El Ali v R (No 2)

1. [1]

   THE COURT: On 30 August 2019 the Court delivered judgment granting the applicant, to the extent necessary, leave to appeal from two convictions following a trial by jury, but dismissing the appeal. The orders were entered on the day judgment was delivered.

2. [2]

   On 10 September 2019 the applicant sought an order setting aside or varying the judgment pursuant to r 50C of the Criminal Appeal Rules (NSW). His basis for seeking such relief were statements in a submission filed with the application that the Court had failed to consider grounds 2 and 5 in his notice of appeal, or had failed to address his submissions with respect to those grounds.

3. [3]

   Before considering whether such omissions occurred and, if they did how they should be addressed, it is necessary to identify the jurisdiction relied upon in making the application. The Commonwealth Director of Public Prosecutions, who conducted the trial with respect to the two State offences, advised the Court that she did not wish to be heard in response to the application. Nevertheless, the Court must be satisfied that it has jurisdiction to consider the application, a matter on which the applicant provided little assistance in his written submission.

Criminal Appeal Rules

1. [4]

   The source of jurisdiction relied upon by the applicant was r 50C(2) of the Criminal Appeal Rules, which commenced on 7 September 2007. [1] It is convenient to set out r 50C in full:

2. [5]

   The operation of the rule is best understood when placed in its historical context. More than 80 years ago, in Grierson v The King [2] the High Court held that once an appeal under s 5 of the Criminal Appeal Act 1912 (NSW) had been heard and determined, and final orders entered, the Court had no power to reopen the appeal, nor could a further appeal be entertained. The principle was applied in 2008 in Burrell v The Queen, [3] a case in which this Court had sought to reopen its own judgment after realising that it had proceeded on a false factual basis. The Court, after hearing from the parties, had undertaken its own reconsideration of the appeal but had confirmed its decision to dismiss the appeal. The fact that the orders were not altered did not validate the process. It was the reconsideration of the ultimate determination which constituted a departure from the principle of finality, as reflected in the absence of statutory authority to reconsider entered orders. [4] The High Court held that this Court “did not have power to reopen the appeal after its first orders had been formally recorded.” [5]

3. [6]

   The joint reasons in Burrell noted that the Criminal Appeal Rules had been amended since the decision of this Court by the addition of r 50C, including subr (3) which permitted the Court to set aside or vary an order within 14 days after it was entered, of its own motion. The joint reasons then noted: [6]

4. [7]

   In March 2008, this Court had the occasion to consider the operation of r 50C in Alramadan v Director of Public Prosecutions (NSW) (No 2). [7] The Court stated:

5. [8]

   In 2008 the rule did not contain the present subrules (1A) and (1B), nor the reference in parenthesis in subr (5) to the power to correct clerical mistakes or accidental slips or omissions. Those additions were added in 2016.

6. [9]

   Although no challenge was raised as to the validity or operation of r 50C(2), it is necessary that the Court be satisfied that the rule confers jurisdiction and power to entertain the present application. As noted in Burrell, by reference to an earlier decision involving the Family Court, DJL v Central Authority, [8] whether the Court has power to reopen and reconsider an appeal depends on “the text of the governing statutes and any express or implied powers to be seen therein.” On one view, it might be doubted whether a rule of court could expand the powers of the Court in circumstances where the statute has been held not to confer a specific power. On that view, a statutory amendment would be required.

7. [10]

   The alternative (and preferable) view is that provisions dealing with the formal entry of judgments, and the time at which they take effect, concern administrative matters which may properly be dealt with by rules of court, within the rule-making power in s 28(2) of the Criminal Appeal Act. That section confers power to make rules with respect to the “regulation of the practice and procedure under this Act” and with respect to any matters which “in the opinion of the Rule Committee of the Supreme Court are necessary or expedient for giving effect to the purposes of this Act.” [9] Thus, prior to the amendments the Rules provided for recording the determination of the court (r 51 and former r 53); they now also provide for the time at which the consequence of entry of an order is engaged, and provide a procedure for avoiding the finality of the orders. On this approach, r 50C falls within the scope of the rule-making power in s 28(2); at least, the validity of the rule was not challenged and is not clearly beyond power. Accordingly, the Court has the relevant jurisdiction and powers to reconsider the appeal, the application having been made within 14 days of the orders being entered. [10]

