R v Slovoc Popovski (No 2) - [2008] ACTSC 95

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),…

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.

Keep reading for free

Create a free CaseChat account to read R v Slovoc Popovski (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] ACTSC 95
Decision Date: 12 September 2008

CaseChat Overview and Summary

The case of R v Slovoc Popovski (No 2) involved the accused, Slovoc Popovski, who was in dispute over the correctness of orders made during his criminal proceedings. The matter was heard in the ACT Supreme Court. The primary issue before the court was whether it had the power to correct an order that was entered incorrectly due to a clerical error, which did not reflect the order made or intended by the court. The court had to determine if the inherent power of a superior court of record could be exercised to amend such errors, particularly when they resulted from accidental slips or omissions.

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;

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.