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),…
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- Case
- [2008] ACTSC 95
- Decision Date
CaseChat Overview and Summary
The court considered the nature of the error in this case, which involved a deferred sentence order that was not made by the court, nor was the sentence intended to be generated by it. Instead, the court had ordered the accused to appear in 12 months' time to be sentenced for the offence. The court examined the principles surrounding the correction of orders under the slip rule and the implications of such errors on the administration of justice. It concluded that it possessed the implied or inherent power to correct clerical mistakes in orders when the error resulted from an accidental slip or omission.
The court, therefore, ordered the correction of the erroneous order, which included changes to the offence recorded, the bail conditions, and the undertaking for bail. It also directed the accused to appear on specific dates for further proceedings and sentencing. The court maintained the bail of the accused despite the errors in the order, emphasising that the errors had been corrected and did not affect the substance of the bail conditions. Furthermore, it granted liberty to the parties to apply to another judge of the court if any matters arose from the corrections made to the orders.
Orders
Orders of the court
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.
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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