8. [11]

   There is another course to the same conclusion. Section 12(1) of the Criminal Appeal Act confers on the Court certain powers “in relation to the proceedings of the court” including, in addition to certain nominated powers, “any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters…”. The powers conferred by r 50C are in similar terms to those exercised in the civil jurisdiction under the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 36.16. Indeed as noted in Alramadan, the equivalent provisions in UCPR r 36.16(3A)-(3C) were introduced contemporaneously with r 50C of the Criminal Appeal Rules.

9. [12]

   To allow for the application of UCPR Pt 36, the effect of s 12, which has, relevantly, been in the same terms since its enactment in 1912, must be ambulatory. When providing a new form of statutory appeal in criminal cases, the legislature had a choice between, on the one hand, spelling out exhaustively the powers of the Court and, on the other, adopting the powers conferred on the same Court in dealing with civil appeals. It is clear from s 12 that the legislature adopted the latter alternative. In doing so, it could have specified the powers as those conferred at the date of enactment, or, by silence, it may have implied that the powers in civil appeals are those available from time to time. By analogy with decisions of the High Court in relation to the picking up by the Judiciary Act 1903 (Cth), s 68(2), of State jurisdiction with respect to criminal appeals, as explained by Gleeson CJ in The Queen v Gee, [11] the legislative choice indicates “the desirability of giving that language a construction that enables it to pick up procedural changes and developments as they occur in particular States from time to time.” In the present case, giving s 12 an ambulatory effect allows it to pick up the powers conferred on the Supreme Court in the exercise of its civil appellate jurisdiction, at the time the criminal jurisdiction is invoked.

10. [13]

    It remains to consider whether that approach is consistent with authority. In Grierson, in considering the operation of the Criminal Appeal Act, Dixon J stated: [12]

11. [14]

    In The Queen v A2, [14] Edelman J referred to s 12 of the Criminal Appeal Act and the reasoning of Dixon J in Grierson as supporting the proposition that the section is “not an acknowledgment of any inherent jurisdiction of the Court of Criminal Appeal, nor does it permit a cross-pollination of the considerations concerning a venire de novo from civil proceedings to criminal proceedings.” [15] That proposition does not stand against the use of s 12 proposed above.

12. [15]

    Of more direct application, the High Court was asked in Elliott v The Queen; Blessington v The Queen [16] to reopen an appeal against sentence, in circumstances where, some 14 years after the appeal had been dismissed, Parliament changed the effect of a statement made in the course of sentencing, effectively to prevent the offender ever being released. A further exceptional feature of the case was that the order dismissing the first appeal had never been entered. In that context, the High Court made the following statements about the operation of Grierson in the context of s 12(1) of the Criminal Appeal Act:

13. [16]

    In O’Neil-Shaw v The Queen [20] this Court set aside a sentence on the basis that it was infected by procedural unfairness, and, applying s 12(2), remitted the matter to the District Court for the offender to be resentenced. As the High Court noted in Betts v The Queen [21] (a challenge to the refusal by this Court to allow further evidence to be called on appeal) there was, arguably, an inconsistency between the terms of s 6(3) of the Criminal Appeal Act and a power of remittal.

14. [17]

    Authority does not stand in the way of the application of s 12(2) identified above. There are therefore two sources of power for the Court to deal with the present application.

15. [18]

    Absent submissions to the contrary, it may be accepted that this Court has power to consider the application to reopen its judgment, being an application lodged within 14 days of the entry of the orders.

16. [19]

    It may be noted that the introduction of rules delaying the operation of the principle of finality with respect to entered orders coincided with the provision that entry occurred when orders were “recorded in the court’s computerised court record system”. [22] Orders were then deemed to be entered when so recorded by court staff, which in practice is usually within hours or even minutes of judgment being delivered. The parties have no control over that process and therefore no opportunity to consider the propriety of the orders before they are entered.

