R v Slovoc Popovski (No 2)
[2008] ACTSC 95
•12 September 2008
R v SLOVOC POPOVSKI (NO 2)
[2008] ACTSC 95 (12 September 2008)
PRACTICE AND PROCEDURE – correction of orders under slip rule – incorrect order entered as result of clerical error – order entered does not reflect order made or intended to be made by Court – implied or inherent power of superior court of record to correct clerical mistake in order if error result of accidental slip or omission
CRIMINAL LAW – deferred sentence order incorrectly entered – deferred sentence order not made by Court – sentence not generated or intended to be generated by Court – Court ordered accused to appear in 12 months’ time to be sentenced for offence
Crimes (Sentencing) Act 2005 (ACT), ss 27(2), 116, 117 and 118
Supreme Court Act 1933 (ACT), ss 3(2), 20(1)(a)
Court Procedure Rules 2006 (ACT), r 6906(2)
Burrell v The Queen (2008) 82 ALJR 1221; [2008] HCA 34 applied
Food Improvers Pty Ltd v BGR Corporation Pty Ltd(No 5) [2007] FCA 466 cited
L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590 cited
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 followed
EX TEMPORE JUDGMENT
No. SCC 11 of 2008
Judge: Rares J
Supreme Court of the ACT
Date: 12 September 2008
IN THE SUPREME COURT OF THE )
) No. SCC 11 of 2008
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
SLOVOC POPOVSKI
ORDER
Judge: Rares J
Date: 12 September 2008
Place: Canberra
THE COURT ORDERS THAT:
The order entered yesterday be corrected by deleting all words after “Mr Thomas counsel” and inserting instead:
“… for the accused
THE COURT ORDERS THAT:
1.The accused appear before the Court on 30 July 2009 at 9.30am for a directions hearing and in relation to obtaining a pre-sentence report.
2.The accused appear before the Court on Thursday 10 September 2009 to be sentenced for the offence.
3.Pursuant to s 27(2) of the Crimes Sentencing Act 2005 (ACT), sentence be deferred for 12 months until 10 September 2009 on the conditions that the accused:
(a)accept the supervision of the Executive Director of ACT Corrective Services (or his delegate);
(b)undertake urinalysis testing from time to time as directed by the Executive Director of ACT Corrective Services (or his delegate);
(c)undertake counselling/treatment/programs deemed appropriate by the Executive Director of ACT Corrective Services (or his delegate) including any recommended for the management of drug issues.
4.The accused be granted bail on the condition that he complies with the conditions in Orders 1, 2 and 3 above.
5.The accused report today, as soon as reasonably possible, to ACT Corrective Services for the purposes of placing himself under its supervision.
6.The first count in the indictment be dismissed.
7.The order undertaking and conditions for bail be corrected by changing:
(a)the offence so as to record “Possessing a drug of dependence, namely, cocaine” and to delete “Traffici [sic] in a Controlled Drug other than Cannabis”;
(b)bail conditions 1-3 be deleted and there be substituted conditions (a), (b) and (c) in Order 3 above;
(c)bail condition 4 be deleted and there be substituted Order 5 above.
8.The accused attend at the Court on or before 19 September 2008 so as to re-execute the undertaking to appear, after it has been corrected to reflect the orders and conditions upon which he was admitted to bail as pronounced originally and reflected in these orders.
9.The bail of the accused continue, notwithstanding errors (which have been corrected) in the form of the order, undertaking and conditions for bail which was erroneously entered yesterday.
10.Grants liberty to the parties to apply to another judge of this Court in the event that there be any matters arising out of the corrections to the orders as erroneously entered made today.”
Yesterday after I pronounced my orders orally, a deputy registrar of the Court drew up a form of “deferred sentence order” and sealed it with the seal of the court. On my adjourning after hearing other matters in yesterday's list, I became aware of the deferred sentence order as drawn up and entered by the deputy registrar. It purports to record under the heading "Other Matters" and as the formal order 1, matters which were not any part of an order I made or pronounced orally. And, I did not intend to make any orders in that form. The order entitled "Deferred Sentence Order" entered yesterday is not an order made by me.
