conduct (e.g. fixing 40% of 3 years and 9 months). Both the head sentence and the mandatory term of imprisonment must appropriately reflect the matters before the Court, and a court cannot lengthen the head sentence to an inappropriate level simply in order to obtain an adequate minimum mandatory custody period at a lower proportion than would otherwise apply.

63 Again, the intent of the original reasons has been infelicitously expressed and correcting the wording of the reasons to reflect better the original intent is not altering the basis or rationale of the judgment, as it was originally intended.

64 The reasons for judgment as originally published will be altered to reflect the foregoing.

Conclusion

65 Neither of these alterations involve an alteration to the rationale or basis upon which the appeal was granted and the sentence fixed. As a consequence, the alterations to the wording of the reasons are within power and will be made.

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