Leave to apply

1. [20]

   Rule 50C(1A) now requires that an application be made only with leave of the Court. As noted above, the basis for the present application was that this Court “did not specifically address the substance of [the appellant’s submissions in relation to grounds 2 and 5] in dismissing the applicant’s appeal.” [23] At a later point the submissions implied that the Court had failed “to consider grounds 2 and 5 of the appeal.” [24]

2. [21]

   These statements must be approached with some caution. On the one hand, it was clearly incorrect to suggest that the Court did not consider grounds 2 and 5, to which it expressly referred in its reasons. On the other hand, the Court would rarely reopen a judgment merely because submissions had not been referred to in the judgment. Just as the judgment of a trial court will not refer to some evidence, nor all in the same detail, so an appeal judgment will not refer to each submission with the same degree of detail, and may disregard some submissions entirely, if they are thought to be repetitive, immaterial or patently wrong. For example, it will not be necessary to identify a number of legally erroneous statements in the submissions provided in support of the present application.

3. [22]

   In Alramadan, at a time when leave was not required to make an application under r 50C, the Court noted the approach to be applied in addressing such an application:

4. [23]

   Such an approach, approved by this Court in Kauwenberghs v R (Cth), [27] should inform both the question of leave and the disposal of the application. For reasons which will appear below, it is appropriate to grant leave for the present application. Although the rejection of grounds 2 and 5 was the logical consequence of the reasons given by the Court, it would have been preferable for those reasons to set out expressly why that consequence followed. Accordingly, it is desirable to give some further exposition of the Court’s reasoning, although no variation of the orders made on 30 August will result.

Ground 2

1. [24]

   Ground 2 in the notice of appeal was in the following terms:

2. [25]

   In order to place this ground in context, it is necessary to refer briefly to the underlying issues on the appeal, which are more fully articulated in the earlier judgment.

3. [26]

   The indictment on which the applicant was put on trial involved 3 counts, a number of other counts dealing with a discrete aspect of the offending having been severed. Count 1, to which the applicant entered a plea of guilty, involved a federal offence of conspiracy to import firearms parts and magazines. He was put on trial on counts 2 and 3. Count 2 alleged a conspiracy to possess more than three firearms (pistols) contrary to s 51D(2) of the Firearms Act 1996 (NSW). Count 3 alleged selling or knowingly taking part in the sale of a pistol to another person on three or more occasions in a 12 month period, contrary to s 51B(1) of the Firearms Act.

4. [27]

   Parts of the written submissions on the appeal referred to the possible overlap between conduct which might fall within count 2 and conduct which fell within count 1. However, whether that complaint, though raised on the pre-trial stay application, was relied on with respect to ground 2 was unclear. However, the Court’s understanding of the primary issue raised by ground 2 was that count 3 was an “aggravated form of count 2” and entitled the appellant to raise “a plea in bar” in accordance with principles in R v Dodd, [28] or involved oppression. The written submissions did not focus on the question of the stay which had been sought pre-trial, but referred to “a very real possibility that the jury convicted the appellant on count 3 on the basis of the possession of firearms or firearm parts for the purposes of sale on three or more occasions.” [29] There was then reference to “further directions” given by the trial judge to the jury.

5. [28]

   In oral submissions, counsel denied that he was relying upon a “plea in bar”. [30] The oral submissions by counsel for the applicant in relation to ground 2 covered five pages of the transcript. [31] There was said to be oppression, apparently based upon the evidence rather than the elements of the offences. There were elements of each offence which were entirely separate and distinct from elements of the other offences. It appeared in the course of the submissions that the real complaint related to the manner in which the case was left to the jury, with little attention being paid to the pre-trial application for a stay.

6. [29]

   The written submissions for the Director referred to the applicant’s notice of motion of 8 June 2016, which sought a stay of either count 2 or, in the alternative, count 1. (The notice of motion also sought the severance of 15 counts which were in fact severed and dealt with on sentence, following pleas of guilty.)