The material in the section "Other Matters" of that order should not have been included in the orders of the court. I gave oral reasons which addressed the issues in ss 116, 117 and 118 of the Crimes (Sentencing) Act 2005 (ACT). Those sections do not require an order for a deferred sentence made pursuant to s 27(2) to record any of the material in the document prepared by the deputy registrar. In any event, that recording was inaccurate since I did not, and the operation of s 118, did not "generate" any sentence. I have not sentenced the accused at all. I exercised the power of the court under s 27(2) to order him to appear in 12 months’ time "to be sentenced for the offence".
The form of order 1 is also erroneous. It reads:
"The court orders that the deferred sentence commences on 11 September 2008 and ends on 10 September 2009."
I made and I intended no such order.
Under s 3(2) of the Supreme Court Act 1933 (ACT), the court is a superior court of record. And, by s 20(1)(a) it has all original jurisdiction that is necessary to administer justice in the Territory. Under Rule 6906(2) the court may of its own initiative at any time correct a mistake or error of a clerical nature which resulted from an accidental slip or omission.
In Burrell v The Queen (2008) 82 ALJR 1221 at 1227; [2008] HCA 34 at [21] Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ said (Kirby J agreed at [104]):
“The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order (L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590 at 594-595) 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.”
This court has also an implied, if not inherent, power as a superior court of record to correct any clerical mistake in a judgment, decree or order, if it were the result of an accidental slip or omission: Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 452F-G per McHugh JA; The Food Improvers Pty Ltd v BGR Corporation Pty Ltd(No 5) [2007] FCA 466 at [5] per myself.
I order that the order entered yesterday be corrected by deleting all words after "Mr Thomas, counsel" and inserting instead:
“… for the accused
THE COURT ORDERS THAT:
1.The accused appear before the Court on 30 July 2009 at 9.30am for a directions hearing and in relation to obtaining a pre-sentence report.
2.The accused appear before the Court on Thursday 10 September 2009 to be sentenced for the offence.
3.Pursuant to s 27(2) of the Crimes Sentencing Act 2005 (ACT), sentence be deferred for 12 months until 10 September 2009 on the conditions that the accused:
(a)accept the supervision of the Executive Director of ACT Corrective Services (or his delegate);
(b)undertake urinalysis testing from time to time as directed by the Executive Director of ACT Corrective Services (or his delegate);
(c)undertake counselling/treatment/programs deemed appropriate by the Executive Director of ACT Corrective Services (or his delegate) including any recommended for the management of drug issues.
4. The accused be granted bail on the condition that he complies with the conditions in Orders 1, 2 and 3 above.
5.The accused report today, as soon as reasonably possible, to ACT Corrective Services for the purposes of placing himself under its supervision.
6.The first count in the indictment be dismissed.
7.The order undertaking and conditions for bail be corrected by changing:
(a)the offence so as to record “Possessing a drug of dependence, namely, cocaine” and to delete “Traffici [sic] in a Controlled Drug other than Cannabis”;
(b)bail conditions 1-3 be deleted and there be substituted conditions (a), (b) and (c) in Order 3 above;
(c)bail condition 4 be deleted and there be substituted Order 5 above.
8.The accused attend at the Court on or before 19 September 2008 so as to re-execute the undertaking to appear, after it has been corrected to reflect the orders and conditions upon which he was admitted to bail as pronounced originally and reflected in these orders.
9.The bail of the accused continue, notwithstanding errors (which have been corrected) in the form of the order, undertaking and conditions for bail which was erroneously entered yesterday.
10.Grants liberty to the parties to apply to another judge of this Court in the event that there be any matters arising out of the corrections to the orders as erroneously entered made today.”
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Rares
Associate:
Date: 23 September 2008
Counsel for the Crown: Ms J Davidson
Solicitor for the Crown: Director of the Public Prosecution for the ACT
Counsel for the Accused: Mr R Thomas
Solicitor for the Accused: S & T Lawyers
Date of hearing: 12 September 2008
Date of judgment: 12 September 2008
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