7. [30]

   On 17 June 2016 the trial judge, Whitford SC DCJ, delivered a judgment dealing with the notice of motion, rejecting the application for a stay and granting severance of the 15 counts. With respect to the proposed stay, the judge noted the applicant’s submission that the same evidence was admissible on each charge of conspiracy (counts 1 and 2) and that the same overt acts were available to the prosecutor to prove each count. [32] The commonality of the conduct alleged, rather than the elements of the offences, was relied upon because the complaint was that the prosecution for more than one offence was unfair or oppressive and constituted an abuse of process. However, the judge was satisfied that “[e]ven a cursory examination of [the schedule of evidence prepared by the prosecution] makes plain that there is evidence admissible on the possession conspiracy charge that is irrelevant to the admitted conspiracy to import.”

8. [31]

   The judge also noted the reliance placed by the applicant on the reasoning of this Court in Nahlous v R, [33] a case involving six offences of selling unauthorised “decoders”, and an offence of dealing in the proceeds of crime, being the money obtained from the sale of the decoders. The principle in Nahlous was identified by this court in the following paragraph:

9. [32]

   The judge accepted the principle, but denied its application in the present circumstances. He stated:

10. [33]

    The challenge to this reasoning relied upon two broad propositions. One was that “the totality of the overt acts that could have arisen in relation to the conspiracy alleged in count 2 could only be: (i) the possession of firearms parts following their importation …; (ii) any assembly of pistols from the imported parts, and (iii) the subsequent possession and any warehousing of assembled pistols.” That proposition did not address the issue that the criminality covered by count 2 extended to the elements of the conspiracy itself, between several persons.

11. [34]

    Secondly, the appellant submitted that the conduct identified “was able to be taken into account in respect of count 3 given the way that count was left for the jury’s consideration.” It was this submission which led the Court to consider that ground 2 was, in effect, a complaint about the jury directions with respect to count 3. The jury directions were not part of the pre-trial application.

12. [35]

    The Director submitted that: [35]

13. [36]

    It is true that, after addressing the relationship between count 2 and count 3 the written submissions for the applicant stated: [36]

14. [37]

    The scope of the concession may not have been entirely clear; nevertheless there were two problems underlying the submissions in so far as they complained about an overlap between the overt acts to be relied upon with respect to counts 1 and 2. The first, and substantive, response is that while the same overt acts could have been relied upon by a jury considering counts 1 and 2, those being the possession of unassembled firearm parts in Australia, the element of criminality involved was significantly extended by count 1, involving a conspiracy to import.

15. [38]

    The second, procedural, difficulty is that following the application for a stay, the accused entered a plea of guilty to count 1, the conspiracy to import. Although the notice of appeal referred somewhat obliquely to an appeal against “conviction and sentence”, in circumstances where he had been convicted of 18 offences contained in two indictments and had received two separate sentences, ground 2 merely complained of the failure to grant a stay with respect to count 2, of which he was convicted by a jury following a trial. There was no suggestion that the conviction in respect of count 1 was challenged, nor was it the case that, at the trial, there were overlapping overt acts relevant to count 1 and count 2, because the jury did not have to consider count 1.

16. [39]

    Each of these difficulties means that ground 2 must be rejected for reasons which are analogous to those in Pearce v The Queen. [39] Mr Pearce was charged with two offences arising from a single incident in which he broke into the victim’s dwelling house and beat him with a club, causing serious personal injury. [40] Mr Pearce was charged with two offences, namely (i) maliciously wounding or inflicting grievous bodily harm with intent to do grievous bodily harm (Crimes Act 1900 (NSW), s 33) and (ii) breaking and entering a dwelling house and while therein inflicting grievous bodily harm (Crimes Act, s 110). He sought a stay of the proceedings on the basis that the two charges involved an abuse of process. The basis of the complaint was explained by Kirby J in the following passage:

17. [40]

    Because the elements of the offences differed, the Court held that no plea in bar could arise. [41] In considering whether there should have been a stay of proceedings on the indictment to prevent an abuse of process, the joint reasons continued:

18. [41]

    This reasoning provides a full answer to ground 2: as explained by the trial judge in the pre-trial application judgment, there was no abuse of process in including counts 1, 2 and 3 in an indictment. That point had already been explained in the first judgment in this Court in respect of any supposed abuse in including counts 2 and 3. To the extent that the earlier judgment did not deal with count 1, that was because there had been a plea to count 1 and it was not before the jury. It was not understood that there was any appeal from the conviction on count 1, as there had been in Pearce, despite the fact that Mr Pearce had ultimately entered pleas to both counts at trial. In any event, if the thrust of ground 2 was that counts 1 and 3 between them covered the whole of the criminality involved, that submission should be rejected.

19. [42]

    The challenge to the reasoning in the interlocutory judgment (ground 2) should be rejected on the ground that no error was demonstrated.

Ground 5

1. [43]

   Ground 5 in the notice of appeal read as follows:

2. [44]

   The substance of the applicant’s complaint related to par (d) in the definition of “sell” in s 4(1) of the Firearms Act, pursuant to which “sell” includes “offer for sale, … have in possession for sale or expose or exhibit for sale”. That element of the definition was said to be inapplicable in relation to an offence under s 51 which prohibited a person selling a firearm to a purchaser “unless … the purchaser is authorised to possess the firearm…”. Section 51, it was submitted, “requires an interaction where two persons are involved.” [44] Further, the purchaser must have a specific characteristic, namely being a person not holding a licence or permit permitting him or her to possess the firearm. [45]

3. [45]

   The appellant’s submissions at trial noted that there was a significant dispute between the Crown and the defence in relation to count 3 as to whether the Crown had to prove three actual transactions. [46]

4. [46]

   Ground 5 involved a challenge to one aspect of the directions to the jury with respect to count 3; other complaints about the directions were contained in ground 6. The relevant directions were set out in the earlier judgment and need not be repeated.

5. [47]

   The points identified in appeal ground 5 and addressed in the written submissions were not further articulated in the course of oral argument. Counsel stated: [47]

6. [48]

   The Director’s written submissions on this point were concise: they noted that taking part in a sale, as defined in s 51(3) includes taking, or participating in, any step, or causing any step to be taken in the process of sale, being language which is inconsistent with the limitation to proof of a completed transaction. That submission must be accepted.

7. [49]

   Further, although it was no doubt true that no offence arose under s 51 unless the prospective purchaser was an unauthorised recipient of a pistol, it was not submitted that there was any evidence to suggest that the distribution of the pistols was otherwise than to unauthorised persons. By the time of trial, some 129 pistols had been recovered, none from authorised persons.

8. [50]

   The appellant’s submissions also complained of the failure of the prosecution case to identify the precise steps said to have been taken by the appellant in relation to the sale of the pistols. [48] This complaint about the nature of the prosecution case was not expressly reflected in ground 5, but appeared to relate to the challenge to the directions which were raised in ground 6.

9. [51]

   Accordingly, to the extent that the matters raised by ground 5 were not otherwise dealt with in the first judgment, they should be rejected. Ground 5 is dismissed.

Conclusions

1. [52]

   The application to reconsider the orders made on 30 August 2019 was limited to a request to address the submissions before the Court at the hearing of the appeal; there was, quite properly, no attempt to proffer further material. Whether the application had merit depended entirely upon a consideration of the grounds of appeal said not to have been addressed, the submissions of the appellant, both written and oral, in support of those grounds and a consideration of the reasons given by the Court.

2. [53]

   Because it could not be clearly stated merely by reference to the Court’s published reasons whether grounds 2 and 5 had been adequately addressed, this was an appropriate case to grant leave to reconsider the matter.

3. [54]

   Further reference to the material provided in support of the appeal casts some doubt on whether any further reasoning was required in order to be satisfied that all material and substantial issues had been addressed. However, in the interests of transparency, specific consideration has been given above to the matters said not to have been fully or properly addressed. In the light of that consideration, the Court is satisfied that grounds 2 and 5 should be dismissed. There is therefore no cause to interfere with the order dismissing the appeal against conviction.

4. [55]

   The Court makes the following orders:

   1. (1)

      Grant the applicant leave to apply, pursuant to r 50C(1A) of the Criminal Appeal Rules, to set aside or vary the judgment given on 30 August 2019.

   2. (2)

      Having reconsidered the material proffered in support of grounds 2 and 5, dismiss the application to set aside or vary the orders.